Should your compensation be reduced if you get in a car with a drunk, even if you did not know?

Charles' Story. 

Let me introduce you to Charles Pallier. 

Charles was a 16-year-old boy, living in regional Tamworth, NSW.

He was your typical Australian boy. He loved rugby, hanging out with his mates and was looking forward to finishing school.

Charles was hoping to join the Armed Forces.


Charles' Dream

I am hoping I might be able to join the Army or Air Force once I get my Senior Certificate.
I think I would like to work as a mechanic for them. I spoke to Dad about it recently, and he says I would have a good shot.

It was October 4, and Charles decided to head to a party at his friend, Suzie’s, older brother’s house. Trent Solomons was hosting a celebration for NRL grand final.

Everyone was drinking and revelling in his or her favourite team’s win.

Later that evening and after they had been drinking for most of the night, one of the older boys became aggressive. He was yelling at everyone who was there to go home.

Trent offered Charles and three of his friends a lift home.

Trent was a P-plater and knew he was over the zero tolerance limit but believed he was under 0.05 blood alcohol limit.

One of Charles’ friends asked Trent if he was all right to drive to which he responded he was fine. 

The five of them got into Trent’s car and made the 8km trip back into town, taking the back roads to avoid the police.

Trent thought he would be funny and try to scare Charles and his mates by deliberately driving off the road and hit a guidepost marker.

The car collided with a culvert (drain) on the side of the road. The vehicle flipped coming to rest on its roof.

Sadly, one of the passengers passed away, and Charles had significant injuries including a brain injury.

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Charles was devastated.

 Charles' life irrevocably changed.        

His brain injury left him almost entirely incapacitated.

His life plan to join the army was now out of reach because of his injuries.

No one should be left incapacitated because a drunk decided to get behind the wheel.

The government recognises this and has provided an avenue for people like Charles to claim compensation under the Motor Accidents Compensation Act 1999 (NSW).

Charles can make a claim for compensation under the CTP insurance scheme. This settlement provides people with financial support.  In cases like Charles', where someone is left almost entirely incapacitated, this support can be vital to ensure the injured party can receive the care and support they need.

Introducing the Motor Accidents Compensation Act 1999.

What is the Motor Accidents Compensation Act?

Click to reveal it's definition

Motor Vehicle Compensation Act

Charles brought a claim against Trent, the driver, for compensation for his injuries.

Before the court hearing, parties are required to have a meeting to attempt to come to an agreement of negligence (who is at fault) and damages (how much compensation they deserve). This session is known as a compulsory conference.

In Charles’ case, the parties agreed to the damages at a total sum of $1,268,520 plus $369,542 for the costs of funds management. The parties also agreed that Trent was negligent, but there was a dispute as to the extent of that negligence and whether Charles contributed to his injuries.

For Charles to succeed he needed to prove that he could not have known Trent was a reckless driver.

Charles’ argument relied on establishing he did not know that Trent was too drunk to drive and that by Trent driving off the road was not a foreseeable event.

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Did Charles know that Trent was drunk? 

Expert evidence presented at Court determined that Trent’s alcohol level at the time of the accident was approximately 0.07 percent.

There was a difference of opinion as to whether Charles would have known that Trent was too drunk to drive.

Charles argued that before getting into the car, he had not seen Trent drinking. He had never met Trent previously so couldn’t be sure whether Trent’s behaviour was because he was drunk or if he acted like that when sober too. Charles engaged medical experts who testified that Trent’s blood alcohol level before the accident would not have been high enough to be showing clear signs of intoxication such as slurred speech and imbalance.

Based on these facts, Charles believed there was no way he could have known that Trent was intoxicated.

Trent argued that Charles knew or should have known that he was too drunk to drive because:

  • 1
    Trent took the back roads to avoid the police; and
  • 2
    other passengers kept asking Trent if he was okay to drive, which showed at least one person in the car was worried about his sobriety.

The trial judge agreed with Trent in this case. Charles knew or should have known that Trent’s driving was impaired based on:

  • 1
    the fact he was a P-Plater and therefore had to have a blood alcohol level of 0%; and
  • 2
    everyone at the party was drinking.

However, the judge noted that while Charles should have known Trent had been drinking and his driving would likely be impaired, there was simply no way he could have known the extent of the risk predicted.

It would have been like staring at an iceberg, thinking that Trent’s drinking presented only a small risk when the true risk was kept deep below the surface.

Should Charles have foreseen that Trent was going to drive off the road?

Trent argued that the risk of them having an accident increased because he was drunk.

Hence, because Charles should have known that Trent was drunk, he also should have foreseen that an accident was likely.  As a result, Charles contributed to his injuries.

Charles, on the other hand, believed that not only could he not have known Trent was drunk but also he could not have known that Trent would deliberately drive off the road as a prank.

Because the decision to scare the boys was a deliberate action by Trent, Charles could not have foreseen such an accident occurring.

The trial judge agreed with Charles, stating:


“While it was foreseeable that [Trent] may drive carelessly and with less than proper attention or that he may have made a mistake as a result of his intoxication, the action in deliberately driving off the roadway was entirely unpredictable.”

The trial judge awarded in Charles’ favour.

The judge agreed that Trent was negligent in his behaviour. He also noted that while Charles should have known that Trent had been drinking, he could not have foreseen such a horrific accident happening.

Charles received his full compensation of $1.6 million.

However, Charles hit a snag. Trent appealed the claim. 

Trent believed that Charles should be held partly responsible for his actions because he accepted a lift knowing Trent was drunk.

The appellant judge agreed.

Charles’ conduct in travelling in the vehicle exposed him to the risk represented by a driver whose driving capacity, and decision-making was impaired due to alcohol.

From Charles’ perspective, Trent deliberately driving off the road was not an obvious consequence, particularly given Trent assured them he was all right to drive.

Nevertheless, the appellant judge believed that Charles’ actions should reduce his compensation by 10%. Charles' new compensation amount was $1, 474, 256.

Charles' case tells us the importance of look out for your safety.

It is clear that Trent’s actions were negligent. He was drunk, trying to be funny and deliberately drove his car off the road.

Charles’ mistake in getting in a car with a drunk person left him with significant injuries, changed his life forever and ultimately cost him $200,000 in compensation.

It provides a timely reminder always to be aware of your safety and to think about the consequences of your actions.

Written by David Davies | Special Counsel