Allen v Chadwick - [2014] SASCFC 100

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
ALLEN v CHADWICK
[2014] SASCFC 100
Judgment of The Full Court
(The Honourable Chief Justice Kourakis, The Honourable Justice Gray and The Honourable Justice Nicholson)
16 September 2014
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - LIABILITY OF DRIVERS OF VEHICLES - GENERALLY
TORTS - NEGLIGENCE - ROAD ACCIDENT CASES - ACTIONS FOR NEGLIGENCE - APPORTIONMENT OF DAMAGES - SEAT BELTS
TORTS - NEGLIGENCE - CONTRIBUTORY NEGLIGENCE - PARTICULAR CASES - ROAD ACCIDENT CASES
TORTS - NEGLIGENCE - INJURIES TO PASSENGERS - DEFENCES OF VOLENTI NON FIT INJURIA, NO BREACH OF DUTY, AND CONTRIBUTORY NEGLIGENCE - GENERALLY
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - GENERAL PRINCIPLES
DAMAGES - PARTICULAR AWARDS OF GENERAL DAMAGES - SOUTH AUSTRALIA - AWARDS IN RESPECT OF MOTOR ACCIDENTS OCCURRING AFTER 7 FEBRUARY 1987
DAMAGES - MEASURE AND REMOTENESS OF DAMAGES IN ACTIONS FOR TORT - MEASURE OF DAMAGES - PERSONAL INJURIES - NON-PECUNIARY DAMAGE - IN GENERAL
Appeal and cross-appeal against the decision of a Judge of the District Court following a trial. The plaintiff sustained spinal injuries resulting in permanent paraplegia as a result of the defendant’s negligence in the driving of a motor vehicle in which the plaintiff was a rear seat passenger. At the time of the accident, the defendant was intoxicated and the plaintiff was not wearing a seatbelt. The Judge declined to make a reduction of 50 per cent on account of the defendant’s intoxication in accordance with section 47 of the Civil Liability Act 1936 (SA). The Judge held that no person in the plaintiff’s situation could reasonably be expected to have had any practical choice other than to get into the vehicle and that the exception in section 47(2)(b) was thus enlivened. The defendant challenged this finding on the appeal. The Judge reduced the plaintiff’s damages by 25 per cent on account of her failure to wear a seatbelt in accordance with section 49 of the Civil Liability Act. The plaintiff challenged this finding on the cross-appeal. The plaintiff and the defendant each challenged aspects of the Judge’s assessment of damages.
Whether the Judge erred in finding that the plaintiff could not reasonably be expected to have avoided the risk of being a passenger in a vehicle driven by an intoxicated person.
Whether the Judge erred in reducing the damages award by 25 per cent on account of the plaintiff’s failure to wear a seatbelt. Where the plaintiff claimed that she was prevented from fastening her seatbelt due to the manner of the defendant’s driving.
Whether the Judge erred in his assessment of the damages to be awarded on account of non-economic loss, past gratuitous services, past paid care, future care, additional holiday care, home accommodation, transport, case management and future treatment. Whether the Judge erred in making an award of $26,722.50 in respect of past gratuitous services rendered by the plaintiff’s daughter, who was aged between five and eight years at the relevant times. Whether the Judge erred in construing the restriction in section 58(2) of the Civil Liability Act that an award for past gratuitous services must not exceed an amount equivalent to four times State average weekly earnings to mean that the award for a given period must not exceed four times State average earnings over that period. Whether the Judge erred in holding that the additional care that the plaintiff would require in assisting her to raise her children was not compensable. Whether the Judge erred in awarding damages for future care and assistance on the basis of 10 hours per week of domestic assistance and seven hours per week of personal care. Whether the Judge’s award in respect of case management was impermissible having regard to section 57 of the Civil Liability Act, which precludes an award of damages for the cost of the investment or management of the amount awarded. Whether the Judge erred in his assessment for future treatment. Whether the Judge erred in making an allowance of $199,162.00 for future housing and accommodation. Whether the Judge erred in making an allowance of $18,000.00 for additional assistance required by the plaintiff while on holidays. Whether the Judge erred in making an award of $174,485.13 for transport. Whether the Judge erred in assessing the plaintiff’s loss of life expectancy at 10 per cent.
Held (per Gray and Nicholson JJ; Kourakis CJ agreeing with point 2) allowing the appeal and cross-appeal in part:
1. Having regard to the objective circumstances facing the plaintiff, the Judge was correct to conclude that the she could not reasonably be expected to have avoided the risk of re-entering the vehicle.
2. The Judge erred in reducing the plaintiff’s damages by 25 per cent on account of her failure to wear a seatbelt. The mandatory statutory reduction under section 49 of the Civil Liability Act will not apply where a plaintiff’s failure to wear a seatbelt occurred in circumstances of involuntariness or as a result of the unlawful act of another person. The Judge erred in finding that it was impossible to conclude that the plaintiff was prevented from fastening her seatbelt as a result of the defendant’s manner of driving. The plaintiff adduced evidence which would be capable of giving rise to an act of a stranger defence. Accordingly, section 49 does not apply and the finding of contribution is set aside.
3. In assessing the plaintiff’s non-economic loss, it cannot be said that the Judge’s discretion miscarried in fixing a numerical value of 52 as against the maximum of 60.
4. The Judge’s award in regard to past care was entirely reasonable.
5. The Judge erred in his interpretation of the restriction in section 58(2) of the Civil Liability Act that an award for past gratuitous services must not exceed an amount equivalent to four times State average weekly earnings. The correct interpretation of section 58(2) is that the whole award for past gratuitous services must not exceed an amount equivalent to four times State average weekly earnings. The Judge’s award under this heading reduced accordingly. This was not a case to which section 58(3) of the Civil Liability Act could apply.
6. The assessments of seven hours per week for personal care and ten hours per week for domestic assistance do not seem to be obviously unreasonable. It has not been established that the Judge erred in his findings of fact in relation to these awards.
7. The award in respect of case management was not directed to the investment or management of the monies awarded in a conventional way. Nevertheless, this is a form of loss that falls under the plaintiff's statutory entitlement for damages for non-economic loss such that the Judge was in error in making a separate allowance in this respect.
8. The defendant did not establish that the Judge erred in his assessment of the award for future treatment.
9. The Judge’s treatment of the award for future housing and accommodation was unsupported by the evidence in a number of respects and suggested a measure of inconsistency in connection with the modification costs. A broad allowance of $150,000.00 is substituted.
10. The broad allowance made by the Judge in respect of holidays cannot be said to be inappropriate.
11. In assessing the award for transport, the Judge failed to have regard to the expenses the plaintiff would have incurred in any event in owning and running a motor vehicle. An award of $80,000.00 is substituted.
12. The Judge’s assessment of the plaintiff’s loss of life expectancy was open on the evidence.
Held per Kourakis CJ (dissenting in part):
1. An enquiry into whether the plaintiff could reasonably be expected to have avoided the risk, where consideration is given to her personal vulnerability, adopts a subjective standard.
2. Applying the normative standards by which a matter of this kind should be judged, the risk of riding in a car with a drunk driver late as night can only be assessed as very high. On appreciating the risk, a reasonable woman in the plaintiff's position would have considered the alternatives.
3. There was nothing about the objective circumstances in which the plaintiff found herself that would compromise the reasoning capacity of a reasonable woman in her position. The reasonable person would have refused to get into a car being driven by someone known to have drunk excessively.
4. The plaintiff's damages should have been reduced by 50 percent pursuant to s 47 of the Civil Liability Act.
Civil Liability Act 1936 (SA) s 44, s 47, s 48, s 49, s 52, s 57 and s 58; Road Traffic Act 1961 (SA) s 80; Australian Road Rules (SA) r 265; Wrongs Act 1936 (SA) s 35A(b), referred to.
Caterson v Commissioner for Railways (1973) 128 CLR 99; Ferrett v Worsley (1993) 61 SASR 234; Vos v Hawkswell [2010] QCA 92; Wagner v International Railway Company (1921) 232 NY 176; Norcock v Bowey [1966] SASR 250; Mayer v Marchant (1973) 5 SASR 567; Police v Barber (2010) 108 SASR 520; The Queen v Falconer (1990) 171 CLR 30; Fox v Percy (2003) 214 CLR 118; Jenkins v Maddeford (1989) 157 LSJS 155; Cooper Brookes (Wollongong) Proprietary Limited v The Commissioner of Taxation of the Commonwealth of Australia (1980) 147 CLR 297; Garland v Clifford (1996) 67 SASR 47; Terry v Leventeris (2011) 109 SASR 358; CSR Ltd v Eddy (2005) 226 CLR 1; Crockett v Roberts (No 3) (2002) 11 Tas R 393; McHale v Watson (1966) 115 CLR 199; Joslyn v Berryman (2003) 214 CLR 522; Town of Port Headland (No 2) [2012] WASCA 212, considered.

ALLEN v CHADWICK
[2014] SASCFC 100
Full Court: Kourakis CJ, Gray and Nicholson JJ

KOURAKIS CJ: At about 2:00am on 12 March 2007 the respondent, Ms Chadwick, suffered catastrophic injuries in a motor vehicle accident on the outskirts of Port Victoria. Shortly before the accident, Ms Chadwick had driven the motor vehicle, a Holden station wagon (the station wagon), around the streets of Port Victoria. Her de facto partner Mr Allen, the appellant, and his friend, Mr Martlew were passengers. At a spot no more than 200 metres past the limits of the township Ms Chadwick stopped her car to go to the toilet on the side of the road. When she left the car Mr Allen assumed the driver’s seat even though he was drunk. Despite knowing that Mr Allen had been drinking, Ms Chadwick got into the backseat of the station wagon and Mr Allen drove back into Port Victoria. Later, whilst driving out of the township, Mr Allen accelerated rapidly in an easterly direction along Main Street and, after crossing over Wilson Terrace, failed to take a right hand curve in the Port Victoria-Wauraltee Road. Ms Chadwick, who was not wearing a seatbelt, was thrown out of the backseat of the station wagon and suffered serious spinal injuries which left her a paraplegic. Mr Allen was subsequently found to have had a blood alcohol level of 0.22 grams of alcohol per millilitre of blood at the time of the accident.
The two issues as to liability arising on this appeal are:
(i)whether the Judge was right to find that Ms Chadwick should suffer a 25 per cent reduction in her damages in accordance with s 49 of the Civil Liability Act 1936 (SA) (the CLA) by reason of her failure to wear a seatbelt; and
(ii)whether the Judge was right to find that Ms Chadwick should not suffer a 50 per cent reduction in her damages, pursuant to s 49 of the CLA, because she was a passenger in a car driven by a person with a blood alcohol concentration of more than 0.15 grams in 1000 millilitres of blood and she could not reasonably be expected to have avoided the risk of travelling with an intoxicated driver.
I would hold that the Judge decided the first question wrongly because, on his Honour’s own findings, Ms Chadwick was unable to secure her seatbelt because, panicked by the reckless driving of Mr Allen, she had tugged at the seatbelt in a way which engaged the locking mechanism.
