Introduction

Motorcycle use in Australia has been steadily increasing since the early 2000s but the percentage of motorcycle registrations only account for around 4.5% of all passenger vehicle registrations. However, motorcycles account for a shockingly disproportionate number (around 15%) of all road crash deaths. Of those road deaths, alcohol and drugs were a causal factor in the accident 46% of the time. It’s a fact which reinforces something we all already know: drinking and driving do not mix. Below we examine the facts in a case of a motorcycle death where alcohol was a factor and the question of fault was the Court’s chief concern.

Summary

After a night of heavy drinking, a couple of friends decided to take a 5am ride on their off-road motorcycles. The trail bikes were both unregistered and neither had headlights, despite the friends taking them onto a public road. Though the plaintiff was an experienced trail bike rider, he was unlicensed. The two friends were involved in a head-on collision while travelling from opposite directions on the road.

The crash occurred around 1.5 metres from the centre of the road on the plaintiff’s side, and both bikes collided on their left sides. This means that the defendant’s bike strayed across the path of the plaintiff’s bike prior to collision. Both plaintiff and defendant were intoxicated, but only the defendant was determined to be moving in excess of the speed limit.



Though the plaintiff was the only one wearing a helmet, he still suffered extreme injury. The plaintiff had his left leg amputated and lost the use of his left arm. Because the defendant was unregistered and uninsured, the plaintiff had to sue ‘the Nominal Defendant’, which is the stand-in entity for unregistered or uninsured vehicles.

Defendant

The defendant argued that the plaintiff was not owed a duty of care because the plaintiff had knowledge of the defendant’s intoxication. The defendant argued that even if the plaintiff was owed a duty of care, he contributed so extensively to the accident that his right to compensation should be reduced by 100%.



Furthermore, both the defendant and the plaintiff were willingly engaged in illegal activity (riding unregistered trail bikes while heavily intoxicated, and the plaintiff was unlicensed) and thus were both guilty of “joint illegal enterprise”. Because of their joint breach of criminal law, the defendant argued that the plaintiff was not entitled to claim compensation.

Plaintiff

The plaintiff accepted that he and the defendant were both at fault for the accident, but that the defendant was far more at fault and thus still owed the plaintiff a duty of care. The plaintiff reasoned that the defendant was more liable for the accident because, but for the defendant’s negligence in drifting to the plaintiff’s side of the road, the accident would not have happened. Unlike the plaintiff, the defendant failed to use a helmet, failed to maintain an appropriate speed, and failed to stay on his side of the road. The plaintiff argued that while his own actions contributed to the accident, it should only reduce his compensation claim by 25% because the defendant was 75% at fault.

Conclusion

The District Court and the Court of Appeal both ruled in favor of the plaintiff. They found that it was clear that the defendant’s failure to stay on the opposite side of the road was the primary cause of the accident, and it could have been avoided had he exercised reasonable care. While the defendant owed a duty of care to the plaintiff, the plaintiff was not completely absolved of fault. Thus the Court reasoned that the plaintiff’s right to compensation should be reduced by one-third (33%) for contributory negligence. For legal help contact the personal injury lawyers.