Exceptions cases where a passenger gets a lift with a

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Exceptions Cases where a passenger gets a lift with a drunk driver is an exception, if the passenger knows the driver is drunk – voluntary assumption of risk will be used as a complete defence here. Cases where passenger ought to know driver was drunk but did not know, is where CN will apply Insurance Commissioner v Joyce (1948) 77 CLR 39 (CB 417) Rule: If a passenger accepts a lift with a driver and ought to know a driver was too drunk to drive, then the passenger will be CN if there is an accident. When ought a passenger know? 33
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Banovic v Perkovic (1982) 30 SASR 34 (CB 421) Case where a passenger was injured after a car hit a pole. Passenger sued the driver for negligence. Driver argued CN. Trial judge found both parties where drunk at the time. Driver was not showing observable signs of intoxication. King CJ: Sought to confine IC v J to cases where there is joint drinking spree. If P drinks so much that they cannot determine how drunk the driver is then they will be CN. In other cases the P is not required to stay sober to determine. The driver is obligated to stay sober. If the driver indicates that they intend to get drunk then P will be CN. In this case the P had no reason to think the D would get drunk therefore P was not CN. This case distinguishes between designated drivers and joint drinking sprees. It is unclear whether Banovic is still good law due to: Joslyn v Berryman (2003) 198 ALR 137 P and D had been out drinking the previous night. P was then driving early the next morning the D was a passenger. P noticed D was falling asleep at the wheel .D insisted that P pull over and let D drive. P sues D and D relies on CN. D argues that P should have know that D was drunk and that the vehicle has a defective speedometer and a tendency to roll over. McHew said the P was CN. He said that a RP would know that by becoming a passenger he was exposing himself to a risk of injury. Court said that the CN is an objective test. The test in Banovic was wrong in so far as it is a reasonable person that is ought to know. The test is also what a reasonable sober person knows. The court also said this was joint drinking spree case. In the designated driver scenario if the D gets too drunk to know that the driver is drunk, and the reasonable sober person test applies, then the D will be CN. Underage plaintiffs What care are under age children required to take?. McHale v Watson (1966) 115 CLR 199 (CB 252) The standard of care required is that of a reasonable child of the same age. – Related to breach. Kelly v Bega Valley County Council (unreported, 13 Sept 1982, Court of Appeal (NSW) (CB 404) P ( Kelly) 11 year old boy. Received a severe electric shock when he cam into contact with a high voltage terminal constructed by the D. Jury trial : D was negligent, but P was contributorily negligent.
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