I would hold that the Judge erred in deciding the second question as he did because he wrongly took into account Ms Chadwick’s personal characteristics and circumstances in holding that she could not reasonably be expected to have declined to get back in the station wagon. In my view a person, standing in Ms Chadwick’s position, acting reasonably would have seen that she was just several hundred metres out of the town centre and would have appreciated that the safest course was to walk back into town.
The parties also contest by appeal and cross-appeal the Judge’s assessment on various heads of damages. I deal with those issues of quantum at [60]-[71] below.
The Evidence
The events which culminated in Ms Chadwick’s injuries relevantly started on the morning of the previous day. On 10 March 2007 Ms Chadwick and Mr Allen drove to Port Pirie with their two children in their car. Ms Chadwick was just 21 years of age at the time and pregnant with her third child. In Port Pirie they met Mr Allen’s friend, Mr Martlew. On the morning of 11 March 2007 they set off for Port Victoria with Mr Martlew and his two children, in Mr Martlew’s station wagon. On the way they stopped at Kadina where they spent some time at a field day. It was in Kadina that, on Ms Chadwick’s evidence, Mr Allen and Mr Martlew commenced what was to become a long day of drinking alcohol. The men’s drinking continued on the journey to Port Victoria. They drank canned spirit mixes. For some of the journey, Ms Chadwick passed the cans from an esky in the luggage compartment of the station wagon to Mr Allen who was in the front passenger seat.
The party arrived in Port Victoria in the early evening. They took rooms at the Port Victoria Hotel Motel (the Hotel). All three adults then visited the foreshore playground with the children. Mr Allen testified that whilst at the playground he fell off some play equipment. Mr Martlew also gave evidence that he saw Mr Allen fall. Ms Chadwick claimed that she did not notice the fall. Sometime after returning to the Hotel, the children were put to bed. The adults continued to drink alcohol at the Hotel.
The Judge found that Ms Chadwick was “all but constantly” in the company of Mr Allen during the day and that she must have seen him drinking many times in the car, the beaches and the hotels. The pharmacologist, Professor White, gave evidence that assuming a 12 hour relatively uniform drinking period, Mr Allen must have been consuming nearly two standard drinks every hour.
Ms Chadwick testified that she did not consume any, or at least much, alcohol in the course of the day. Mr Allen gave evidence that she did drink some alcohol during the day. Ms Kneebone, the Manager of the Hotel, testified that Ms Chadwick drank a “shot of tequila, a Coke and a Jack Daniels and Coke” which she did not finish. An analysis of a sample of Ms Chadwick’s blood which was taken shortly after the accident produced a zero blood alcohol result.
Sometime after midnight Ms Chadwick, Mr Allen and Mr Martlew left the Hotel in the station wagon looking for cigarettes and a telephone box. Mr Martlew testified that he noticed that Mr Allen was uncoordinated when they left the Hotel. Ms Chadwick was the driver. There was some uncertainty in the evidence about the length of time over which they drove around Port Victoria on that search but Ms Chadwick testified that it was for about 10-15 minutes.
Port Victoria is bounded to the west by Spencer Gulf. The streets of the township are set out on a square grid pattern. I will describe the orientation of the streets on the assumption that they run in a true north, south, east and west direction even though the grid is rotated clockwise approximately 20 degrees from true north. Port Victoria has an eponymously named main street which runs east-west. On the eastern boundary the township it is bounded by Wilson Terrace. Immediately to the east of Wilson Terrace there is an intersection into which the Maitland-Port Victoria Road and the Port Victoria-Wauraltee Road converge forming a single access road into the township which becomes Main Street.
In the search for cigarettes, Ms Chadwick eventually drove the station wagon across Wilson Terrace and along the Port Victoria-Wauraltee Road a short distance before she and her passengers realised that they had left the township. Mr Martlew described that position as being about 200-500 metres out of the town. Ms Chadwick executed a U-turn and stopped the car on the side of the road to go to the toilet. Some years later Ms Chadwick identified for the traffic engineer, Mr Hall, a position on the Port Victoria Road at which she said she had stopped the station wagon. The position indicated by Ms Chadwick by and large coincides with the position described by Mr Martlew in his evidence.
When Ms Chadwick returned to the car, she found that Mr Allen had climbed into the driver’s seat. Ms Chadwick testified that she was reluctant to get back into the car and that she told Mr Allen she wanted to drive. Ms Chadwick gave evidence that she did not want Mr Allen to drive because he had been drinking. Ms Chadwick testified that she only got back into the car after Mr Allen said “get the fuck in the car”. She climbed into the backseat and Mr Allen drove off even before she was able to close the back door. After Ms Chadwick managed to shut the back door, she attempted to put on her seatbelt. Ms Chadwick testified that she was not able to do so before the accident because the seatbelt continued to lock up. The Judge accepted that the combination of Mr Allen’s erratic driving and Ms Chadwick’s action in tugging on the seatbelt too quickly caused its mechanism to lock.
Mr Allen drove the station wagon back into Main Street but then executed a U-turn about one third of the way along it and drove the station wagon back onto the Port Victoria-Wauraltee Road. He failed to safely negotiate the curve to the right on that road, causing the station wagon to roll.
Ms Chadwick testified that she was not aware that Mr Allen was intoxicated. Notwithstanding the overwhelming inference to the contrary arising from the evidence I have related, Ms Chadwick explained the manifest inconsistency between her professed ignorance of Mr Allen’s drunkenness and her reluctance to get into the car by testifying that it was her position that she believed that a person who had drunk any alcohol should not drive a car irrespective of his or her apparent state. Ms Chadwick testified that she only got into the car because of Mr Allen’s demands and because she was disorientated.
Ms Chadwick testified that she did not realise that the car was just 200 metres away from Wilson Terrace when Mr Allen got into the driver’s seat. However, Mr Martlew’s evidence was that he could see the lights of Port Victoria from the spot where the station wagon had stopped. Other evidence also showed that the street lights on Wilson Terrace and Main Street are visible from that position.
Failure to wear a seatbelt
The Judge reduced Ms Chadwick’s damages by 25 per cent pursuant to s 49 of the CLA for her failure to wear a seatbelt. Ms Chadwick cross-appeals that part of the judgment on the grounds that she was not in breach of her obligation to wear a seatbelt because she was unable to fasten her seatbelt given it had locked up due to Mr Allen’s erratic driving.
It was for Mr Allen to prove that Ms Chadwick was not wearing a seatbelt as required by the Road Traffic Act 1961 (SA) (the RTA). The RTA, in turn, requires compliance with Rule 265 of the Australian Road Rules (SA). A person does not offend against that Rule if the failure to wear a seatbelt is caused by the act of a stranger. In Ms Chadwick’s case there is an evidentiary basis for that defence and it therefore fell to Mr Allen to show, on the balance of probability, that Ms Chadwick’s failure to wear a seatbelt was not caused by the act of a stranger. I would find that Mr Allen has failed to discharge that onus.

The Judge found that, despite Mr Allen’s driving, Ms Chadwick would have been able to fasten her seatbelt if she had taken her time to extend the seatbelt instead of tugging at it quickly. The Judge also found that Ms Chadwick did so because of her impatience and impetuosity which arose out of her anger at Mr Allen’s decision to take over the driving. On the Judge’s own finding, therefore, Ms Chadwick’s actions were a direct and natural response to Mr Allen’s bad driving. It must be remembered that Mr Allen had driven off before Ms Chadwick had even had an opportunity to shut the door. In those circumstances Ms Chadwick did not act unreasonably in impatiently and hurriedly attempting to engage the seatbelt.
To the extent that his Honour’s reasons imply a finding that Ms Chadwick acted as she did only out of anger at Mr Allen for taking over the driving and not by reason of the urgency created by Mr Allen’s driving, the evidence does not support that finding.
Travelling with a Drunk Driver
The Judge declined to reduce Ms Chadwick’s damages pursuant to s 47 of the CLA on the grounds that she could not reasonably have been expected to avoid the risk of getting back in the station wagon when Mr Allen assumed the driver’s position. Mr Allen appeals against that finding on the grounds that the Judge erred in fact in finding that Ms Chadwick did not know how intoxicated he was and that she was just several hundred metres from the Main Street of Port Victoria at the time she got back into the station wagon. Mr Allen also appeals on the ground that the Judge erred in law in construing the standard imposed by s 47 CLA as a subjective one. I would uphold all three of the appellant’s complaints. My reasons follow.
Section 47, CLA provides:
47—Presumption of contributory negligence where injured person relies on care and skill of person known to be intoxicated
(1)If—
(a)     the injured person—
(i)was of or above the age of 16 years at the time of the accident; and
(ii)relied on the care and skill of a person who was intoxicated at the time of the accident; and
(iii)was aware, or ought to have been aware, that the other person was intoxicated; and
(b)     the accident was caused through the negligence of the other person; and
(c)     the defendant alleges contributory negligence on the part of the injured person,
contributory negligence will, subject to this section, be presumed.
(2)Subject to the following exception, the presumption is irrebutable.
Exception—
The injured person may rebut the presumption by establishing, on the balance of probabilities, that—
(a)    the intoxication did not contribute to the accident; or
(b)    the injured person could not reasonably be expected to have avoided the risk.
(3)In a case in which contributory negligence is to be presumed under this section, the court must apply a fixed statutory reduction of 25 per cent in the assessment of damages.
(4)A passenger in a motor vehicle is taken, for the purposes of this section, to rely on the care and skill of the driver.
(5)If, in the case of a motor accident, the evidence establishes—
(a)     that the concentration of alcohol in the driver's blood was .15 grams or more in 100 millilitres of blood; or
(b)     that the driver was so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle,
the fixed statutory reduction prescribed by subsection (3) is increased to 50 per cent.
(6)This section operates to the exclusion of the defence of volenti non fit injuria insofar as it relates to the voluntary assumption of a risk arising from the intoxication of another.
Section 47 of the CLA is expressed in terms which the law has long understood to impose an objective, normative standard. I refer, for example, to the supplementation of the injured person’s subjective awareness of the driver’s intoxication with an objective test by the words “ought to have been aware of the impairment”.
The words “could not reasonably be expected to have avoided the risk” similarly impose an objective standard for the avoidance of risk exception enacted by s 47(2)(b) of the CLA. Moreover the imposition of a normative standard is to be expected given the subject matter of the section. First, tortious standards of care are generally objective. Secondly, the purpose of s 47 CLA is to balance the interests of the victims of intoxicated persons against the interests of the wider public who, through insurance arrangements, or by paying a premium on the cost of goods and services, share the financial burden caused by tortious conduct. That financial burden, not to mention much personal suffering, can be reduced by measures which encourage people who are in a position to avoid the risk to take greater responsibility for their own safety. Just as tortious liability is incurred only when a person breaches an objective standard of care so too the law has always provided for the reduction of that liability when the injured person has failed to meet the standard of self care which the community expects its members to take.
