The Impact of Intoxication on a Personal Injury Claim

Once a plaintiff establishes the elements of their claim, the defendant is then responsible to prove any defence to the claim. One of these possible defences may include that the plaintiff was intoxicated when they were injured and therefore, either partially or wholly responsible for their own injuries.

Intoxicated is defined as being under the influence of alcohol and or drugs.

A common example is if you are injured in a motor vehicle accident and you were driving whilst intoxicated at the time of the accident, you may be able to make a claim against the at-fault drivers CTP insurer.

It is common knowledge that drinking alcohol or consuming drugs affects our judgement, vision, coordination and reflexes, and so it can increase the risk of an accident occurring.

Presumption against the plaintiff

Under the Civil Liability Act 2003 (Qld) (‘the CLA’) there is a presumption that if you are intoxicated, you contributed to the cause of the accident and therefore also your own injuries. This concept is known as ‘contributory negligence’.

Section 10 of the Law Reform Act 1995 (Qld) allows a court to reduce damages by an amount it considers fair and equitable to reflect the plaintiff’s share of responsibility for the harm.

Sections 24 of the CLA and 305G of the Workers Compensation and Rehabilitation Act 2003 (Qld) both provide that a court may reduce the plaintiff’s damage by 100% on account of contributory negligence if it considers it just and equitable to do so.

Denying an intoxication defence

You can deny this presumption by establishing that, although you were intoxicated at the time of the accident, your intoxication did not contribute to your injuries.

You can also deny the presumption by establishing that the intoxication was not self-induced (for example, you were intoxicated because your drink was spiked at a party).

If you cannot establish either of these rebuttal points, any damages you might receive through a compensation claim will automatically be reduced by at least 25% or more depending on the circumstances of your accident.

Please note that even if you are able to deny the presumption of intoxication and contributory negligence, your own action (or inaction) in the circumstances may still give rise to issues of other contributory negligence, if you failed to take reasonable care for your own safety.

If someone else is intoxicated

If you are injured in an accident caused by another person who was intoxicated, you may be able to make a claim for their negligence. However, if you knew, or ought to have known, that this person was intoxicated and still relied on their care and skill, you may also be held partially responsible for your injuries.

For example, if you are injured after you got into a car with a driver who you knew, or ought to have known, was intoxicated and you relied on their care and skill as a competent driver, there is a presumption of contributory negligence under the CLA.

You can deny this presumption if you can establish that either:

1. the driver’s intoxication did not contribute to the accident; or
2. if you can show that you could not reasonably be expected to have avoided relying on the driver’s care and skill.

Again, if you cannot establish either of these points, any damages you receive will be reduced by at least 25% (or more depending on the circumstances of the accident) to account for your contributory negligence.

The minimum percentage for contributory negligence will be as much as 50% depending on the blood alcohol content of the intoxicated person.

How we can help

The Compensation Team at Wallace & Wallace Lawyers are experienced in all aspects of personal injury claims. If you are dissatisfied with your current representation, our experts can also offer a second opinion.

If you, or someone you know has been injured at work, or you want a second opinion, call us now on (07) 4963 2000 or contact us via our online contact form for practical legal advice on how you should proceed.