Drink Driving: Rights of the Passenger

TGB Personal Injury Lawyer Mal Byrne address the common question, “what are my rights and obligations if I was a passenger in a car and the driver was drunk?”

It is not a crime to ride with a drink driver, but it is a hell of a risk.  You will not be arrested, charged or lose your licence unless the driver was on L plates and you were the supervising driver.  However, while there are few sanctions in the criminal law, passengers riding with drink drivers are penalised under the Civil Liability Act which sets down the law regarding compensation for people injured in a motor vehicle accident.

Clearly, if you are a passenger in a motor vehicle driven by a driver under the influence of alcohol and the driver causes an accident, the accident itself is not your fault, nor is it your fault if you get injured in the accident.  However, the law does expect passengers to accept some responsibility for their behaviour.  The law states that a passenger who knowingly or recklessly rides in a car driven by a driver under the influence of alcohol and gets injured in an accident caused by that driver has contributed to their own misfortune, has been negligent and their compensation should be reduced even though their negligence did not cause the accident.  This is called contributory negligence.  The negligence of the passenger did not cause the accident, but it has contributed indirectly to the passenger’s misfortune.

The principal of contributory negligence for passengers in vehicles driven by drivers under the influence of alcohol is set down in Section 47 of the Civil Liability Act 1936, which states that:

If the injured person –

– Was of or above the age of 16 years at the time of the accident and;

– Relied on the care and skill of a person who was intoxicated at the time of the accident and;

– Was aware, or ought to have been aware, that the other person is intoxicated and;

– The accident was caused by the negligence of the other person and;

– The defendant alleges contributory negligence on the part of the injured person, contributory negligence will, subject to this section, be presumed.

– The presumption is irrebuttable, unless the injured person can establish on the balance of probabilities, that –

– The intoxication did not contribute to the accident or;

– The injured person could not reasonably be expected to have avoided the risk.

In a case in which contributory negligence is to be presumed under this section, the Court must apply a fixed statutory reduction of 25% in the assessment of damages.

Further, if the evidence establishes –

(a) That the concentration of alcohol in the driver’s blood was 0.15 grams or more in 100 ml 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 is increased to 50%.

Hence, if you are injured as a passenger in a vehicle driven by an intoxicated driver responsible for the accident, the presumption states that you will lose 25% of your compensation.  If the driver blew over 0.15 or is deemed to be driving under the influence of alcohol to the point of being incapable of exercising effective control of the vehicle, the reduction increases to 50%.  However, the presumption can be rebutted in certain limited circumstances.

The legislation anticipates that the passenger has some form of control over the decision to get into the vehicle and that the intoxication of the driver caused the accident.  Clearly, a passenger who is abducted or unconscious would not be contributory negligent.  However, a passenger whose judgment is impaired to some extent by alcohol or drug consumption is unlikely to escape responsibility.  The late Chief Justice King in Banovic v Perkovic set down a list of circumstances where he considered that a passenger would be deemed to have failed to exercise care for their own safety when measured against the conduct of a reasonable person faced with the same circumstances.

1.  A passenger might perceive the intoxication of the driver, but does not appreciate the danger and voluntarily accepts the risk and travels with the driver;

2.  A passenger might not voluntarily accept the risk of travelling with the driver whom he or she knows to be intoxicated, but may travel as a passenger in any event because of an unreasonable view that he or she is compelled by a necessity to do so.  [An example of this situation might be where a friend or relative of the passenger has agreed to be the designated driver of the passenger’s own vehicle and the passenger decides reluctantly to go home with the intoxicated driver in his own vehicle rather than for example leave the vehicle at the scene];

3. A passenger aware of the driver’s intoxication may just lack reasonable care for their own safety and fail to appreciate the danger in travelling with the driver;

4. A passenger who knows the driver is likely to be intoxicated but fails to properly assess the driver’s condition before getting into the car;

5. A passenger knowing that the driver is likely to become intoxicated may consume sufficient alcohol themself, and be unable to property assess the capacity of the driver at the appropriate time.

However, the courts accept that the safety of the vehicle and its occupants is the responsibility of the driver.  If a driver has agreed to be a designated driver and remains sober and the passenger drinks to the point where he or she is unable to properly assess the capacity of the driver to drive would have a chance of arguing that in those circumstances they could not have been expected to have avoided the risk.  This is because there was no reason for the passenger not to drink in circumstances where the driver had undertaken to remain sober.  This is different from example five above, as the passenger in those circumstances knew the driver was likely to be intoxicated whereas that is not the case if a normally trustworthy driver gives an undertaking perhaps at the commencement of a night out to remain sober.

However, passengers seeking to rebut statutory presumptions can face difficulties in proving what they knew about the undertakings that might have been by the driver before a night out and the state of the driver when they got into the vehicle later on.  Courts accept that the best evidence is evidence given by a sober person on the night.  Courts are less likely to rely on the evidence of people who concede that they were impaired by alcohol or drug consumption on the night of the incident.

Hence, if you have to rebut the presumption, your best chance of doing so would be to get evidence from a sober person on the night of the incident who observed the behaviour of the driver at around the time that the driving occurred and saw nothing to indicate that the driver might have been impaired.  This would also be the case in relation to evidence given on alcohol consumption on the night.

What often happens is that the courts are faced with evidence solely from the driver of the vehicle and the passenger, both of whom were drinking on the night in question.  Courts are less likely to rely on that evidence because they are aware that it is tainted by the potential impairment of the passenger and driver and perhaps because both the passenger and driver have a vested interest in giving the same evidence about that issue.

Sometimes, parties will call expert evidence from forensic scientists on blood alcohol readings, levels of impairment, what levels of impairment are apparent to the naked eye and what are less apparent.  If the blood alcohol reading is less than 0.15, you might be able to argue that the driver’s level of impairment would have existed, but would not have necessarily been apparent to anyone observing that person.  That argument would be harder to run when the blood alcohol limit is over 0.15.

If you were riding on a plane, helicopter, train, bus, boat or taxi, driven by a drunk driver, you would be terrified and angry.  The same principle should apply to your designated driver mates.  Perhaps the test for a passenger should be, “if this car was a helicopter, would I still ride with this person?”  Ultimately, it’s a ‘judgment call’, but one with safety, legal and financial consequences if you get it wrong.

TGB is South Australia’s largest injury law firm, for further information or legal assistance contact your nearest TGB office.