It is a fundamental principle of the common law of tort that liability is determined by reference to the powers of observation, reasoning, foresight and risk assessment of the reasonable person. The liability imposed by the law of tort is not voluntarily assumed, as it is in contract, and for that reason the common law imposes an obligation to take only that care which a person with reasonable foresight would take. The common law also limits the liability of a tortfeasor to the damage which the injured person could not himself or herself have avoided by taking reasonable care for his or her own welfare. Statutory intervention long ago removed contributory negligence as a complete defence and instead provided for an apportionment based on the relative fault of the tortfeasor and his or her victim. However, the standard of care required of victims of tort remained an objective one.
In McHale v Watson,[1] the High Court recognised, what remains, the single exception to the objective standard in the case of child victims. It is a solitary exception which emphasises the rigor of the rule. Indeed, the rationale for the child exception identified in that case was that childhood was a universally shared condition and, for that reason, allowing a lower standard for children was not inconsistent with the maintenance of an objective test in all other cases. Even though universality appears to be a necessary condition for an exception to the objective standard, it is not a sufficient condition because, for example, there is no analogous exception for the aged.[2] The exception to the objective standard in McHale v Watson did not in any other respect signify a relaxation of the objective standard required of the victims of negligence.
[1] (1966) 115 CLR 199.
[2] Cf Joslyn v Berryman (2003) 214 CLR 552 at [32]-[34].
In Joslyn v Berryman McHugh J emphasised the strictness of the application of the objective standard to the issue of contributing negligence as follows: [3]
Ever since Lynch v Nurdin[4], common law courts have accepted that, in determining whether a child is guilty of contributory negligence, the relevant standard of care is that to be expected of an ordinary child of the same age. But otherwise the plaintiff is held to the standard of care expected of an ordinary reasonable person engaging in the conduct that caused the plaintiff's injury or damage. No exception should or could in principle be made in the case of the passenger accepting a lift from an intoxicated driver.
It is true that the reasoning in some decisions[5] concerned with a passenger accepting a lift with an intoxicated driver appears to suggest that this class of case, like those concerned with children, is another exception to the general rule that the test for contributory negligence is an objective test. But, in principle, intoxicated drivers cannot be an exception to the general rule. Cases like Banovic v Perkovic[6], Nominal Defendant v Saunders[7] and McPherson v Whitfield[8] cannot be followed in so far as they hold or suggest that a passenger is guilty of contributory negligence in accepting a lift from an intoxicated driver only if the passenger knew, or was aware of signs indicating, that the driver was intoxicated. In my view, the law on this subject was correctly stated by Cooper J in Morton v Knight[9] and by Clarke JA in McGuire v Government Insurance Office (NSW)[10].
The issue in a case like the present is not whether the passenger ought reasonably to have known of the driver's intoxication from the facts and circumstances known to the passenger. The relevant facts and circumstances include those which a reasonable person could have known by observation, inquiry or otherwise. In cases of contributory negligence outside the field of intoxicated passengers and drivers, the courts take into account as a matter of course those facts and circumstances that the plaintiff could have discovered by the exercise of reasonable care[11]. In Morton, Cooper J relied, correctly in my opinion, on the reasoning in the judgments of this Court in O'Neill v Chisholm[12] and held that the relevant facts and circumstances included those which a reasonable person would have ascertained.The test applied by all members of the Court in O'Neill, including Walsh and Gibbs JJ who found no contributory negligence, was whether the passenger ought to have realised that alcohol had impaired the driver's capacity to drive.
Hence, the issue is not whether a reasonable person in the intoxicated passenger's condition – if there could be such a person – would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person – a sober person – would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver's intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication.
In other areas of contributory negligence, a plaintiff cannot escape a finding of contributory negligence by pleading ignorance of facts that a reasonable person would have known or ascertained. A pedestrian or driver who enters a railway crossing in the face of an oncoming train cannot escape a finding of contributory negligence because he or she was not, but should have been, aware of the train. Nor does it make any difference that the pedestrian or driver had defective hearing or sight. Contributory negligence is independent of "the idiosyncrasies of the particular person whose conduct is in question."[13] Similarly, the fact that the passenger's intoxicated condition prevents him or her from perceiving the risks attendant on driving with an intoxicated driver does not absolve the passenger from complying with the standard of care required of an ordinary reasonable person. If an intoxicated pedestrian falls down a manhole that a sober person would have seen and avoided, it seems impossible to hold that the pedestrian was not guilty of contributory negligence because the pedestrian's condition prevented him or her from seeing the danger. At all events, it seems impossible to so hold without introducing a subjective standard into this area of law. And I can see no reason in principle or policy for distinguishing between the intoxicated pedestrian and the intoxicated passenger.
[3] (2003) 214 CLR 552 at [35]-[39].
[4] (1841) 1 QB 29 [113 ER 1041].
[5] Banovic v Perkovic (1982) 30 SASR 34 at 36-37; Nominal Defendant v Saunders (1988) 8 MVR 209 at 215; McPherson v Whitfield [1996] 1 Qd R 474.
[6] (1982) 30 SASR 34.
[7] (1988) 8 MVR 209.
[8] [1996] 1 Qd R 474.
[9] [1990] 2 Qd R 419.
[10] (1990) 11 MVR 385 at 388.
[11] See, for example, O'Connor v South Australia (1976) 14 SASR 187; Preston Erections Pty Ltd v Rheem Australia Ltd (1978) 52 ALJR 523; 21 ALR 379; Purcell v Watson (1979) 26 ALR 235; AWA Ltd v Daniels (t/as Deloitte Haskins & Sells) (1992) 7 ACSR 759.
[12] (1972) 47 ALJR 1.
[13] Glasgow Corporation v Muir [1943] AC 448 at 457.
Ms Chadwick contended for a largely subjective standard for determining whether the injured person ought to have known that the defendant’s judgment was impaired by alcohol or drugs and for determining whether or not he or she could reasonably have been expected to avoid the risk inherent in placing reliance on that driver.
The appellant relied heavily on the use in s 47 CLA of the words “injured person”. The appellant submitted that the choice of the term “injured person” rather than the more familiar expression “reasonable person” indicated a legislative intention to apply a subjective test. However, the use of the term “injured person” is plainly no more than a convenient drafting device to refer to the party in the proceedings whose damages may be reduced by the operation of s 47 CLA. The term is first used in s 47(1) of the CLA and follows through to s 47(2).
Moreover, s 47 CLA would have read nonsensically if the term “reasonable person” was used instead of “injured person” without also adding the words “in the position of the injured person”. It would also have been necessary to add these words in order to determine the objective facts and circumstances, knowledge of which is to be attributed to the reasonable person. The resulting compound expression “reasonable person in the position of the injured person” would clearly have imposed an objective test. Section 47 CLA imposes the same objective standard but in a less clumsy drafting style.
The majority judgment at [116] explains that the words of the exception in s 47(2)(b) CLA “the injured person could not reasonably be expected to have avoided the risk” do not qualify the behaviour of the injured person. With respect it is plainly right that the words do not qualify the behaviour of the injured person. That behaviour has occurred, it does not fall to be qualified but to be measured against an objective normative standard. That standard does not vary accordingly to the “reasonable” view of the judge or judges constituting the court. It is an objective standard which, as shall shortly be seen, does not allow for the personal limitations of a plaintiff other than his or her infancy.
The imposition of an objective standard by s 47 CLA is also consistent with the other provisions of Parts 6 and 7 of the CLA. Indeed, the incorporation of a subjective test into s 47 CLA would destroy the coherent operation of those aforementioned Parts. Section 31(1) of the CLA is a useful comparator for this purpose. Section 31(1) of the CLA codifies the pre‑existing common law standard for determining liability in negligence. The phrase “a reasonable person in the defendant’s position” (italics added) in that section no more imports the subjective attributes of the defendant than the phrase “the injured person could not reasonably be expected to have avoided the risk” imports the subjective attributes of the injured person for the purposes of s 47 CLA.
Section 44(1) of the CLA was enacted in 2002 in response to the Ipp Report[14] and is the legislative response of the South Australian Parliament to the perception that the standard of self care demanded by the victims of negligence had unduly been relaxed. Section 44 of the CLA provides:
[14] Law of Negligence Review Panel, Review of the Law of Negligence, Final Report (Commonwealth of Australia, 2001) (the Ipp Report).
44—Standard of contributory negligence
(1)The principles that are applicable in determining whether a person has been negligent also apply in determining whether a person who suffered harm (the “plaintiff”) has been contributory negligent.
(2)This section is not to derogate from any provision of this Act for reduction of damages on account of contributory negligence.
Despite the plain words of s 44(1) of the CLA, the appellant’s submission is that s 47 CLA should be construed in a way which reduces the standard of self care required of an injured person to allow for his or her subjective debility. On the appellant’s construction, the words “reasonably expected” require no more than that the injured person does his or her best to avoid placing his or her welfare in the hands of a person known to be intoxicated. That construction is a radical departure from the centuries old common law approach. It is plainly inconsistent with High Court authority and the approach of the Court of Appeal of Western Australia in Town of Port Headland v Hodder (No 2).[15]The authority for injecting this subjectivity into the law of tort is said to be a statutory provision forming part of a suite of amendments which was calculated to address, what the Parliament saw as, the mischief of a creeping judicial relaxation of the objective standard.
[15] (2012) WASCA 212.
Ms Chadwick put a strained argument that the purpose of s 44(2) of the CLA is to allow for the operation of, what she contends, is the subjective test enacted by s 47 CLA. I reject that submission. Section 44(2) of the CLA does not carve out an island of subjectivity in the law of negligence. To the contrary, the purpose is to ensure that the statutory “Shirt” formula enacted by s 32(2) of the CLA does not detract from the presumptions of contributory negligence enacted by s 47(2) and s 49(2) of the CLA. Those subsections are premised on the risk of relying on an intoxicated person or not wearing a seatbelt being an unacceptable one. The statutory presumption created by those sections cannot be contested by applying the “Shirt” formula. Rebuttal of the presumption is limited to those circumstances in which any alternative course of action creates a risk so grave that it is unreasonable to expect an injured person to take it.
The legislative history of s 47 CLA also tells against the construction of s 44(2) of the CLA for which Ms Chadwick contends. Section 47 CLA retains the essential structure of s 35a(1)(j) of the Wrongs Act 1936 (SA) (the Wrongs Act), which was enacted in 1986 and came into operation on 8 February 1987, other than that its scope has been broadened beyond motor vehicle accidents to all cases in which an injured claimant has put his or her welfare in the hands of a person who happens to have been intoxicated at the time of the accident causing injury.
The progenitor of s 47 CLA, s 35a(1)(j) of the Wrongs Act, provided:
35a(1)Notwithstanding any other law, where damages are to be assessed for or in respect of an injury arising from a motor accident, the following provisions apply:
…
(j)if –
(i)the injured person (not being a minor) was, at the time of the accident, a voluntary passenger in or on a motor vehicle;
and
(ii)the driver’s ability to drive the motor vehicle was impaired in consequence of the consumption of alcohol or a drug and the injured person was aware, or ought to have been aware of the impairment,
it shall be presumed that the injured person was negligent in failing to take sufficient care for his or her own safety, and the damages shall be reduced to such extent as may be just and equitable having regard to that negligence;
…
35a(3)A person shall not be regarded as a voluntary passenger under subsection (1)(j) if, in the circumstances of the case, that person could not reasonably be expected to have declined to become a passenger in or on the vehicle.
