In a recent Melbourne case (June 2024) a passenger climbed into the back seat of a Holden Rodeo ute and after only a few minutes the driver lost control and hit a tree and the passenger was seriously injured. He made a claim for compensation. The insurance company rejected the claim and said that the day before the accident the passenger had been in the ute with the driver when the driver started doing burnouts, fishtailing, driving over rough ground, and generally thrashing the vehicle. At the same time it was pretty obvious to everyone concerned that the vehicle was in terrible condition. The insurance company argued that by going back the next day and by getting into the back of the ute that the passenger should have known what could happen, should not have got into the ute, and could have avoided getting hurt.
The usual principle in car accident compensation claims is that you can claim compensation if you are injured in a car accident as long as you can prove that the accident was caused by the driver’s negligent driving. In this case interestingly ‘negligence’ was not in dispute: the insurance company agreed that their driver was negligent. But the insurance company argued that the passenger should not be paid compensation because the passenger had climbed into the ute knowing that the driver was going to do burnouts, do fishtails, skidding, and generally trash the ute and then dump it.
The Volenti defence.
The insurance company argued that the passenger knew all along that the driver intended to drive recklessly and so he couldn’t complain when there was an accident.
But the Passenger argued that he had no idea about what was to happen, that it was never the plan to lose control and hit a tree. He said that he had only been in the ute a couple of minutes so how could he ever have known.
The insurance company relied on evidence about what they had been doing the day before and by going back the next day and getting into the ute it was pretty obvious to everyone what they intended to do.
So what did the Court make of this?
The Court said that if an insurance company wants to get away with not paying compensation then it is the insurance companies job to persuade the Court that the passenger:
- Knew that he was taking on a lot of risk by getting into the ute;
- Was pretty clear about what driver was about to do;
- Freely and voluntarily got into the ute;
- Had full knowledge of the risk and the extent of the risk;
- Accepted the risk voluntarily.
The Court listened to the evidence of the driver and the passenger and the other witnesses and said that the passenger knew that the driver was going to drive recklessly and so couldn’t complain when there was an accident. The passenger lost his claim for compensation.
Lessons.
As a general proposition passengers in vehicle have a very good chance of winning their claims as long as they can prove that the driver did something wrong which caused the accident. But, in a very small number of claims, if a passenger knows that the driver is about to drive negligently, or, knows that there was something badly wrong with the car, and yet you still freely got into the car knowing full well what could happen, then you may lose your claim for compensation. But it is the insurance companies job to prove that the passenger knew all of those things. Therefore if you have been injured in a car accident, and the insurance company has rejected your claim, don’t automatically give up on your claim. If your claim has been rejected get legal advice. You may have a very arguable claim.
