Allen v Chadwick

Case [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…

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Allen v Chadwick [2014] SASCFC 100
Case
[2014] SASCFC 100
Decision Date

CaseChat Overview and Summary

The case of *Allen v Chadwick* involved an appeal and cross-appeal to the Full Court of the Supreme Court of South Australia concerning a motor vehicle accident. The plaintiff, Ms Chadwick, sustained severe spinal injuries resulting in paraplegia when the vehicle driven by the defendant, Mr Allen, lost control. At the time of the accident, Mr Allen had a significant blood alcohol content, and Ms Chadwick, a rear-seat passenger, was not wearing a seatbelt. The primary dispute revolved around the apportionment of damages, specifically whether reductions for the plaintiff's failure to wear a seatbelt and the defendant's intoxication were appropriate, and the quantum of damages awarded.

The legal issues before the court were whether the District Court Judge erred in declining to reduce the plaintiff's damages by 50 per cent due to the defendant's intoxication, as provided by section 47 of the *Civil Liability Act 1936* (SA). This required determining if the exception in section 47(2)(b) of the Act, which allows for no reduction if the plaintiff had no practical choice but to enter the vehicle, was correctly applied. Additionally, the court had to consider whether the Judge erred in reducing the plaintiff's damages by 25 per cent for her failure to wear a seatbelt, pursuant to section 49 of the *Civil Liability Act*, and whether the overall assessment of damages was manifestly inadequate.

The Full Court allowed the appeal in part and dismissed the cross-appeal. It found that the District Court Judge had correctly applied section 47(2)(b) of the *Civil Liability Act*, concluding that Ms Chadwick had no practical choice but to enter the vehicle driven by the intoxicated Mr Allen, thus precluding a reduction for his intoxication. However, the court disagreed with the Judge's reduction for the failure to wear a seatbelt, finding that the 25 per cent reduction was excessive. The court also adjusted various heads of damages, including gratuitous services, interest, case management, accommodation, and transport, finding the original assessment to be inadequate in certain respects.

Consequently, the judgment of the District Court was set aside. Ms Chadwick was awarded damages without any reduction for contributory negligence related to the defendant's intoxication. However, her damages were reduced in specific categories as detailed in the judgment, and the parties were to be heard further on consequential matters, including the appropriate orders and costs.

Orders

Orders of the court

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Background

Background to the litigation

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

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 $ 525.00Case Management-$ 13,546.50 reduced to nilAccommodation-$199,162.00 reduced to $ 150,000.00Transport-$174,485.13 reduced to $ 80,000.00Further 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.

Ratio Decidendi

Legal Principle Established

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