To understand why it was thought necessary to enact a statutory presumption of contributory negligence in accepting a ride with a drunk driver, it must be remembered that at the time of the enactment of s 35a(1)(j) of the Wrongs Act, the understanding of the risk of, and social attitudes to, drink driving were not as deeply and widely held as is now the case. Section 35(a)(1)(j) of the Wrongs Act did not mandate a minimum reduction but left the degree of the apportionment to the Court. Importantly, there was no express statutory modification to the objective standard of contributory negligence in its application to what the injured person ought to have appreciated about the driver’s intoxication or as to what could reasonably have been expected of that person in declining to become a passenger. The effect of s 35a(3) of the Wrongs Act was to place the onus on the plaintiff to show that becoming a passenger should not be regarded as contributory negligence. Section 35a(3) required the plaintiff to demonstrate a compelling reason for taking the risk, on which the provision is premised, of driving with an intoxicated driver.

There can be no doubt but that s 35a(1)(j) was intended to effect a more rigorous approach to the reduction of damages for contributory negligence when a plaintiff had voluntarily accompanied a driver that he or she knew, or ought to have known, was impaired by alcohol.
In July 1998 amendments to the then Wrongs Act were made to further address claims made by persons injured in motor vehicle accidents involving the consumption of alcohol and to more closely prescribe reduction of damages awards for contributory negligence. The relevant provisions were renumbered as s 35A(1)(ja) and s 35A(3a) and provided:
35A(1)(ja)If –
(i)    the injured person (not being a person under the age of 16 years) was, at the time of the accident, a passenger in or on a motor vehicle; and
(ii)     the driver of the vehicle –
(A)had consumed alcohol in a quantity sufficient to result in a concentration of .08 grams or more of alcohol being present in 100 millilitres or his or her blood at that time of the accident; or
(B)had consumed alcohol or a drug in a quantity such that his or her ability to drive a motor vehicle was impaired at the time of the accident; and
(iii)    the injured person was aware, or ought to have been aware, that the driver of the vehicle had consumed alcohol or a drug in such a quantity, the damages to be awarded must be reduced by the prescribed percentage.
…
35A(3a)If, in the circumstances of the case, the injured person could not reasonably be expected to have avoided travelling as a passenger in or on the motor vehicle, or as a passenger outside the passenger compartment of the motor vehicle as the case may be.
The percentages prescribed by s 35A(6) of the Wrongs Act were 50 per cent for a blood alcohol concentration of 0.15 per cent or more and 25 per cent in any other case.
In introducing the amendments, the then Treasurer declared that the Government and the South Australian community were concerned about alcohol consumption and related road use. The Treasurer identified the mischief to which the amendments were directed in this way:[16]
It is arguable that the common law has been slow to reflect the community’s disapproval of ‘drink driving’ or, indeed, of travelling with ‘drink drivers’. A review of the cases involving contributions from drivers and passengers, where alcohol induced negligence is the cause of a motor vehicle accident, demonstrates that a degree of inconsistency in the determinations made. Arguably, there is a degree of unwarranted leniency shown towards some claimants notwithstanding the involvement of alcohol.
[16] South Australia, Second Reading Speech, Legislative Council, Thursday 4 June 1998, 861-862 (The Hon R.I. Lucas, Treasurer).
The Treasurer declared the purpose of the amendments to be to streamline the approach to the handling of alcohol related cases by setting out reductions in accordance with mandatory minimums. The Treasurer hoped that the change would “act as reinforcement to other drink drive counter measures” and that it would “reduce legal argument as a decision would be based on an objective and clearly defined test”.
It can immediately be seen that the 1998 amendments not only maintained the presumptions adverse to the interests of injured passengers first enacted in 1986, but went further and prescribed substantial minimum reductions on account of contributory negligence. The reductions were mandated without introducing any subjectivity into the standard to be applied to the injured passenger’s imputed appreciation of the driver’s intoxication or to that person’s decision not to decline to join the driver in the car.
Moreover, the Second Reading Speech shows that the mischief to which the amendment was directed was twofold. The first object was to address the perceived divergence of views between the judiciary and the community about the degree of responsibility which passengers in cars driven by drunk drivers should bear for their injuries. The second object was to introduce a greater measure of consistency and objectivity in the reductions.
As I earlier observed, the amendments made to the CLA in 2002, which rendered the applicable provisions in their current form, were part of a package of measures intended to implement the recommendations of the Ipp Report. It was a key recommendation of that report that legislation reflect the community demand that its members accept a greater measure of responsibility for their safety. The 2002 amendments to the CLA gave effect to that recommendation by modifying the standard of care required to address obvious risks[17] and by the enactment of s 44(1) of the CLA. It is manifestly inconsistent with the plain purpose of those provisions to construe s 44(2) of the CLA as subjectivising the standard required of passengers by s 47 of the CLA. The incongruity of such a construction can readily be demonstrated. Section 31 of the CLA prescribes the standard of duty of care owed by one person to another to be that of a reasonable, sober person. Section 44(1) assimilates the standards of care owed to another and to oneself for the purpose of contributory negligence.
[17] Civil Liability Act 1936 (SA) s 36, s 37, s 38.
Yet on the respondent’s construction of s 44(2) and s 47 of the CLA, subjective factors such as the intoxication of the injured passenger would be taken into account in determining whether they ought to have been aware of the driver’s intoxication and in considering whether it is reasonable to expect the injured person to have avoided the risk of putting their safety in the hands of the person who was intoxicated. So too, on the respondent’s construction, must the injured person’s impetuosity, or witlessness be taken into account. That construction would transform s 47 CLA into the converse of what was intended by the enactment of its progenitors even though the secondary materials show that the legislature had become even more concerned to more strongly address the mischief arising from persons unreasonably putting their safety in the hands of drunks.
I acknowledge that the application of an objective standard to injured persons who, through no fault of their own, do not have the faculties of the reasonable person, has the appearance of unfairness. However, the purpose of the law of negligence is to adjust losses between members of the community in a way which balances the value of personal autonomy with the need to moderate excessive risk taking and to compensate its victims. The reasonable person is the standard by which the responsibility of the tortfeasor and the victim are measured in order to meet that balance. The effect of striking the balance in that way is that some victims of negligence will be expected to do more than they can subjectively do to protect their safety. That proposition was accepted by a majority in the Supreme Court of Western Australia in Town of Port Hedland v Hodder (No 2),[18] a case in which a blind person dived into a shallow pool. Indeed the application of the objective standard to a plaintiff with defective sight was anticipated by McHugh J in the passages from his judgment in Joslyn v Berryman which I earlier cited. In the particular circumstances of that case, the plaintiff’s blindness was held not to be causative of the harm, however had it been causative, it would have resulted in a reduction in the tort feasor’s liability.[19] The facts of Town of Port Hedland v Hodder (No 2) illustrate, in an acute way, the unfairness of the objective standard applied by the law of tort when viewed from the perspective of the injured person in a particular case. However, as I have already emphasised that is a necessary consequence of the policy objective of the tortious standard. The converse consequence of the subjectivisation of the tortious standard helps to make the point. If a person, say a small child, is severely injured or killed by the objectively dangerous, but subjectively faultless, actions of the blind person in the pool, few would say that it was unfair to hold the blind person liable in negligence for the damage he or she has caused. The express purpose of s 47 CLA was to assimilate the standards applicable to the care expected to be shown for another on the one hand and the responsibility for one’s own care on the other.
[18] [2012] WASCA 212.
[19] Town of Port Headland (No 2) [2012] WASCA 212 at [292] per McLure P and [395] per Murphy JA.
Application to this Case
The Judge in this case approached the application of s 47 CLA by reference to the personal circumstances of Ms Chadwick. The Judge analysed her conduct on the night and evaluated the reasonableness of that conduct by reference to her personality and personal circumstances. That approach is apt to mislead.
An enquiry into whether Ms Chadwick could reasonably be expected to have avoided the risk which commences from the perspective of her personal “vulnerability” adopts a subjective standard.
A clearer picture emerges, and greater fidelity to the statutory text achieved, if one starts from the perspective of the reasonable person. A reasonable person in Ms Chadwick’s position, immediately before she got back in the car, would proceed as follows. First, she would understand that the risk in getting into the car driven by Mr Allen was great. The Judge found that Ms Chadwick ought to have been aware of the fact that Mr Allen’s alcohol caused impairment. The reasonable person would bring to mind that Mr Allen had consumed alcohol pretty well continuously throughout the day. She would also appreciate that Mr Allen’s very insistence on assuming the driving of the vehicle and insisting that she get in the vehicle exhibited a reckless attitude. Applying the normative standards by which this matter must be judged, the risk of riding in a car with a drunk driver late at night can only be assessed as very high. On appreciating that risk, the reasonable woman in Ms Chadwick’s position would consider the alternatives. She would take the time to survey her geographical location and would appreciate that she was about 200 metres away from the outskirts of the township and about 500 metres away from the Hotel. To put it in terms of time, she was about five minutes walk from the outskirts of the town and about ten minutes walk from the Hotel. She, and this is the reason for my use of the feminine pronoun, would assess that there was no significant danger to her personal safety in walking the short distance into a quiet country town even at that hour. Such risk as there might have been could be substantially discounted because there was no reason for Mr Chadwick to think that Mr Allen would be so callous as to abandon her completely even if he had initially driven off. Even though an inference could be drawn that Mr Allen was determined to drive the vehicle, it is quite another matter to infer that if Ms Chadwick had not got in the car, he would have left her alone or not checked on her progress as she walked into the township. Importantly, that was not Ms Chadwick’s view.
Ms Chadwick did not suffer from any other condition which could be attributed to the reasonable person which would in any way compromise her capacity to evaluate the circumstances in the way I have outlined. In particular, the Judge’s finding that Ms Chadwick was disorientated at the time when she decided to get back into the car and his decision to have regard to that finding on this question, is erroneous on three counts. First, factually, it is inherently improbable. It can be accepted that driving around the streets of even a small town might cause a momentary disorientation in the sense that it might not be immediately obvious in which direction the car has travelled. However, there is no reason why travelling around the streets of the town for some 15 minutes would have compromised Ms Chadwick’s capacity to survey the position from the location in which she found herself. Secondly, a reasonable person in Ms Chadwick’s position could readily have judged the direction of the lights and assessed the distance from the town as she stood on the side of the road.
Thirdly, the justification for Ms Chadwick’s conduct that she was disorientated proceeds on the unstated premise that it was reasonable for her to act instantaneously in getting into the car. There was no overriding urgency about the situation in which she found herself so as to cause her to act so impetuously or impulsively. The reasonable person takes a moment to think before leaping. Plainly enough, there are occasions of greater emergency when in the face of clear and present danger that instinctive reaction may be reasonable. That was not this case.
