Skip to content

DBH Lawyers

- 17 Dec 2015
  • Personal Injury

Drunk drivers and failure to wear a seatbelt

On the 9th of December 2015, the High Court of Australia delivered its decision in the case of Alex Allen v Danielle Louise Chadwick.

The Brief Facts

Ms Chadwick suffered injuries in a car accident which rendered her a paraplegic. The driver of the car, Mr Allen, had a blood alcohol level of 0.229. Ms Chadwick was aware that he had been drinking extensively. Ms Chadwick was not wearing a seatbelt.

The Issues for Determination

The High Court had to decide whether Ms Chadwick was contributorily negligent for choosing to travel in a car driven by Mr Allen when she ought to have known he was intoxicated and secondly, for failing to engage her seatbelt.

The Law – Drink Driving

Section 47(2)(3) of the Civil Liability Act, 1936 (SA) effectively provides that if the injured person should have been aware that the driver was intoxicated, then in the case of a 0.229 blood alcohol reading, the injured person is contributorily negligent and their damages are reduced by 50%. There is an exception where the injured person can establish that they could not reasonably be expected to have avoided the risk of injury to rebut the presumption in favour of contributory negligence.


Section 49 of the Civil Liability Act, 1936 (SA) provides that there is a statutory reduction of 25% for the assessment of damages where the injured person was not, at the time of the accident, wearing a seatbelt.

The Court’s Findings

The High Court found that the presumption could be rebutted by Ms Chadwick with respect to the 50% reduction for travelling with a drunk driver. The Court relied upon the fact that Ms Chadwick was a pregnant young woman, on a dark and unfamiliar country road of an uncertain distance from the township of Port Victoria in the early hours of the morning. This could lead reasonably to an evaluation of real risk of harm either from strangers or difficulty of a walk in unfamiliar territory and that the substantial risk of riding with Mr Allen in the car, although he was intoxicated, could reasonably be regarded as lessened to a relatively acceptable level by reason of the absence of other vehicular traffic on the road at the time.

In other words, the risk of driving with Mr Allen was a reasonably lesser risk than walking back to the town in these particular circumstances.

On the subject of the wearing of the seatbelt, the High Court reinstated the primary trial Judge’s decision that a 25% reduction was appropriate. Although Ms Chadwick re-entered the vehicle and Mr Allen took off driving erratically and at speed, and Ms Chadwick argued that she was thrown around in such a way that she could not engage the seatbelt, the trial Judge did not accept that was the case.

The Full Court of the Supreme Court of South Australia had earlier determined that Ms Chadwick was not guilty of contributory negligence for the reasons set out by the High Court and also considered that she could be excused by the circumstances for not wearing her seatbelt as she did not have an opportunity to engage it. The basis of that finding was that failure of Ms Chadwick to fasten her seatbelt was due to the “act of a stranger” defence which provides in criminal matters that it is a defence to show that the forbidden act occurred as a result of an act of a stranger or as a result of non-human activity over which the Defendant had no control and against which she could not reasonably be expected to guard. The High Court upheld the trial Judge’s decision on the basis that the trial Judge was in the best position to find that Ms Chadwick was not prevented from fastening her seatbelt.

This was a significant victory for Ms Chadwick as the Defendant, through its insurer, had argued that her damages should be reduced by 62.5% (50% for the blood alcohol reading and then a further 25% for the seatbelt). This decision means that her damages are only reduced by 25%.

The Lesson

The legal lesson is that whilst there are presumptions in favour of automatic reductions for travelling in a vehicle driven by a person who you know, or ought to have known, is intoxicated and/or failing to wear a seatbelt, these presumptions can, with the right facts, be overcome.