Contributory negligence and the intoxicated driver

AAMI Limited v Hain [2008] NSWCA 46

Bezley JA, Tobias JA and McClellan CJ

In Brief

• In assessing, for the purposes of section 138(2)(b) MACA, whether an injured person ought to have been aware of the driver's impairment from alcohol, consideration is to be given to the totality of the evidence including the observations and knowledge of the person and any other credible witness. The provision does not merely require consideration of the available objective evidence.

• Even where there is evidence that a Plaintiff knew a driver had consumed some alcohol in the relevant period, there is no obligation, based upon that knowledge alone, to inquire as to his fitness to drive before accepting a lift.