The evidence is that the position at which Ms Chadwick stopped the station wagon was the furtherest point from Port Victoria which it had travelled. On Ms Chadwick’s own evidence she had driven around the small township of Port Victoria for about 15 minutes before she pulled over. It is, therefore, more probable than not that she knew that she was not far out of the township. The long and short of it is that Port Victoria is a small township and the station wagon was brought to a stop close to the edge of town.
It can be accepted that the formulation of the standard of care required by s 47(2)(b) of the CLA is informed by the common law approach to contributory negligence when the tortfeasor’s negligence has placed a plaintiff in the position of selecting between alternative dangerous courses, or has subjected the plaintiff to an inconvenience or difficulty, avoidance of which, would expose the plaintiff to a risk of injury.[20] Both the common law and s 47 of the CLA require a balancing of risk against risk or inconvenience. That balance is of course critically dependent on a close analysis of the circumstances of each case. For that reason, little guidance can be found in the decisions made, one way or another, in other cases.
[20] Caterson v Commissioner of Railways (1973) 128 CLR 99, 111-112.
However, Ms Chadwick relied heavily on the decision of this Court in Ferrett v Worsley.[21]On the findings made by the Judge in that case, the risk to the passenger in remaining in the car, after it had stopped at a remote location on the Blanchetown to Morgan Road referred to in the judgment as D7, was not great. The Judge found that the passenger was unaware that the driver was intoxicated and there was no finding that the passenger ought to have been aware of the driver’s intoxication. Importantly, the only indication of danger of which the plaintiff was aware was that, shortly before stopping at the D7 location, the driver had driven the car in a way which had caused it to snake across the road. There was, as Debelle J pointed out on appeal, little reason to think that the driving of that kind would continue. Furthermore, there was no evidence that the defendant had been speeding before stopping at D7. Importantly, the choice of the plaintiff in Ferrett v Worsley to remain in the car was excused to a large extent because of the remoteness of the D7 location. Indeed, Debelle J made the point that had the driving occurred “in the metropolitan or near metropolitan area, it could perhaps be said that the appellant ought to have left the party and made some other travelling arrangements”.[22]
[21] (1993) 61 SASR 234.
[22] Ferrett v Worsley (1993) 61 SASR 234, 241.
I do not accept that in considering the common law doctrine Debelle J took into account the personal characteristics of the plaintiff passenger in Ferrett v Worsley other than that, at age 17, she was not yet an adult. The circumstance that she was a shy newcomer to the group who were travelling in convoy from Blanchetown to Morgan was relevant only to the question of whether the others might have paid her any heed if she had suggested that they wait by the side of the road until they had sobered up. Used for those purposes that circumstance was part of the objective matrix in which the plaintiff, as a child of 17, had to make her choice.
In this case, Ms Chadwick’s age, she was 21, and her pregnancy are relevant objective circumstances affecting the reasonable person’s assessment of the level of danger she may have faced had she decided to walk alone into the township. As I have earlier observed, the level of danger in taking a ten minute walk into Port Victoria was objectively very low. Ms Chadwick’s age and pregnancy provide no reason to excuse her lack of judgment in comparing the risks involved in the choices she faced. There was nothing about the objective circumstances in which she found herself which would compromise the reasoning capacity of a reasonable woman in her position. Ms Chadwick might not personally have had a clear idea of the source of the lights and their distance from her but a reasonable woman in her position would, taking a moment to survey the situation, have appreciated that she was close to the township. Nor did the age and domineering attitude of her partner, Mr Allen, excuse her poor judgment. Those personal circumstances are not shared by the reasonable person. Finally, I observe that, in my view, the risks of getting into the car driven by her drunk partner were not reduced very much at all by the absence of other vehicles on the road. To the contrary, it is precisely because she found herself within several hundred metres of a quiet country township that there was little, to no, risk in walking back to the Hotel.
Nor is Ms Chadwick entitled to much leeway for the choice she made by reason of the “agony of the moment”. There was no immediate danger and no reason why she could not have taken a moment to evaluate the situation. It can be accepted that Ms Chadwick felt helpless and panicked but that is not the reaction of a reasonable person. Ms Chadwick’s peculiar personal history and psychological profile plainly cannot be taken into account in assessing the response of a reasonable person.
In short, the reasonable person would not have impulsively jumped into a vehicle driven by someone whom she knew to have drunk excessively during the day and to have acted recklessly in taking control of the car. The reasonable person would have refused to get into the car and would have walked towards the Hotel. Ms Chadwick’s damages should be reduced by 50 per cent pursuant to s 47 CLA.
Damages
Pain and Suffering
The Judge assessed damages for pain and suffering at 52 on the scale of 0 to 60 established by s 52(2) of the CLA. For the reasons given by Gray and Nicholson J, I would hold that the Judge has not been shown to have acted on a wrong principle of law or to have failed to take into account a relevant consideration. It is also my view that the value assigned is not manifestly excessive. An exercise of discretion will only be set aside if it is affected by an error of the kind described in House v The King.[23] Leaving aside express errors of the kind therein referred to, a discretionary award of damages will not be set aside simply because the appeal court would have made a different award. Establishing an error by reason of manifest inadequacy or manifest excess therefore faces the difficulty of showing that the trial Judge’s exercise of the discretion fell outside the acceptable range. That inherent difficulty in challenging an exercise of the discretion aside there is no utility in superimposing over the House v The King principle any statement to the effect about the frequency with which an appeal court will interfere with an award of damages.
[23] (1936) 55 CLR 499.
Past Care
It is reasonably clear from reading the reasons delivered by the Judge on 28 August 2012[24] and the reasons delivered on 19 November 2012[25] that the Judge assessed past care on the basis of:
(a) 10 hours per week for domestic services;
(b)1 hour per day for personal care (after excluding 1 hour per day for childcare).
[24] Chadwick v Allen [2012] SADC 105 at [246].
[25] Chadwick v Allen (No 2) [2012] SADC 155 at [87]-[89].

The award so made was supported by the evidence even though the evidence showed that Ms Chadwick was much more capable of self care than she claimed. The bottom line is that the award fairly compensated her for paid assistance which she reasonably required to ease the additional burden she carried in attending to domestic and personal matters. I would not interfere with the award.
Past gratuitous services
I agree with the construction given to s 58(2) CLA by Gray and Nicholson JJ. I would also reduce the Judge’s amount on this head for the reasons their Honours give.
Future Care
For the reasons given by Gray and Nicholson JJ I would not interfere with the future care and assistance award.
Case Management
For the reasons given by Gray and Nicholson JJ I would set aside the award made for case management. I make the additional observation that the evidence did not show that Ms Chadwick’s exacerbated tendency to be disorganised was productive of any economic loss.
Future treatment
For the reasons given by Gray and Nicholson JJ I would not interfere with the award made for future medical treatment.
Accommodation
In my view, the approach of the Judge in awarding an amount for the purchase of a modified home and then deducting saved rental payments is not sound. Had Ms Chadwick not been injured, she would probably have continued to rent or may, later in life, been in a position to purchase specially provided affordable housing. The injuries she suffered will now require any such housing to be modified.
In the circumstances of Ms Chadwick, the soundest approach to an assessment of damages for her accommodation costs is to allow an award which would enable Ms Chadwick to make those modifications to any public or private rental accommodation she might have obtained or to any home she might have purchased. However, no deduction should be made for recovery of any of the costs of modifying the first home. In a rental situation, recovery is improbable in the extreme and indeed payment of make-good costs is likely. If the home first modified is one owned by Ms Chadwick, no recoupment of the amount expended is likely because, if anything, the improvements are likely to detract from the value of the home. Nor is this a case in which a relocation award might have been necessary. It was also appropriate to allow a further amount to fund improvements and renovations on another home should Ms Chadwick ever have reason to move. That amount is provided to meet the contingency of a future cost and the cost of the second set of modifications can therefore be substantially discounted for those reasons. Having regard to the range of costs for the modification of an existing home of between $89,000 and $115,582 suggested by the expert evidence, I too would award the sum of $150,000 under this head.
Holidays
For the reasons given by Gray and Nicholson JJ I would not interfere with the award made for holidays. I observe that the appellant did not contend that this head of damage was not recognised at law. There is a real question as to whether the difficulty in taking, or loss of, holidays is to be compensated under the award for pain and suffering or by separate award.
Transport
For the reasons given by Gray and Nicholson JJ I too would reduce the award on account of transportation costs to $80,000.
Life expectancy
The Judge assessed Ms Chadwick’s loss of life expectancy at 10 per cent. Ms Chadwick contends that reduction was excessive and that a percentage somewhere between 5 per cent and 10 per cent should have been selected. It may be that the Judge did not correctly record whether the life expectancy reduction of which the experts spoke was based on her paraplegia alone or included the possible effect of her smoking. However, looking at the matter in the broad, the Judge’s assessment was open on the evidence. There can be no exactitude in estimating life expectancy. The Judge’s assessment should stand.

GRAY and NICHOLSON JJ.
On 28 August 2012, following a trial, a Judge of the District Court concluded that the defendant, Alex Allen, was negligent in the driving of a motor vehicle, causing severe personal injury to the plaintiff, Danielle Chadwick.[26] On 19 November 2012, the Judge assessed Ms Chadwick’s damages at $2,392,486.65.[27] The Judge made a reduction of 25 per cent for contributory negligence on account of Ms Chadwick’s failure to wear a seatbelt. On 22 May 2013, the Judge ordered that Ms Chadwick recover 85 per cent of her costs of the action on a solicitor-client basis.[28]
[26] Chadwick v Allen [2012] SADC 105.
[27] Chadwick v Allen (No 2) [2012] SADC 155.
[28] Chadwick v Allen (No 3) [2013] SADC 66.
On appeal, Mr Allen complained that the Judge should have found Ms Chadwick guilty of a further act of contributory negligence in that she relied on the care and skill of Mr Allen whom she was, or ought to have been, aware was intoxicated at the time of the accident. It was contended that, in these circumstances, the Judge should have further reduced Ms Chadwick’s award of damages by 50 per cent in accordance with the terms of section 47 of the Civil Liability Act 1936 (SA). Mr Allen further complained that the Judge erred in his assessment of Ms Chadwick’s damages and alleged that the award was manifestly excessive and against the weight of the evidence. Finally, Mr Allen complained that the Judge’s exercise of discretion concerning costs miscarried.
Ms Chadwick, by cross-appeal, challenged the Judge’s reduction of 25 per cent on account of her failure to wear a seatbelt. Ms Chadwick also complained about the assessment of damages, asserting that the award was manifestly inadequate.
Background Facts
At or around 2.00 am on 12 March 2007, Ms Chadwick suffered serious injuries in a motor vehicle accident which occurred near the township of Port Victoria on Yorke Peninsula. At that time, Mr Allen, Ms Chadwick’s then domestic partner, lost control of the vehicle in which Ms Chadwick was a rear-seat passenger. The vehicle left the road and collided with trees. Ms Chadwick’s seatbelt was not fastened to a buckle. She was thrown from the vehicle by the force of the impact and sustained spinal injuries. It was not in dispute that at the time of the accident, Mr Allen had a blood alcohol content of about 0.229 grams of alcohol per 100 millilitres of blood and that, as a consequence, his faculties and ability to drive the motor vehicle were impaired.
