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Driving while intoxicated: Keep an eye on .05

By Paul Sterling

How being intoxicated while driving or even being a passenger with an intoxicated driver can damage your Personal Injuries Claim.

Motor vehicle accidents can cause horrific, debilitating injuries that change your life and livelihood forever. The only potential relief - compensation through a personal injury damages claim. However, add alcohol into the mix and that compensation can very quickly be eroded. Intoxicated drivers or even passengers of intoxicated drivers are at serious risk of damaging their personal injuries claim.


Legal Definition of Intoxication.

Legally, you are defined as intoxicated if, due to alcohol consumption, you can no longer exercise proper care and skill. Although (unlike traffic law) under compensation law your BAC is not a conclusive factor in determining if you are “intoxicated”, there is no shortage of studies and expert opinion as to the relationship between alcohol consumption and reduced physical ability and mental cognition. In recent cases, expert witness testimony has confirmed that a driver with a high BAC would have:

  • behavioural changes leading to inappropriate driving for the prevailing conditions.
  • a degree of muscle incoordination.
  • marked impairment of perception, judgment, and the ability to concentrate.


A real-world example of how your compensation can be affected by intoxication.

Dylan is at a bar with his friend Sam having drinks. Sam seems alright; a little stumble here and there but he’s speaking properly. Dylan is about to call a cab when Sam offers to drive saying he feels fine and cab fees are so expensive these days. Dylan agrees and hops in Sam’s car. The car is approaching a turn (which Sam usually makes with ease), but not this time and the car crashes into a traffic pole. Dylan suffers extreme whiplash, and the pain persists for months rendering Dylan unable to return to his heavy labouring role in the mines where he earns big money. His Employer lets him go and he’s now unlikely to pass the Mining Assessments – so his career in the mines and his ability to earn high income are over. Dylan makes a personal injury claim but only receives 25% of his damages as a result of a reduction for contributory negligence.

What is Contributory Negligence?

Contributory negligence sounds more complicated than it is. To de-bunk what contributory negligence means let’s split the two words up.

Defined as an aid or playing a part in something
Refers to the breach of a duty of care that has resulted in harm.



Therefore, contributory negligence simply means that you played a part in the harm caused to you by a breach of duty owed to you by someone else. All drivers have a legal responsibility to exercise proper care and skill to avoid causing harm to both passengers and other road users. But passengers must take reasonable care for their own safety as well.

Relating it back to our Example

Sam owed Dylan a duty of care to drive safely. However, Dylan knew or should have known that Sam was intoxicated, placing himself in a situation that presented an obvious risk. Consequently, Dylan contributed to his own harm by entering a vehicle driven by an intoxicated person (and was therefore contributorily negligent). 


Implications for the Passenger.

The legal consequences for a passenger injured in a motor vehicle accident where the driver was intoxicated are laid out in the Civil Liability Act 2003. A passenger is presumed to be contributorily negligent if:

  1. The passenger is at least 16 years old; and
  2. The passenger relied on the skill of an intoxicated driver; and
  3. The passenger was aware or reasonably should have been aware that the driver was intoxicated.
  • The minimum reduction of damages for a passenger who is found to be contributorily negligent by the reasons above is 25% unless:
  • The driver’s BAC was 0.15 or more.
  • The driver was so much under the influence of alcohol as to be incapable of exercising effective control of the vehicle.

In those cases, the minimum reduction is then increased to 50% however the court can apply a greater reduction if the facts warrant it – that is if the passenger’s conduct is more “contributory”.



3 ways a Passenger can rebut the Presumption.

The passenger can rebut the presumption of contributory negligence only if it is established that:

  1. The passenger was unaware of the Driver’s intoxication and reasonably so (for example, if Dylan hadn’t seen Sam drinking or stumbling). Or
  2. The driver’s intoxication did not contribute to the accident (for example, because of a fault in the steering mechanism of the car, the accident would have happened regardless of the driver’s intoxication). Or
  3. The passenger could not reasonably have avoided taking a lift from the intoxicated driver (for example, because he was stranded in an unsafe place, the middle of nowhere with no other means of getting home).


What if I didn’t know my Driver was Intoxicated?

Ignorance is not always bliss when it comes to negligence law. The court does not just rely upon whether a passenger was aware of the driver’s intoxication but also upon whether the passenger ought reasonably to have been aware of it. The Court applies the “reasonable person test”. The test allows the court to properly assess whether a normal, regular person could reasonably have known that their driver was intoxicated. Further, voluntary intoxication on the passenger’s part cannot be used to defend the passenger’s inadequate assessment of the driver’s behaviour as the observational powers of a reasonable person are taken from the perspective of a sober state of mind.

Case note: “The issue is not whether a reasonable person in the intoxicated passenger's condition 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”. Judge McHugh in Joslyn v Berryman [2003] HCA 34

What if the accident was caused by a defect in the vehicle?

Proof that the true cause of the accident was a defective part or servicing could be used to prove that the driver’s intoxication did not actually contribute to the accident and to displace the presumption of contributory negligence on the part of the passenger. On the other hand, if the Driver was aware of the defect and drove the vehicle recklessly due to intoxication, Contributory Negligence could still be argued by the Driver’s Insurer. 

Could I have avoided taking a lift with an Intoxicated Driver?

To determine whether a person reasonably could have avoided being the passenger of an intoxicated driver the court assesses the objective factors of the case. Objective factors are not dependent on personality and include the characteristics of a “reasonable person”. The Courts expect a reasonable consideration of the risks of alternative courses of action, based on known or reasonably known facts and by a person with a normal capacity to observe, understand and consider the available alternatives, un-influenced by Subjective factors such as one’s abnormal personality behaviour, irrational fears or mental disorders 


What if I was an intoxicated driver?
Intoxicated drivers are not automatically found wholly negligent if they are involved in car accidents (although this is often the case). Consider Beth’s position in the example below.

Beth has been at a party drinking for a couple of hours and decides to drive home. A car has run a red light and T-bones Beth mid-way through an intersection. Beth had no chance to avoid the accident even if totally sober. Her intoxication played no part in the accident. Beth suffers serious spinal injuries and as a result, can no longer walk. Beth seeks compensation and receives her full damages as she is not found contributorily negligent by the court as her intoxication did not contribute to the breach of duty by the other driver.

An intoxicated driver who suffers harm may only rebut the presumption of contributory negligence if it can be established on the balance of probabilities that:

  • The intoxication did not contribute to the breach of duty; or
  • The intoxication was not self-induced (for example if you were spiked).


How Much Will the Driver's Damages Be Reduced?
  • A minimum reduction of 25% or a greater percentage which the court thinks reasonable will be applied.
  • However, If the person who suffered harm was the driver (Beth and Sam), and the evidence proves that:

1. The driver’s BAC was 0.15 or greater. Or

2. that the driver was so much under the influence of alcohol as to be incapable of exercising effective control of the vehicle

The minimum reduction is then increased to 50%.

How Connolly Suthers Can Support You:

Although being a passenger in a driver’s car (even an intoxicated one) seems quite “blameless”, depending on the circumstances, it can lead to a huge loss of your damages entitlements. Imagine losing 75% of the compensation you deserve because of a spur-of-the-moment lapse of judgment. And for the driver, things can be worse.

Connolly Suthers specializes in compensation law and can provide you with expert legal advice about your next steps after an injury. Contact our Compensation department at (07) 4771 5664 to schedule a consultation.

*Paul Sterling is a Consultant with Connolly Suthers specialising in Accident Compensation Law. Tarlia Condon is a Legal Studies student at the Ryan Catholic College