concerns the operation and interpretation of Parts 6 and 7 of the Civil Liability Act 1936 (SA) which
construct a regime for determining negligence and create a presumption of contributory
- The injured person
has relied on the care and skill of a driver who they knew or ought to have
known was intoxicated – Section 47(1);
- The injured person was
not wearing a seatbelt as required under the Road Traffic Act 1961 – Section 49(1)(a).
The relevant provisions
mandate the application of a fixed statutory reduction of either 25% or 50%
depending on the negligent driver's blood alcohol concentration, and 25% in the
case of failure to wear a seatbelt.
that arises in circumstances involving driver intoxication may be rebutted by
establishing, on the balance of probabilities, that "the injured person could not reasonably be expected to have avoided the
risk" – Section 47(2)(b).
Ms Chadwick, aged
21, and Mr Allen, aged 28, had been in a relationship of several years'
duration. At the time of the accident, Ms
Chadwick had recently discovered that she was 9 or 10 weeks pregnant.
On 10 March 2007, the
couple and Ms Chadwick's 5 year old daughter set off from their home in the
Adelaide Hills on for a weekend on the Yorke Peninsula. The following morning they met up with Mr
Allen's friend, Martlew, and his two children, in Port Pirie. The group then travelled in Martlew's car to
Kadina, Port Broughton and Wallaroo before arriving at Port Victoria late in
the afternoon. The two men consistently
consumed alcohol over the course of the day and until the early hours of the
morning on 12 March 2007 when the collision occurred.
Between 1.30am and
2.00am, Ms Chadwick decided to go for a drive in order to purchase
cigarettes. Mr Allen and Martlew
accompanied her. The length of the journey
and route taken were a matter of conjecture but it was found that Ms Chadwick
drove around the town and its environs for approximately 10-15 minutes, during
which time it was accepted that Mr Allen and Martlew were shouting a series of
confusing directions at her.
At one point, Ms
Chadwick pulled over to the side of the road and exited the vehicle in order to
urinate. It was later ascertained that
the car was stopped on the edge of the township, approximately 500m from the
Port Victoria Hotel where they were staying with street lighting in the
distance, to the north and south east, some 200m away in each direction. Notwithstanding these undisputed facts, Ms
Chadwick gave evidence that she was "in
the middle of nowhere", in complete darkness and disoriented as to her
When Ms Chadwick
returned to the car, Mr Allen had assumed the driver's position and insisted
that she get in. There was an argument
between Ms Chadwick and appellant as to who should drive, with Mr Allen
Mr Allen took off
and drove into town aggressively and erratically. Ms Chadwick did not put on her seatbelt and it
was contended that the gravitational forces generated by Mr Allen's manner of
driving made it impossible for her to engage the seatbelt mechanism. A short time later he lost control
negotiating a bend at high speed and collided with a tree. Ms Chadwick was ejected from the vehicle on
impact, suffering spinal injuries resulting in complete L3 paraplegia.
Mr Allen's blood
alcohol concentration at the time of the collision was estimated to be
0.229%. Ms Chadwick consumed minimal
alcohol during the course of the day and night and returned a zero blood
THE DECISIONAL HISTORY
At first instance, the Trial Judge (Judge Tilmouth) found that:
- Ms Chadwick ought to have been aware that Mr Allen's capacity to drive
was impaired by alcohol, such that the presumption of contributory negligence
applied and she was liable to have her damages reduced by 50% pursuant to
Section 47 of the Act.
- Ms Chadwick however satisfied the exception contained within 47(2)(b)
of the Act in that she could not reasonably be expected to have avoided the
risk of travelling with Mr Allen.
- Ms Chadwick had no objective choice but to enter the car based on her
belief that she was in a darkened area and her misapprehension of just how
close she in fact was to the township.
This was despite his findings that Ms Chadwick had "lied profusely in order to enhance her damages claim", the
presence of streetlights and their operation on the night in question and the
fact that Ms Chadwick was "within
600 m or less than 10 minutes walking distance from the motel unit".
- As a matter of law, Ms Chadwick's failure to fasten her seatbelt might
be excused on the basis that she was
prevented complying with the statutory requirement to do so by the conduct of
another, or in this case the erratic driving of the vehicle by Mr Allen.
- However, the "act of a
stranger" defence was not made out on the facts as the evidence
indicated that there were at least two opportunities in which Ms Chadwick could
have fastened her seatbelt. Accordingly,
she was contributorily negligent and her damages were reduced by 25%.
Mr Allen appealed to the Full Court on the issue of intoxication and Ms
Chadwick cross-appealed on the seatbelt reduction.