On Saturday 10 March 2007, Ms Chadwick and Mr Allen, together with Ms Chadwick’s five year old daughter, left their home in the Adelaide Hills to spend the weekend on the Yorke Peninsula. At the time, Ms Chadwick was pregnant. They slept overnight in their motor vehicle in a parking bay on the outskirts of Port Pirie. On the following morning, Sunday 11 March 2007, they met a friend of Mr Allen, Kim Martlew, who had been staying at a town close to Port Pirie. At the time, Ms Chadwick was aged 21 years, Mr Allen 28 years and Mr Martlew also about 28 years.
Mr Martlew and his two children, aged three and six years, joined Ms Chadwick, Mr Allen and their daughter to travel to the Yorke Peninsula. Ms Chadwick and Mr Allen’s vehicle was left at Napperby and the group proceeded in Mr Martlew’s Holden station wagon. The group travelled through Port Broughton to Kadina and on to Wallaroo. Following lunch, Ms Chadwick drove the vehicle to Port Victoria, where two rooms were booked in a hotel attached to the Port Victoria Hotel.
On arrival at Port Victoria, Ms Chadwick assumed responsibility for the three children and readied them for bed. After the children had fallen asleep, Ms Chadwick joined Mr Allen and Mr Martlew in the front bar of the hotel. At some time between 1.30 am and 2.00 am, a decision was made to go for a drive to look for cigarettes.
Ms Chadwick drove the vehicle, generally following the haphazard directions given to her by Mr Allen and Mr Martlew. In the course of the drive, they left Port Victoria and travelled to the outskirts of the town. She stopped the vehicle in an area of darkness. She alighted to relieve herself behind some bushes on the side of the road. When she returned to the vehicle, Mr Allen was in the driver’s seat. Ms Chadwick remonstrated with Mr Allen and sought to continue driving the vehicle. He refused. At this time, Ms Chadwick was not sure where she was. She said that she thought that she was in the middle of nowhere and did not know how far she was from Port Victoria, and that it was dark. The only light that she could see was far in the distance and she did not know what it was. She was concerned about the children. At this point, Mr Allen told Ms Chadwick to “get in the fucking car”. She did as she was told. As she entered the rear passenger seat, the motor vehicle moved off before the rear side door had closed. Ms Chadwick made a number of unsuccessful attempts to fasten her seatbelt.
Findings of the District Court Judge
After reviewing the relevant evidence, the Judge concluded that, shortly after Ms Chadwick entered the rear passenger seat of the vehicle, Mr Allen lost control of the vehicle which collided on its right hand side with a tree or trees in the vicinity of the right hand dirt verge of the road. As a result, Ms Chadwick was thrown from the vehicle and sustained acute spinal cord injuries. The Judge had regard to the level of intoxication of Mr Allen and the evidence of the relevant expert witnesses in concluding that these events were caused by the gross negligence of Mr Allen.
The primary liability issues at trial were whether: when Ms Chadwick entered the vehicle, she did so in circumstances that attracted the mandatory statutory reduction on account of contributory negligence of 50 per cent under section 47(5) of the Civil Liability Act, due to the driver being intoxicated with a blood alcohol concentration exceeding 0.15 grams in 100 millilitres of blood; and secondly, whether Ms Chadwick’s failure to wear a seatbelt at the time of the accident constituted a breach of the Road Traffic Act 1961 (SA) so as to attract the mandated statutory reduction of 25 per cent.
In relation to the first issue, the Judge concluded that, viewed objectively, Ms Chadwick had little choice but to enter the vehicle in the particular circumstances, and that, on balance, no person in the precarious situation in which Ms Chadwick found herself could reasonably be expected to have any practical alternative in the matter other than to get into the back seat of the vehicle. As a consequence, there was no practical alternative to avoid the risk in doing so. This finding was challenged by Mr Allen on appeal.
In relation to the second issue, the Judge concluded that, on balance, it could not be said that Ms Chadwick was prevented from fastening her seatbelt in the critical moments leading to the impact. The Judge considered that, on the probabilities, Ms Chadwick had sufficient opportunity to fasten her seatbelt but did not do so. As a consequence, the mandated statutory reduction of 25 per cent applied. This is the finding that Ms Chadwick challenged on the cross-appeal.
As mentioned earlier, both Mr Allen and Ms Chadwick complained about the assessment of damages. It is convenient to discuss this topic later in these reasons. It is also convenient to address the complaint concerning the costs order when the other issues on appeal have been determined and after hearing further from the parties.
Intoxication
Section 47 of the Civil Liability Act provides:
(1)     If—
(a)     the injured person—
(i)    was of or above the age of 16 years at the time of the accident; and
(ii)relied on the care and skill of a person who was intoxicated at the time of the accident; and
(iii)was aware, or ought to have been aware, that the other person was intoxicated; and
(b)     the accident was caused through the negligence of the other person; and
(c)     the defendant alleges contributory negligence on the part of the injured person,
contributory negligence will, subject to this section, be presumed.
(2)     Subject to the following exception, the presumption is irrebutable.
Exception—
The injured person may rebut the presumption by establishing, on the balance of probabilities, that—
(a)    the intoxication did not contribute to the accident; or
(b)the injured person could not reasonably be expected to have avoided the risk.
(3)In a case in which contributory negligence is to be presumed under this section, the court must apply a fixed statutory reduction of 25 per cent in the assessment of damages.
(4)A passenger in a motor vehicle is taken, for the purposes of this section, to rely on the care and skill of the driver.
(5)If, in the case of a motor accident, the evidence establishes—
(a)     that the concentration of alcohol in the driver's blood was .15 grams or more in 100 millilitres of blood; or
(b)     that the driver was so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle,
the fixed statutory reduction prescribed by subsection (3) is increased to 50 per cent.
(6)This section operates to the exclusion of the defence of volenti non fit injuria insofar as it relates to the voluntary assumption of a risk arising from the intoxication of another.
Section 48 of the Civil Liability Act provides:
(1)A finding by a court that there was present in the blood of a person, at or about the time of an accident, a concentration of alcohol of .08 or more grams in 100 millilitres of blood is to be accepted, for the purposes of this Part, as conclusive evidence of the facts so found and that the person was intoxicated at the time of the accident.
(2)A finding by a court that a person was at or about the time of an accident so much under the influence of alcohol or a drug as to be unable to exercise effective control of a motor vehicle is to be accepted, for the purposes of this Part, as conclusive evidence that the person was, at the time of the accident, so much under the influence of alcohol or a drug as to be unable to exercise effective control of the motor vehicle.
The Judge addressed each of the matters referred to in section 47(1) and concluded that Ms Chadwick was above the age of 16 years at the time of the accident, that she relied on the care and skill of Mr Allen, that Mr Allen was intoxicated at the time of the accident, that Ms Chadwick ought to have been aware that Mr Allen was intoxicated, that the accident was caused through the negligence of Mr Allen, and that Mr Allen alleged contributory negligence on the part of Ms Chadwick. The Judge noted that, in these circumstances, contributory negligence on the part of Ms Chadwick was to be presumed and that this presumption was irrebuttable subject to the section and, in particular, to the exception set out in section 47(2)(b). The Judge further noted that, subject to the statutory exception, as Mr Allen’s blood alcohol content exceeded 0.15 grams in 100 millilitres of blood, the increased fixed statutory reduction of 50 per cent applied. The Judge then turned to address the exception.
It is to be noted that the Judge concluded that Mr Allen had failed to establish that Ms Chadwick was aware that he was intoxicated when she got into the vehicle as a passenger. However, as noted above, the Judge concluded that she ought to have been so aware.
The District Court Judge traced the history of section 47(2)(b) and discussed authorities addressing broadly comparable interstate legislation. The Judge noted that there were material differences between section 47 and its progenitor provisions as well as between it and the interstate provisions. The Judge further noted that the provisions of the Civil Liability Act immediately preceding section 47 were replete with references to the reasonable person, whereas section 47 made no reference at all to the reasonable person, but instead referred to “the injured person”.
The Judge took the view that it was clear from the introductory words to section 47(2) that Ms Chadwick bore the onus of proving on balance that she could not reasonably have avoided the risk.[29] The Judge further considered that the inquiry was objective in that the legislation used the phrase “could not reasonably be expected”. In particular, the Judge reasoned:[30]
The other point to note is that whereas the immediately preceding sections of the Civil Liability Act are replete with references to the ‘reasonable person’, that phraseology does not carry through into s 47.[31] It is clear enough from the introductory words in s 47(2) that the plaintiff bears an onus of proving on balance that she could not reasonably have avoided the risk. It is equally clear that the inquiry is an objective one. This much is conveyed by the words ‘reasonably’ and ‘expected’. Those words suggest circumstances beyond the reasonable control of the plaintiff, or those that are not reasonably avoidable. The verb ‘could’ connotes notions of ‘possibility’, ‘capacity’ or ‘ability’.[32] When coupled with ‘not … expected’, the entire phrase suggests, to express matters in the negative, impossibility, incapacity or inability. The addition of the adverb ‘reasonably’, fixes the objective standard.
Given the operation of s 47(2) of the Civil Liability Act pre-supposes a finding that the injured person was either aware or ought to have been aware the driver was intoxicated, the capacity to avoid the risk entailed must necessarily relate to the risks associated with taking that ride. As the operative words are ‘the avoidance of risk’, the inquiry must surely refer to the very point in time the relevant risk is assumed.
Taken as a whole I am inclined to the view that the exception ‘the injured person could not reasonably be expected to have avoided the risk’ conferred by s 47(2)(b) of the Civil Liability Act, refers to an impossible situation or predicament in which no reasonable person placed in the precise position of the injured person, can avoid, or has no choice but to accept. It is impossible to be exhaustive or prescriptive as to those situations which might qualify, but it is clear enough that something of a compelling nature is required in the sense that the injured person could not reasonably have avoided the risk by doing something else. Situations of compulsion or necessity are obvious examples. Otherwise so much will depend on the exacting nature of the particular case.
Translated to the facts of this case, the focus is not on [Ms Chadwick’s] reasons for entering the vehicle, but whether she could reasonably be expected to avoid doing so in the prevailing circumstances. Apart from the objective circumstances [Ms Chadwick] relies on a pre-disposition to compromised decision making arising from a diagnosis of borderline personality disorder, her particular susceptibility to [Mr Allen], his control over her especially when drunk and angry, her susceptibility to abandonment, which combined with the other surrounding circumstances are said to lead to the conclusion that she effectively had no choice other than to re-enter the vehicle. Given the observations of McHugh J in Joslyn v Berryman quoted earlier, it is doubtful that such personal characteristics or idiosyncrasies are relevant to the present question, but I proceed to examine the issue notwithstanding.
[29] While this is the language used by the Judge, it should be noted that this is not the language of the statutory test, which is “… could not reasonably be expected to have avoided the risk.”
