Allen v Chadwick [2015] HCA 47

HIGH COURT OF AUSTRALIA

FRENCH CJ, KIEFEL, BELL, KEANE AND GORDON JJ

ALEX ALLEN APPELLANT

AND

DANIELLE LOUISE CHADWICK RESPONDENT

Allen v Chadwick [2015] HCA 47 9 December 2015 A14/2015

ORDER

1. Appeal allowed in part.

2. Set aside orders 1-4 of the Full Court of the Supreme Court of South Australia made on 10 December 2014 and, in their place, order that:

(a) the appeal be allowed in part;

(b) the cross-appeal be dismissed; and

(c) paragraph 1 of the order made by Judge Tilmouth on 19 November 2012 be varied by replacing the sum of $1,387,888.87 with the sum of $1,223,287.74.

3. Appellant to pay the respondent's costs of and incidental to the appeal to this Court.

On appeal from the Supreme Court of South Australia

Representation

M C Livesey QC with B J Doyle for the appellant (instructed by Hunt & Hunt Solicitors)

R J Whitington QC with J M Atkins and B J Krupka for the respondent (instructed by Meller Olsson Lawyers)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Allen v Chadwick

Torts – Negligence – Contributory negligence – Section 47 of Civil Liability Act 1936 (SA) ("Act") presumes contributory negligence of injured person who relied on care and skill of intoxicated person and who was aware or ought to have been aware that other person was intoxicated – Section 47(2)(b) of Act establishes exception where injured person could not reasonably be expected to have avoided risk – Where respondent travelled in car with intoxicated driver and suffered serious injuries – Whether respondent could reasonably be expected to have avoided risk – Proper construction of s 47(2)(b) of Act – Relevance of respondent's capacity to make reasonable assessment of relative risks – Relevance of subjective characteristics.