Intoxication and Motor Vehicle Accident Claims

We all know that drinking alcohol can affect our judgement, vision, coordination and reflexes, and so it comes as no surprise that when mixing drinking with driving, cycling or even just as a pedestrian, it can increase the risk of an accident occurring.

If you are injured in a motor vehicle accident by a driver who is intoxicated, or if you were intoxicated at the time of the accident, you may be able to make a claim against the at-fault drivers CTP insurer.

For more information about motor vehicle accidents generally, visit ‘How we can help – Motor Vehicle Accidents’: https://www.southsidelegal.com.au/motor-vehicle-accidents

What if I was also intoxicated at the time of the accident?

Under the Civil Liability Act 2003 (Qld) (‘the CLA’) there is a presumption that if you are intoxicated, you contributed to the cause of the accident and therefore also your own injuries. This concept is known as ‘contributory negligence’.

You can rebut this presumption by establishing that, although you were intoxicated at the time of the accident, your intoxication did not contribute to your injuries. You can also rebut the presumption by establishing that the intoxication was not self-induced (for example, you were intoxicated because your drink was spiked at a party).

If you cannot establish either of these rebuttal points, any damages you might receive through a compensation claim will automatically be reduced by at least 25% or more depending on the circumstances of your accident.

However, it is important to keep in mind that even if you are able to establish a rebuttal argument to the presumption of contributory negligence under the CLA, your own action (or inaction) in the circumstances may still give rise to issues of contributory negligence if you failed to take reasonable care for your own safety.

Case examples

1.     McConnell v Cosgrove [2017] QDC 139: The Plaintiff gave evidence at trial that he was riding his bicycle in the bike lane when he was spooked by a car horn and swerved to the right and was hit by a vehicle. However, the Plaintiff’s story did not match what he had previously reported to the police and so his credibility was called into question. The Plaintiff also later admitted that he had consumed 7 beers before riding his bike. The Queensland Ambulance Service records noted that he smelled of alcohol and was slurring his words. The judge was satisfied that the Plaintiff was intoxicated and that there were substantial credibility issues and so ruled that the Defendant (the driver of vehicle that hit him) had not breached his duty of care at all, and the Plaintiff was awarded $nil.

2.     Moore v Oakley [2012] QDC 322: The Plaintiff had spent the afternoon at a football club function where he had ‘consumed a good deal of alcohol’ and then decided to go to a nightclub. When he got to the nightclub, he did not want to pay the nightclub cover charge and so began searching for a taxi. A taxi driver refused to take him and drove down the road. The taxi driver then performed a U-turn just as the Plaintiff began walking across the road and collided with the Plaintiff. The court held that the driver had a duty to keep a proper look out which was a separate issue to the Plaintiff’s intoxication level. Therefore, the court said the Plaintiff did not contribute to his own injuries just by being intoxicated (so he was able to rebut the presumption of contributory negligence).

However, the court found that by hailing a taxi from the middle of the road the Plaintiff had demonstrated a failure to care take reasonable for his own safety, and on that basis the Plaintiff was guilty of contributory negligence at common law. He was held 20% contributory negligent.  

3.     Allianz v Swainson [2011] QCA 136: The Plaintiff decided to leave the pub he had been drinking at and hitchhike home because he was too drunk to ride his pushbike. It was around 9:30pm and he was walking along the fog line on the left-hand side of the road with his back oncoming traffic. The Plaintiff saw a vehicle’s headlights in front of him, but the driver of that vehicle failed to notice the Plaintiff in time and hit him. The court found that the driver who hit the Plaintiff was negligence because he failed to keep a proper look out and failed to slow down to avoid the collision. At the trial, the Plaintiff was held 40% responsible for the accident for his failure to walk on the available footpath and failure to walk facing the traffic.

However, the judgement was appealed by the Defendant and the Court of Appeal held that the Plaintiff was 60% responsible because the main cause of the accident was the Plaintiff stepping onto the road directly in front of the Defendant’s vehicle and he only did this because he was intoxicated.

What if I am in an accident after getting into a car with an intoxicated driver?

If you are injured in a motor vehicle accident after you got into a car with a driver who you knew, or ought to have known, was intoxicated and you relied on their care and skill as a competent driver, there is a presumption of contributory negligence under the CLA.

You can rebut this presumption if you can establish that either:

1.     the driver’s intoxication did not contribute to the accident; or

2.     if you can show that you could not reasonably be expected to have avoided relying on the driver’s care and skill.

Again, if you cannot establish either of these rebuttal points, any damages you receive will be reduced by at by at least 25% (or more depending on the circumstances of the accident) to account for your contributory negligence.

The minimum percentage for contributory negligence will be as much as 50% depending on the blood alcohol content of the intoxicated person.

Time limits

Strict time limits apply in Queensland for claims relating to personal injuries to:

1.       provide initial notice of your claim; and

2.       commence court proceedings.

You should obtain legal advice regarding time limits applying to your claim without delay to ensure you are fully informed as to what steps need to be taken and when to protect your rights.

For further assistance

The team at Southside Legal are experienced in assisting people involved in all types of motor vehicle accidents and ensuring you are fully supported. Give our team at Southside Legal a call today.