[30] Chadwick v Allen [2012] SADC 105, [92]-[95].
[31] S 31(1) & (2), s 32(1)(c) & 32(2), s 36(1), s 37(3).
[32] Fowler’s Modern English Usage, (3^rd Ed), 1998 Oxford University Press, p 186.
Having made these observations, the Judge then reviewed Ms Chadwick’s disrupted and dysfunctional childhood and adolescence, the fact that she was the victim of an abusive, unsupportive and fear-ridden home, and that as a consequence she had developed a deep seated sense of distrust and helplessness. The Judge next discussed the domestic relationship of Ms Chadwick and Mr Allen, concluding:[33]
On the other hand, it can be safely accepted that the relationship between [Ms Chadwick] and [Mr Allen] was defined by numerous arguments, some of them volatile, but that is about as far as this body of evidence takes matters. [Mr Allen] did admit there were a lot of arguments behind closed doors. It is not difficult to infer that she was emotionally and financially dependent upon him, given their age difference, the young child she was responsible for and that he was almost exclusively the bread winner. In the context of this background material the evidence of the two psychiatrists falls for consideration.
[Footnote omitted.]
[33] Chadwick v Allen [2012] SADC 105, [113].

Mr Allen submitted that the Judge’s use of the phrase “to assist her [to] put her affairs in order” indicated that he had in mind the management of money. It was submitted that this was impermissible having regard to section 57 of the Civil Liability Act, which precludes an award of damages for the cost of the investment or management of the amount awarded. The award made by the Judge is to meet the cost of Ms Chadwick being assisted to attend to her treatment and care needs, including her ability to access community support as well as address such major projects as the acquisition and modification of a house property. The need, as identified by Ms Allach, appears to be for some form of short term organisational and secretarial assistance. Accordingly, it can be seen that the award has not been directed to the investment or management of the monies awarded in a conventional way.[96] Nevertheless, in our view, this is a form of loss that falls under Ms Chadwick’s statutory entitlement for damages for non-economic loss such that the Judge was in error in making a separate allowance in this respect.
[96] Although, the use by the Judge of the expression “for the management of [Ms Chadwick’s] award funds” taken out of context might suggest otherwise.
Future Treatment
As earlier mentioned, the Judge made specific findings as to the future treatment needs of Ms Chadwick. The Judge noted the difficulty of making any accurate prediction in this respect, but ultimately made an assessment as follows: future medical treatment, $180,386.34; future medication, $36,618.30; and future equipment and consumables, $91,285.00. On the appeal, Mr Allen complained that these amounts were excessive, arguing that there was a general lack of evidence to support Ms Chadwick’s claims. It was said that the Judge apparently relied on the evidence, both oral and documentary, of the experts Ms Alach and Ross Tippett, and that the Judge should have preferred contrary evidence from a medical advisor saying that Ms Chadwick needed less treatment than was being suggested.
Looking to the future necessarily involves uncertainties. There are both positive and negative contingencies. There is an inherent difficulty in attempting to establish with any degree of accuracy the full cost of such future losses. This is particularly so in this case where Ms Chadwick is very young, with a further life expectancy of more than 50 years. Inevitably, in a case such as this, a court is left to do the best it can with the evidence advanced, bearing in mind at all times that the onus lies upon the party claiming the loss.
Having reviewed the parties’ respective positions, the evidence at the trial and the Judge’s reasons, we are not persuaded that the Judge has erred in his assessment of damages in respect of these areas of loss. We recognise that there is some force in Mr Allen’s complaints, but this Court must also recognise the wide discretion available to the Judge when assessing these categories of loss.
Accommodation
The Judge considered Ms Chadwick’s claim for future housing and accommodation, and made an allowance of $199,162.00. The Judge discussed this aspect of the claim in some detail before concluding:[97]
[97]Chadwick v Allen [2012] SADC 105, [327].
How these conclusions translate the [sic] money terms is not an altogether straight forward exercise. For the time being it may be indicated that an award is appropriate to cover the costs of the purchase of an AV Jennings Pinnacle 190, 3 bedroom home at $175,000 and for the necessary varied modifications recommended by Dr Marshall at $115,582. Whether [Ms Chadwick] seeks an award for the projected cost of purchasing an appropriate block of land and associated transfer costs is unclear. The parties should have liberty to speak to the appropriate orders in light of those findings.
The Judge discussed the relevant authorities and, in that respect, observed:[98]
[98] Chadwick v Allen [2012] SADC 105, [296]-[300]
The principles of law which apply here are not in doubt. It is necessary to pay close attention to the particular facts when assessing what the appropriate reasonable needs of the plaintiff are in the circumstances: Weideck v Williams. Most of the reported cases on this subject concern conversions or modifications to existing houses, so that damages were assessed according to the additional costs incurred, an exercise that does not usually incorporate the capital value of the house itself, because that cost would have been incurred anyway irrespective of injury: Weideck v Williams, Nicholson v Nicholson.
The question must also be asked whether some adjustment is to be made for increased capital value in order to avoid any question of a windfall in the plaintiff’s hands. The consensus in the authorities is that no deduction ought to be made on that account, essentially because capital gains only crystallise upon death and the value of the alterations would deteriorate over time in any event: Marsland v Andjelic and Nicholson v Nicholson. Furthermore, some modifications such as widening doorways, installing ramps and so on are of such a nature that they are unlikely to add value at all: Rosecrance v Rosecrance.
In other cases damages were measured by the present value of the stream of interest foregone on the cost of improvement or purchases: Wells v Wells, Rosecrance v Rosecrance and Weideck v Williams, whereas in yet others courts refused to make allowances for increases in value simply because the defendant has failed to discharge an evidential onus of demonstrating such increases apply: Campbell v Nangle, Weideck v Williams, Carlon v Alison, Marsland v Andjelic.
The closest decision in point of fact supporting the plaintiff is Grimsey v Southern Regional Health Board, a case in which the full cost of a new home was allowed on this basis:
In the present case the evidence supports the view that existing homes, suitable for modification to accommodate the plaintiff's needs if living in a domestic environment, are few and far between, and the cost of alterations and additions necessary to cater for her inexpressibly-grave disabilities will be high. It seems to me that a fairer and more appropriate method of approaching compensation is to allow the cost of a purpose designed new home and then to consider the likely expenditure which the plaintiff would have incurred, had she grown to be a normal adult earning an average income, in providing accommodation for herself and also, possibly, her family and then deducting that cost, discounted for present value from the sum allowed for lost earning capacity.
A similar approach was taken in Crochett v Roberts, where the cost of a purpose built house was allowed essentially because the locale in question had better recreational facilities apt to the plaintiff’s needs and kept the plaintiff near her friends and in a neighbourhood familiar to her. The evidence in both the Tasmanian cases was to rather different effect than it was here.
[Footnotes omitted.]
Ultimately the Judge allowed the purchase cost of a home at $175,000.00, alterations at $115,582.00, the cost of a block of land at $150,000.00 and conveyancing costs of $4,830.00. The Judge then made a reduction on account of rental costs that Ms Chadwick would have incurred at $250.00 per week. This led to an award under this head of damage of $199,162.00. The Judge’s rationale in rejecting an assessment based on a purpose built home and adopting the modified AV Jennings home alternative was as follows:[99]
It must follow from the entirety of the evidence that the need for a purpose built house of the level proposal [sic] by [Ms Chadwick] is not made good. Moreover, on the basis of the above findings, the modified Penglase proposal fits squarely within the description of the sort of suitable adapted home [Ms Chadwick] would live in if she were not disabled. …
… The conclusion is that [Ms Chadwick] has failed to demonstrate on balance that a purpose built home is reasonable and necessary for her needs and correspondingly, [Mr Allen] has demonstrated on balance that it is not.
It is not appropriate to discount any award on this aspect of the damages claim for the reasons mentioned already, even though there is no direct evidence that [Ms Chadwick] actually intends to purchase and modify such a project home. Irrespective of other contingencies such as remaining at Fresian Drive, or moving into alternative rental accommodation, the probabilities are that she would take this option because of the significant deficiencies in the Fresian Drive premises and the additional strain thereon occasioned by the birth of Isabella. Still further, a plaintiff is entitled to spend her damages award as he or she chooses: Van Gervan v Fenton.
[Footnote omitted.]
[99] Chadwick v Allen [2012] SADC 105, [324]-[326].
On the appeal, Mr Allen challenged this allowance. It was said that the Judge had erred in awarding damages for the cost of the purchase of a new home and land package. It was further asserted that an allowance towards modifications was unnecessary, or in any event should not have exceeded $89,000.00. Ms Chadwick also complained about the award for accommodation. In her submission, the Judge failed to have proper regard to the evidence of Anthony Donato, an architect. With the assistance of Mr Donato’s evidence, a claim was advanced for the cost of a purpose built home. After allowance was made for what Ms Chadwick submitted was an appropriate notional rent of $200.00 per week, it was said that the appropriate assessment of loss was $575,000.00, less a modest amount for the perceived excesses of Mr Donato’s estimate.
At the time of trial, Ms Chadwick was living in housing accommodation provided by the State. The Judge concluded that this accommodation was far from ideal and in that respect observed:[100]
[100] Chadwick v Allen [2012] SADC 105, [292]-[293].
There is no doubt the Fresian Drive house where [Ms Chadwick] has lived since November 2008 is unsuitable and inadequate in a number of significant respects. Even so [Ms Chadwick] expressed an interest in purchasing the property in May 2009, an idea then supported by Dr Marshall. There are a number of fundamental flaws in the property from the point of view of a wheelchair occupant. In particular:
·the toilet is far too small, requiring the difficult and demanding 180° pivot transfer;
·the bathroom is too small and does not allow [Ms Chadwick] to wheel alongside the shower bench, there is insufficient storage and there is, I accept, a difficulty but not an impossibility of reaching the taps to the bath (although on the carer evidence [Ms Chadwick] is able to do that) with some difficulty as I find to be the case, and there are occasional floods in the hallway;
·there are no wheelchair friendly modifications of any substance to the kitchen or the laundry;
·the remaining rooms are generally speaking too small to permit easy wheelchair mobility around the house.
When it comes to the outside area at Fresian Drive, there is no undercover parking, which is necessary for a person in a wheelchair, as it takes time to enter and leave motor vehicles. The grounds are too large and too prone to overgrowing, well beyond the capacity of [Ms Chadwick] to maintain. In some places the ground surface is quite rough, including an area adjacent to the car park. On occasion the dip in the ‘cross-over’ at the bottom of the driveway causes difficulties, although there is evidence and film of Ms Chadwick’s capacity to manage that reasonably well, no doubt acquired with practice.
[Footnotes omitted.]
The Judge noted the potential for alternative arrangements to be made through Housing SA which could result in improved facilities. However, in that respect the Judge concluded:[101]
Accordingly, although the failure to pursue options that at face value appear to be realistically available through Housing SA, that consideration should not operate so as sound in a reduction of the level of damages otherwise appropriate, even though it forms one part of the matrix of facts relevant to the question of the need of a purpose built home in the first place. Nor should it be seen as a failure to mitigate loss, for [Mr Allen] has failed to prove that [Ms Chadwick’s] failure on this account was unreasonable: Watts v Rake and it has further failed to demonstrate that Ms Chadwick actually knew this Housing SA option was available to her: See Eley v Bedford.
