Contributory negligence and the drunken passenger

Tue, 16 Nov 2021

Nicholas Xydias considers the recent Court of Appeal decision in LYUM CAMPBELL ( A protected party by his father litigation friend, DONALD CAMPBELL) v ADVANTAGE INSURANCE COMPANY GROUP LIMITED [2021]EWCA Civ 1698 

Can a Claimant rely upon his own drunkenness and consequential lack of insight either to avoid a finding of contributory negligence or to reduce the apportionment of responsibility for his negligence?

The Court of Appeal was required to address this issue in the recent case of Campbell, where the point arose in the context of a tragic set of circumstances.

The facts found by the trial judge, His Honour Judge Graham Robinson QC, were as follows :-

  • The Claimant (C) and 2 friends, A and B went out to celebrate C’s birthday and C obtaining a new job. C began the night drinking on his own and met up with A at C’s father’s house where they drank together for a short period.

  • C and A then went to B’s house, with A driving them there, where B had been drinking. They picked up B and went to a nightclub, with A driving them there.

  • A, B and C entered the nightclub where they all drank very heavily in broadly equal measure.

  • After a couple of hours, C left the nightclub and was very drunk. A and B walked him back to A’s car because C could not stand on his own. They put C in the front passenger seat, C leant out the door vomited and then passed out.

  • A and B returned to the nightclub and continued to drink and an hour later returned to the car. B got into the back seat of the three-door car, with C still in the front passenger seat.

  • A could not start the car and B got out the car to see if he could obtain some jump leads from a friend in the nightclub. When B returned, the car had gone and so B got cab home.

  • The accident occurred when A drove the car onto the incorrect side of the road into an oncoming lorry at a high speed. A was killed. C was an unrestrained rear seat passenger and suffered a significant brain injury after his head collided with the driver’s seat.

  • B took his own life before the trial but had provided witness statements to each party.
  • A was found to have consumed cannabis before the accident and had also consumed more than twice the legal limit of alcohol.
  • In light of the space available to C and C’s size, C would have been awake and assisted by A in getting from the front passenger seat to the rear seat. This proved to be a crucial finding of fact by the trial judge.

The trial judge formed the view that :-

  • In response to C’s Particulars of Claim that alleged that A placed C in the rear seat “ well-knowing that C was unable to reach a capacitious or informed decision” as to whether he wised to be driven away by A, C had to be assumed to have capacity unless it was established that he lacked capacity as per section 1(2) of the Mental Health Act 2005 and even though C had consumed a considerable quantity of alcohol.
  • If C had capacity to consent to a change of position in the car, he also had capacity to being driven in the car and at this point C was aware that A had consumed so much alcohol that his ability to drive safely was impaired.
  • Even if C had been so incapacitated so as to be unable to make his own assessment of A’s fitness to drive, by adopting the necessary objective test he would have concluded that a reasonable man in C’s shoes would have assessed A’s fitness to drive and would inevitably have concluded that A’s capacity to drive safely had been impaired.
  • A finding of contributory negligence was appropriate and the assessment of contribution was 20%.

C appealed on a number of grounds including :-

  • A wrong application of the test of capacity.

  • Various findings of fact were speculative and unsustainable. D submitted on appeal that the Court should have considered other possibilities as to how C could have gotten into the rear of the car, including the possibility of being helped into the back by an unknown and unidentified group of people who happened to be walking past the car.

  • The judge had wrongly applied an objective test when assessing whether C was guilty of contributory negligence. C could not be at fault if he could not appreciate the implications of agreeing to be driven by A.

  • The assessment of contributory negligence at 20% was too high.

The appeal was dismissed on the following grounds :-

  • The test of capacity had been properly applied. The issue had been raised by C and the judge was right to state that it was for C to displace the presumption of capacity. This did not amount to an impermissible reversal of the burden of proof in relation to the issue of contributory negligence.

  • The judge’s finding of fact that C got into the back of the car with assistance was sound and based upon reasonable inferences.

  • The Court considered a number of Australian authorities, as well as the well known leading case of Owens v Brimmell (1977) QB 859 and affirmed that the tests for both breach of duty of care in negligence and for assessing whether there was any contributory negligence on the part of the Claimant are objective. The conduct of C was to be judged by the standards of a reasonable, prudent and competent adult. A reasonable, prudent and competent man in C’s position as he assisted A in moving C from the front passenger seat to the rear seat would have appreciated that A had drunk too much to drive safely.

  • Accordingly, the finding of contributory negligence was upheld. Further, the Court declined to interfere with the apportionment of contributory negligence.

  • Lord Justice Underhill further made it expressly clear that the fact that a Claimant is drunk is not a characteristic that can be taken account in deciding whether he or she took reasonable care for their own safety. A person cannot be excused for failing to take sufficient care for their own safety on the grounds of voluntary intoxication. Had A driven off immediately after putting C in the car it would have been difficult to say C had consented to being driven but in circumstances where C had woken up, sobered up to sufficiently know what was happening and got into the back of the car with assistance knowing A was about to drive off , C consented to being driven by A, C’s conduct was voluntary  and was worthy of a finding of contributory negligence.

As the Court confirmed, the decision where exactly to draw the line between voluntary and involuntary conduct and between consent and the absence of consent in a particular case is a fact-sensitive question that must, within reasonable limits, be left to the judge.

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