Insurance commisisoner v joyce facts drunk driver and

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Insurance Commisisoner v Joyce Facts: Drunk driver and drunk passenger Held: o Latham:In the case of a drunken driver all standards of care are ignored as such driver cannot be expected to act sensibly 1. Such driver is simply just chancing it 2. The Plaintiff voluntarily encountered the risk which was obviously associated with the drunken condition of the driver. o Dixon (dissenting)suggested reduced standard of care However this does not apply in cases whereby the Plaintiff was unaware the Defendant was drunk: Banovic v Perkovic Facts: o To make out volen case in drink driving situations, it requires that P perceived that the driver was or could be intoxicated to render him unsafe, and that he fully appreciated that it was dangerous to travel with him, and that neverthelss voluntarily decided to take the risk and travel with the passenger. o Provided that a person knows the intention of the driver (to stay sober) and there is no reasonable anticipation of the driver becoming
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intoxicated, then the P can drink as much as they please as it the D’s obligation to remain sober. o In the absence of some clear indication that the driver will fail to discharge his obligation, the passenger is not excepted to take precautions against such failure. Gala v Preston- Court held that this knowledge could be implied (P & D drinking together all day) OBVIOUS RISK PROVISION- EVIDENTIARY SHORTCUTS The Wrongs Act provides a shortcut for the defendant in the situation where the risk in question was an obvious risk. Under s.54(1) Wrongs Act , if the defence of voluntary assumption of risk defence is raised and the risk of harm of is an obvious risk, then the plaintiff is presumed to be aware of the risk, unless they can prove, on the balance of probabilities, that they were not aware of the risk. There is a limitation of s.54(1) - Under s.54(2) , it does not apply to: a) a proceeding in relation to a professional or health service b) a proceeding in respect of risks associated with work done by one person for another So, in either of these situations, the defendant must go through and show that the plaintiff was aware of the risks and assumed the risks. For the purposes of s.54 an obvious risk to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in that position – this is set out in s.53 , which also provides some examples of when a risk will be obvious: - when the risk is patent or a matter of public knowledge ( s.53(2) ) - it does not have to be likely to occur to be obvious ( s.52(3) ) nor does it have to be prominent, conspicuous or physically observable ( s.52(4) ). - It is not an obvious risk if it arises because of a failure on the part of a person to properly operate, maintain, replace, prepare, or care for a thing, unless the failure itself is an obvious risk ( s.52(5) ).
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