Criminal laws are defined as laws in Australia that are effectively designed to protect society from wrongful actions. This law provides punishment for the persons breaking the law which includes forfeiture of that person’s right or he/she may be charged to imprisonment also. Criminal law is also known as penal law. This law includes Traffic/ road laws, Public order, laws related to property damage and laws related to people (Ashworth, 2015). Drink driving is included under traffic/ road laws.
Drink driving is treated as serious and major offence as per Australian criminal law. As per laws related to drink driving in context of Australia, if a person is found to be driving a vehicle over the specified threshold level of BAC (Blood alcohol concentration) of 0.05, then those persons charged to various penalties. BAC defines the percentage of alcohol present in the blood, the higher the BAC, the greater the punishment and damage (Jacobs, 2013). Drunk driver are required to face both criminal charges and civil liability for their actions. In case of civil liability, a law suit is filed by the victim facing injury or his/ her family against drunk driver for recovering damages like cost of medical treatment and property damage. In addition to this, criminal drunk driving charges include fines, suspension or cancellation of licence and imprisonment (Bergman, 2015). The penalties for drink driving depend on the type of offence committed by the person, when the offence is committed, Age of person at the time of committing offence, the permit or licence held by that person and whether it was the first offence or not.
There are three drink driving offence which are required to charged. It includes Driving under influence of alcohol and drugs (DUI), Driving with prescribed concentration of alcohol (PCA) and refusing to comply with directions of police in relation to breathe testing. Therefore, a person may be charges with driving under the influence of alcohol and drugs; if that person is incapable of controlling the vehicle which he/she is driving (Ashworth, 2015). If a person is incapable of controlling the vehicle he/ she are not causing damage to themselves only, but to the other persons on the road. Therefore, if an injury or damage is cause to a person because of taking lift or ride from an intoxicated person then it creates liability of person causing accident over other person about his/ her medical care or payment for the damage or losses incurred. Moreover, if it is known by person taking lift that the driver is under the influence of alcohol, then it creates risk on part on that person.
As per Australian criminal law, Negligence is defined as a term that symbolizes the conduct of a person that causes a risk of harm for others and oneself also. Contributory negligence is described as a term that includes the conduct of a person which creates harm or injury to oneself. In addition to this, contributory negligence is the most appropriate means of providing just and socially accepted outcomes (Dongen, 2014). Furthermore, as per Australian criminal law related to drink driving it can be defined as a more complex situation where plaintiff is also intoxicated (under the influence of alcohol) and takes lift from intoxicated driver. Therefore, that person is also responsible for injury that causes to himself/ herself. Because, that person failed to take care of his/ her own safety, due to this he/ she may also held to contribute to the injuries that was caused due to negligent driving of defendant.
It is also an important thing that should be considered that taking a ride from driver who is drunk creates obvious risk as civil liability legislation. Moreover, it may also become difficult in certain situations for defendant to prove that plaintiff has accepted the obvious risk.
Contributory Negligence is particularly applied to the case where plaintiff is aware that defendant is driving under influence of alcohol and still accepts the lift. Therefore, the plaintiff is guilty of contributory negligence in such a situation. As per Australian criminal law, IPP panel gives a recommendation that, same objectives standards should apply to contributory negligence for plaintiff as the standard of care are applicable to defendants. As per Queensland, New South Wales, South Australia and Northern Territory, a minimum reduction of 25% is imposed on amount of recovery to be claimed by plaintiff. Because plaintiff was aware of the fact that defendant was intoxicated and he/ she were also under the influence of alcohol (Goudkamp, 2015). The way in which plaintiff can disprove the presumption (plaintiff is guilty of contributory negligence as he/ she failed to take appropriate and reasonable care for their own safety) varies in different states and also carry different results. In New South Wales, if the plaintiff is required to disprove the presumption, then he/she must satisfy the court that plaintiff self- intoxication does not contribute in any way to the damage or injury that is caused due to the accident.
The present case is based on concept of contributory negligence because Rebecca (Plaintiff) was aware of the fact that Michelle (Defendant) was too drunk to drive, and then also she accepted to take ride from Michelle. Therefore, she is considered as guilty of contributory negligence as she failed to take reasonable care for her own safety and hence liable to contribute for her own injury. In addition to this, it is defined as the situation where plaintiff (Rebecca) is also intoxicated and she takes ride for home from an intoxicated driver (Michelle). Therefore, Rebecca can sue Michelle for recovering losses of injury that is incurred to her because of accident. But she will get compensation amount after a minimum reduction of 25% on amount of claim because she accepted a ride from an intoxicated person even when she was aware.
Ashworth, A. (2015) Sentencing and Criminal Justice.UK: Cambridge University Press.
Bergman, P. (2015) Criminal Law: A Desk Reference. US: Nolo.
Buckley, R.A., 2015. “Injured passengers and the defence of illegality”. Common Law World Review, 44(3), pp.192-202.
Dongen, E. (2014) Contributory Negligence: A Historical and Comparative Study. Netherland: Martinus Nijhoff Publishers.
Gans, J. (2011) Modern Criminal Law of Australia. UK: Cambridge University Press.
Goudkamp, J. (2015) “Apportionment of damages for contributory negligence: a fixed or discretionary approach?”. Legal Studies, 35(4), pp.621-647.
Jacobs, J. (2013) Drunk Driving: An American Dilemma. US: University of Chicago Press.
Klein, S. (2013) Learning: Principles and Applications. US: SAGE Publications.