It is the Christmas Season once again in Western Australia which as we all know, is a time of excess. It is common to eat too much and of course to drink too much.
Once it is all over if the visitors are not staying at the host’s house they have to make their way home. Nobody wants to be involved in a car accident but in this article we have provided some general information as to what to expect in the event that an accident.
Please note this is general information only and is not a substitute for legal advice applicable to your specific situation.
Driver who has consumed alcohol
Where the driver is intoxicated at the time of the accident the Civil Liability Act Section 5L reverses the normal onus of proof and states that the intoxicated driver is presumed to be contributorily negligent and puts the onus on the driver to prove otherwise. Contributory negligence can be up to 100% in which case it will cause a person’s case to fail. Intoxicated is defined as affected by alcohol or a drug or other substance capable of intoxicating a person to such an extent that the person’s capacity to exercise reasonable care and skill is impaired. In some situations, it will be easy to prove that the intoxicated driver was not negligent. For example, if the evidence is that the intoxicated driver’s vehicle was stationary at a set of traffic lights and faced with a red signal when he was struck by another vehicle from behind then on the face of it the driver will make out that he was not negligent. In other circumstances, most notably situations where the other driver was a pedestrian the presumption is harder to rebut.
Driver has consumed alcohol, passenger has not consumed alcohol
If a passenger gets in a vehicle with an intoxicated driver it is likely to face defences along the lines of the passenger voluntarily assumed the risk of travelling with an intoxicated driver and therefore the passenger himself or herself was therefore negligent. If the matter proceeds to a trial it is often the case that the injured passenger is asked questions along the lines of:
- did you see the driver drinking alcoholic beverages?
- how many alcoholic beverages did you see the driver drinking?
- what kind of beverages did you see the driver drinking?
- was the driver behaving strangely, and if so in what way?
In short, the solicitors for the insurer (in Western Australia usually the Insurance Commission of Western Australia) will try to show that the passenger knew that the driver was intoxicated and therefore assumed the risk of travelling with an intoxicated driver. They would, therefore, submit to the judge at trial that the injured passenger should not be awarded compensation.
Driver has consumed alcohol, passenger has consumed alcohol
The situation is much the same as the situation in “Driver has consumed alcohol, passenger has not consumed alcohol” above, except the solicitors for the insurer (in Western Australia usually the Insurance Commission of Western Australia) will also argue that the passenger is presumed to be negligent in that he or she has consumed alcohol and the injured person will have to bring evidence to rebut this assumption.
The argument often used is that the intoxicated passenger’s ability to assess the intoxicated driver is impaired as a result of drinking alcohol. Alternatively, if the intoxicated passenger does not conduct any assessment of the intoxicated driver at all the solicitors for the defendant may argue that the intoxicated passenger’s omission was caused by his consumption of alcohol. The solicitors for the defendant may also argue that the memory of the injured passenger was impaired and therefore his or her evidence should not be relied upon.
Applicability of third party insurance policy to intoxicated at fault drivers
The third party policy of insurance provided through the Insurance Commission of Western Australia usually provides cover regarding a personal injury claim brought by another person against the at-fault driver for personal injury. Where the at-fault driver was intoxicated at the time of the accident the terms and conditions of the policy insurance states “the owner warrants that the vehicle will not be … driven by or in charge of himself/herself or any other person who is unlicensed to drive or who is under the influence of intoxicating liquor” and if the Insurance Commission of Western Australia pays damages to another person then the Insurance Commission of Western Australia may seek to recover the damages together with their legal costs from the at-fault driver.
If you need a lawyer in such cases, find someone who can give you the best service. There are several law firms in Western Australia who are personal injury claim specialists and operate in the area of workers compensation claims, motor vehicle accident claims, public liability claims, and criminal injury claims. Also provides no win no fee representation in respect of these personal injury claims and an obligation free initial assessment if you do not proceed.