By Partner, Stuart Eustice and Lawyer, Holly White

There is an established duty of care owed by motor vehicle drivers to other road users, including passengers. However, there are circumstances in which a passenger’s knowledge of the driver’s incapacity means the driver can maintain a defence that the passenger voluntarily assumed the risk: a volenti defence.

In Biggs v O’Connor, four men spent the day at a golf course, drinking while playing golf and sharing a few rounds in the bar before heading home. Two men left in a car, and two by motorcycle. The plaintiff’s husband, Mr Biggs, accepted a lift from the defendant, Mr O’Connor on his motorcycle. Mr O’Connor lost control of the vehicle and Mr Biggs passed away. The plaintiff commenced proceedings against Mr O’Connor seeking damages for psychiatric injury caused by Mr Biggs’ death.

The Court found that Mr Biggs was not aware of Mr O’Connor’s incapacity and had accordingly not voluntarily assumed the risk of injury causing death. Pain and suffering damages of $275,000 and economic loss of $380,000 were awarded.

The Court heard evidence from the other three men in attendance, as well it studied CCTV footage of the bar and in the carpark. Expert testimony was provided as to Mr O’Connor’s blood alcohol content following the accident.

There was no evidence that Mr Biggs was with Mr O’Connor throughout the day, and therefore did not know how much alcohol Mr O’Connor had consumed while playing golf. Mr Biggs was however aware of how many drinks Mr O’Connor had at the bar (approximately 5). There was no evidence Mr O’Connor showed any obvious signs of intoxication. CCTV footage showed Mr O’Connor walking normally and putting items into his motorcycle without apparent difficulty.

The two men who went home by car had offered Mr O’Connor and Mr Biggs a lift, however each admitted this was due to their own apprehension Mr O’Connor’s BAC exceeded the legal limit to drive. They were merely concerned he could lose his licence as opposed to any impairment to drive.

In summary and in consideration of the relevant authorities, if a driver shows obvious signs of intoxication, e.g. slurring words, inability to walk straight, it is open for a Court to conclude the passenger consented to the risk of an accident occurring. The test is of course subjective – a passenger must have knowledge of the risk and full appreciation of the danger.