Volenti defence against a wife's psychiatric injury claim Volenti defence against a wife's psychiatric injury claim

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Volenti defence against a wife's psychiatric injury claim

24 January 2022 | CTP

The wife of a pillion passenger killed in a single vehicle collision succeeded in her claim for damages against the intoxicated driver, because a volenti defence was unsuccessful, and the duty owed to her was independent of other duties.

In Issue

  • Whether special and exceptional circumstances existed which meant that the Defendant did not owe the Plaintiff's husband any duty of care, and whether any such duty was necessary for the purposes of the plaintiff’s claim. Alternatively, whether a defence of volenti non fit injuria (voluntary assumption of risk) applied.

The background

The Defendant was the rider of a motorcycle involved in a single vehicle collision. The Plaintiff's husband (Biggs) was his pillion passenger at the time.

The Defendant, Biggs and 2 other persons (Edwards and Allen) had played an 18 hole round of golf in the afternoon, while consuming alcoholic drinks. All 4 persons then kept company together and consumed further alcoholic drinks over a further 2.5 to 3 hours.

When the group decided to leave the golf club, Edwards and Allen tried on 3 separate occasions to discourage the Defendant from riding his motorcycle and offered him a ride in their car. The Defendant refused and Biggs decided to ride with the Defendant to keep him company.

The Defendant was involved in a single vehicle accident resulting in Biggs’ death.

The Plaintiff sued the Defendant seeking damages for psychiatric injury.

The decision at trial

The Trial Judge opined that the evidence supported the following conclusions:

  • Biggs was aware of the Defendant's consumption of alcohol during the round of golf but not the number of drinks consumed.
  • Biggs was likely aware of the Defendant's consumption of alcohol in the clubhouse after the round of golf and also aware of the number of drinks consumed.
  • The Defendant had not reached peak alcohol absorption by the time of the Incident and therefore, his blood alcohol concentration was at or above 0.125%.
  • The Defendant did not have any overt signs of significant intoxication such as slurring of his speech and unsteady gait.
  • The concern which led Edwards and Allen to suggest that the Defendant refrain from riding his motorcycle stemmed largely from the Defendant's emotional upset at recalling his late wife, and from a concern that he may encounter police during his ride while his blood alcohol concentration was over 0.05%, rather than a genuine concern as to the Defendant's capacity and judgment being affected by his level of intoxication. Biggs likely held the same concern.

Therefore, the Trial Judge concluded that the Defendant had not proven that "Biggs believed the Defendant to be so grossly intoxicated that he should not maintain an expectation that the Defendant would ride the motorcycle with some degree of prudence, or that he voluntarily accepted the risk of riding with the Defendant on the motorcycle in that condition". The volenti defence failed.

His Honour also found that the duty of care owed by the Defendant to the Plaintiff is independent of the duty owed to Biggs. In this respect, His Honour specifically stated that the duty asserted by the Plaintiff was not novel because existing authorities recognise that a driver of a motor vehicle should have in contemplation the potential of mental harm to the spouse of a primary victim injured in an accident caused by the driver’s negligence. The duty of care owed to a secondary victim is not dependent upon an established or pre-existing duty of care being owed by the wrongdoer to the primary victim. It is not necessary for a secondary victim to establish that the primary victim had a good cause of action against the driver in order for the secondary victim to succeed.

Implications for you

This decision reinforces the difficulty in establishing the defences of no duty of care owed or volenti, requiring defendants to prove actual knowledge of intoxication and the acceptance of any risks associated with a reduced capacity caused by intoxication. This decision also illustrates that the courts will analyse the duty of care owed to a secondary accident victim independently of whether any duty was owed or breached to the primary victim, and noted that, from a policy perspective, the availability of a good cause of action to secondary victims may serve as an appropriate deterrent to intoxicated drivers.


Biggs v O'Connor [2021] VSC 826

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Cindy Ting

Cindy Ting

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