The availability of alternative public housing to this particular plaintiff is shown to be an uncertain option, at least according to the opinion of various witnesses in the case. As Tomlinson J observed in Freeman v Lockett, a plaintiff should not be relegated ‘to a state of uncertainty … whether there will be available funds assessed as necessary to meet her needs’, and that it is necessary to provide ‘an element of unfettered flexibility as to where she lives’. To express matters in another way, [Ms Chadwick] should not be required to rely on the whims of policy in that respect: Godbold v Mahood.
[Footnotes omitted.]
[101] Chadwick v Allen [2012] SADC 105, [316]-[317]
It was clear that Ms Chadwick’s injuries gave rise to a need for special accommodation. The question that arose was the assessment of the cost of meeting that need. The Judge’s conclusion that a purpose-built home was not justified was a conclusion open on the evidence. In the circumstance where Ms Chadwick was not the owner of a home which could be modified, we consider that it was not unreasonable for the Judge to approach the assessment in the way that he did, namely to take the cost of a modest project home, add the cost of reasonably necessary modifications and then deduct the rental costs that Ms Chadwick would otherwise incur during the balance of her life.
This approach makes sense in the case where a person in Ms Chadwick’s position is also to be in receipt of an award for future loss of earning capacity. Such a plaintiff still would have the, otherwise lost, capacity to meet their expected rent commitment. However, in this case, Ms Chadwick has made no claim and will receive no award for future loss of earning capacity. Nevertheless, it still makes sense, in principle, to deduct from any future housing award an allowance for the rent Ms Chadwick would have paid in the future in any event. To ignore this would be, in effect, to allow a component of lost future earning capacity as to which there is no claim and no evidence.
In the course of his reasons, the Judge noted that Mr Donato had accepted that the estimated modification cost of $89,000.00 suggested by the defence expert, Stephen Penglase, was reasonable. However, the Judge then proceeded to make an allowance for modification costs of $115,582.00. It appears that the Judge accepted the higher modification costs advanced by Mr Donato. However, there is no explanation in the reasons of the Judge for not adopting, as reasonable, modification costs of $89,000.00 put forward by Mr Penglase and agreed to by Mr Donato.
The Judge found that Ms Chadwick had always lived in rental accommodation and that she had been relatively unsettled, remaining for the longest in any one place for perhaps a couple of years. As a result of the accident, this lifestyle became impractical and likely no longer to be open to her. In all the circumstances, we consider that it was reasonable to proceed on the basis that Ms Chadwick should be able to purchase her own home, built in a manner appropriate to accommodate her restricted mobility. It is unreasonable to suggest that she should live in rented accommodation throughout her life. The terms of any lease and the nature of any modification would be under the control of a landlord.
Nevertheless, there are a number of uncertainties, including the absence of evidence on a number of topics. The cost of land is dictated by location. The rental costs that Ms Chadwick would otherwise incur were not the subject of adequate evidence. The Judge’s treatment of modification costs suggests a measure of inconsistency. We would make a broad allowance under this head of damage of $150,000.00, having regard to the relevant circumstances, contingencies and uncertainties and on the basis that Ms Chadwick would need to satisfy, from her own resources, a lifelong rent commitment at least in any event.
Holidays
The Judge addressed the topic of holidays and in that respect concluded:[102]
It can be appreciated there would be additional stresses and difficulties travelling with two children for a wheelchair bound parent, even if accompanied by a partner or carer such as Mr Jones. One can foresee this could easily involve the hire of a larger vehicle for transport to and from airports at the very least. Otherwise, the cases show that an additional allowance is made usually only when carer assistance is demonstrably required, which it is not this case. Taking all these considerations into account and without pretending to be precise or even particularly scientific about it, a modest sum of say $300.00 per annum over 50 years is allowed. Given the modesty of the proposed award over a reduced life span of 54 years, it is not proposed to reduce the consequent lump sum of $18,000.00 on account of present day value simply because it is a modest sum and because the bulk of this is more likely to be expended whilst the children remain relatively young.
[102] Chadwick v Allen [2012] SADC 105, [336].
On appeal, Ms Chadwick contended that the amount awarded by the Judge under this head of damage was inadequate and represented an allowance of less than two days of extra holiday care per year.
This head of damage does not fall within Ms Chadwick’s non-economic loss claim. Her disabilities and her consequent needs will give rise to the need for extra expenditure to enable her to take and enjoy holidays. There is widespread recognition of the need to address the problems of the disabled. There will undoubtedly be extra expense in the taking of holidays. This is difficult to quantify but, in our view, the broad allowance made by the Judge cannot be said to be inappropriate.
Transport
The Judge next considered the topics of transport, car maintenance and RAA membership. The Judge, noted the evidence in regard to these topics, and observed:[103]
It may be acknowledged that the guidelines for levels of attendant care for paraplegic patients with complete T1 – T4 do not indicate the need of a vehicle. However, given the fact that [Ms Chadwick] had the successful use of a hand-controlled vehicle in the past when one was roadworthy and she retained a licence to drive, and given the fact that she lives in a small country town without access to public transport having quite limited taxi services, the provision for a car in her case turns out to be both reasonable and necessary to her specific identifiable needs.
[Footnote omitted.]
[103] Chadwick v Allen [2012] SADC 105, [342].
The Judge made additional allowances for transport at $150,000.00, car maintenance at $22,133.00 and RAA membership at $2,352.13.
In the course of his reasons, the Judge further addressed the question of transport costs at length before concluding:[104]
[104] Chadwick v Allen (No 2) [SADC] 155, [68]-[71].
It is convenient then to recapitulate the critical findings in respect of this issue. These were:
·    The recommendations for a large vehicle later in life were soundly based on the likely advent of shoulder and wrist problems;
·    As time goes on [Ms Chadwick] will become more and more dependant on a motorised wheelchair, so her transport needs are likely to become correspondingly greater;
·    The provision for a car is both reasonable and necessary to her specific identifiable needs.
These findings necessarily convey the view that the provision of adequate transport was a demonstrable need as a result of [Ms Chadwick’s] disabling injuries and her abject need to remain mobile for treatment purposes. They also convey a conclusion that at some time after the age of 40 a van – as opposed to a conventional modified vehicle – is likely to become a necessity. [Ms Chadwick] has calculated the adjusted value of two cars and three vans at $157,292.00. Since a replacement car just once every 10 years is completely modest, and since the probabilities are that a van will be required perhaps earlier than aged 47, [Ms Chadwick’s] proposal remains a most reasonable one. On that basis of looking at matters the sum of $150,000 is allowed. Otherwise, [Ms Chadwick] is bound by the conduct of her case on this aspect of the damages award: Port of Melbourne Authority v Anshun Pty Ltd.
[Mr Allen’s] proposition that the appropriate figure is $73,542 is rejected because it allows only for conventional vehicles. In twenty years [Ms Chadwick] will be 46 years of age and given her life expectancy, such vehicles could not be expected to satisfy her entire needs for upwards of thirty to forty years thereafter.
An issue as to pre-judgment payments with respect to vehicles will be considered later. It is also more than reasonable to allow [Ms Chadwick] the cost of RAA membership at an accepted present day cost of $2,352.13, and car maintenance, which has already been agreed by the parties on an actuarial calculation of $22,133.00.
[Footnotes omitted.]

In the course of his reasons, the Judge discussed the need to consider making a reduction for the costs that Ms Chadwick would have incurred in any event in owning and running a motor vehicle for her own use.
In Crockett v Roberts (No 3), Underwood J observed:[105]
I infer that the RACV figures proceed upon the assumption that the vehicles are new. It is unlikely that, but for the defendants' negligence, the plaintiff would have had a new second car in the family and consequently, the depreciation rate would be considerably lower than that shown in the RACV figures. In addition, I am of the opinion that Mr Stephens' calculation of the distance that the plaintiff's motor vehicle will have to travel to satisfy the relevant needs, is an under-estimate. In addition to the distance propounded by Ms Harrington, the usage is likely to be higher than the estimate because of the likelihood (in view of the finding later made with respect to the provision of housing) of the plaintiff having to frequently travel to another neighbourhood to access services. Adhering to the RACV figures the end result is that the extra cost to the plaintiff of having to provide her own, larger car is likely to be in the vicinity of $28,000. Taking into account all these matters, and exercising judgment, I reduce the claim for the cost of providing a motor vehicle for the plaintiff, as calculated by Mr Stephens, by $126,153 to allow for the cost that the plaintiff would have incurred in any event by owning and running a small car for her own use. Accordingly, I assess damages for the future costs of specific aids and home appliances without deduction, in the sum of $82,411. The only deduction that should now be made is for the contingency of early death. Rounded off that produces a figure of $70,000.
[105] Crockett v Roberts (No 3) (2002) 11 Tas R 393, 414.
It is apparent that the Judge made no reduction to have regard to the fact that Ms Chadwick would, in any event, in all probability, have incurred the expense of owning and running a motor vehicle. It is to be accepted that it is unlikely that she would have required the major expense of a van suitable for accommodating a wheelchair. However, on the other hand, a substantial reduction is required to reflect this factor. It is to be noted that Ms Chadwick sought an award of between $75,000.00 and $150,000.00 on this account. When an allowance is made for the expenses Ms Chadwick would have faced in any event, a substantial reduction should be made to the award on this topic. It is relevant also to have regard to the fact that Ms Chadwick would, in the ordinary course, have had to service and maintain a vehicle and could reasonably be expected to at some time have taken RAA membership. In our view, the Judge erred in his overall assessment for transport costs. It is not possible to make other than a broad axe allowance and, in that respect, we would allow $80,000.00 on account of overall transport costs, taking into account maintenance and RAA membership.
Life Expectancy
The evidence established that Ms Chadwick had suffered a modest reduction in life expectancy which the Judge assessed at 10 per cent. On the appeal, Ms Chadwick submitted that any re-assessment of damages relating to future matters, should it be undertaken, should be based on a reduction in life expectancy of something less than 10 per cent and somewhere in the range of 5 to 10 per cent. An assessment of 10 per cent was open on the evidence and we would not interfere with this aspect of the Judge’s assessment.
Conclusion
For the reasons set out above, we would set aside the judgment of the District Court Judge. Ms Chadwick is entitled to recover damages without any reduction for contributory negligence. However, her damages should be reduced as follows:
Gratuitous Services
-$ 26,722.50  reduced to      $     4,763.20
-Interest thereon $2,939.00         reduced to      $        525.00
Case Management
-$ 13,546.50  reduced to   nil
Accommodation
-$199,162.00  reduced to      $ 150,000.00
Transport
-$174,485.13  reduced to      $    80,000.00
Further adjustments to interest allowances may be required.
We would hear the parties further as to the appropriate orders to be made having regard to all consequential matters. We would also hear the parties as to the costs of the trial and the appeal.