The majority (Gray and Nicholson JJ; Kourakis CJ dissenting) dismissed Ms
Chadwick's appeal in relation to alcohol, observing that the question posed by Section
47(2)(b) was "whether the conduct of
a plaintiff, in choosing to expose themselves to a risk of injury, which risk
in fact eventuates, can be excused".
In doing so, Ms Chadwick's claimed disorientation and feelings of
helplessness and panic were held to be "readily
understandable" and rationalised her subsequent choice to expose
herself to a risk of injury by riding with Mr Allen in lieu of walking the
short distance back to the hotel. The
majority observed that Ms Chadwick "is
not to be judged by reference to the standard of a perfectly rational decision-maker".
The Full Court agreed with the Trial Judge that the mandatory reduction
under Section 49 will not apply where the failure to wear a seatbelt occurred
in circumstances of involuntariness or as a result of the unlawful act of
another person. However, it unanimously set
aside the finding of contribution on the basis that "Ms Chadwick's actions were a direct and natural response to Mr
Allen's bad driving".
- By grant of Special Leave, Mr Allen appealed to the High Court (French CJ,
Kiefel, Bell, Keane and Gordon JJ) on the issue of contributory negligence
which unanimously dismissed his appeal in relation to Section 47 and unanimously
allowed his appeal in relation to Section 49, observing:
- Section 47(2)(b) contemplates an objective evaluation of relative risk
in a given situation by the exercise of reasonable powers of observation and
appreciation of one's environment, as well as the exercise of a reasonable judgment
of the relative risk of alternative responses to the environment as observed
- The evaluation which Section 47(2)(b) involves makes no allowance for a
claimant's subjective difficulties of cognition and decision-making, nor will confusion,
panic or anxiety on the part of the claimant reduce what reasonableness
- On the evidence, it was not unreasonable for Ms Chadwick to have had no
clear appreciation of her proximity to the township from the driver changeover
point. Once accepted that Ms Chadwick
did not know where she was, the availability of a relatively low risk
alternative to travelling with Mr Allen was not readily apparent. Although a reasonable person may have taken
the time to reflect upon their geographical location, they would not
necessarily have appreciated that they were a relatively easy walk from the
hotel and might still have formed the same imperfect understanding of their
- Ms Chadwick's age, pregnancy, the fact that she was on a dark and
unfamiliar country road an uncertain distance from the township in the early
hours of the morning could reasonably lead to an evaluation of a real risk of
harm. The risk of riding with Mr Allen
could reasonably be regarded as lessened to a relatively acceptable level due
to the absence of other vehicular traffic on the roads at that time.
- On a reasonable evaluation of these facts and the relative risks
associated with them, Ms Chadwick could not reasonably be expected to have
avoided the risk of travelling with Mr Allen.
- The relevant question in relation to Section 49 was not whether Ms
Chadwick's failure to fasten her seatbelt was an understandable, or even a
reasonable response, to Mr Allen's driving, but whether she was prevented from doing
so by him. The evidence did not support such
a conclusion and there was no reason to interfere with the Trial Judge's
findings of fact.
Chadwick succeeded in avoiding the alcohol reduction on the particular facts of
this case, the High Court's decision represents a clear rejection of the Full
Court's approach which sought to assess the reasonableness of Ms Chadwick's decision-making
by reference to her mental and emotional state.
The High Court
confirmed that any subjective characteristics or idiosyncrasies which might
diminish the injured person's capacity to make a reasonable assessment of the
relative risks attendant upon a particular course of action, such as
impetuosity, drunkenness, hysteria, mental illness or personality disorders,
are immaterial to the evaluation which s47(2)(b) postulates.
The decision now
brings South Australia into line with the objective approach to contributory negligence
confirmed by Joslyn v Berryman (2003)
214 CLR 552 and will be of broader application in the Australian Capital
New South Wales3 and the Northern Territory4 and which have identical or similarly-worded counterpart provisions.
Until the advent of
this decision, the "act of a
stranger" doctrine was a peculiarly South Australian construct which
had not been examined in any other Australian jurisdiction. Whilst it would appear that the defence may theoretically
be available to rebut the presumption of contributory negligence where an injured
person has failed to wear a seatbelt, in practical terms it will have very limited
application confined to circumstances where such contravention is involuntary
and compliance rendered entirely impossible by an extraneous and unforeseen
 s96(2)(b) Civil Law Wrongs Act 2002
s48(3)(b) Civil Liability Act 2003
s138(2)(b) Motor Accidents Compensation
Act 1999 (NSW)
s15 Personal Injuries (Liabilities and
Damages) Act (NT)
Shona Wilde, Sydney
Graeme Armstead, Melbourne
Darren Miller, Perth
Chris Osborne, Darwin