Drunk Passenger’s Contributory Negligence
Damages awarded at trial to Lyum Campbell (LC), a drunk passenger who suffered catastrophic head injuries in a road traffic accident, were reduced by 20 per cent, the judge finding that he had allowed himself to be driven by DB who had obviously been drinking to excess at a nightclub.
The appeal challenged (a) that there was contributory negligence and (b) that the reduction of damages should be 20 per cent: Campbell v Advantage Insurance Company Ltd [2021] EWCA Civ 1698: Underhill VP, Baker, Dingemans LJJ
DB was killed in the accident. The judge identified the two ways in which LC could have got into the back of the car and gave clear and convincing reasons for finding that LC must have been helped by the driver into the back of the car.
Dingemans LJ said there was nothing to show any justiciable errors made by the judge in his decision making which would entitle the Court of Appeal to interfere with the findings of fact.
The issue of contributory negligence for a drunken passenger accepting a lift from a drunken driver was considered in Owens v Brimmell[1] and a reduction of 20 per cent made.
In that case Watkins J thought it more likely that the claimant had, when commencing the pub crawl, given “little if any thought to the possible consequences of it, or were recklessly indifferent to them”.
He held “this is a clear case on the facts of contributory negligence, either upon the basis that the minds of the plaintiff and the defendant, behaving recklessly, were equally befuddled by drink so as to rid them of clear thought and perception, or, as seems less likely, the plaintiff remained able to, and should have if he actually did not, foresee the risk …”
This was not to be read as a statute restricting a finding of contributory negligence only to two specific situations, and indeed the judge had emphasised the fact-sensitive nature of the inquiry.
In Booth v White[2] Brooke LJ repeated the trial judge’s proposition that the passenger “could not rely on his own drunkenness and, in determining whether he had failed to take reasonable care for his own safety, he should approach the case by assessing what a reasonable man in the plaintiff’s shoes would have done.”
The age of the claimant would be taken into account, but that did not assist the appellant because he was an adult and the judge was right to judge his actions at the relevant time by the standards of a reasonable, prudent and competent adult.
The judge was also right to make the assessment of apportionment of responsibility by using an objective standard of the reasonable, prudent and competent adult to judge both DB’s and LC’s responsibility for the injuries suffered by LC.
Neither was there anything to show that the judge’s apportionment was wrong. He rightly identified the driver as the person who should bear the substantial part of responsibility.
Underhill LJ added that the primary question in any case where contributory negligence was in issue was whether the claimant took reasonable care for his or her own safety.
It was clear that the law in this jurisdiction had come down against treating the fact that the claimant was drunk as a characteristic that could be taken into account in deciding whether he or she took reasonable care for their own safety[3].
The appeal was unanimously dismissed.
[1] [1977] QB 859
[2] [2003] EWCA Civ 1708; (2003) 147 SJLB 1367 para 10
[3] Charlesworth & Percy on Negligence, 14th ed: “The excuse of drunkenness must be disregarded when considering contributory negligence. It is no excuse for failing to take reasonable care that the person in question was unable to take proper care, as a result of voluntary intoxication. A person the worse for drink cannot demand a higher standard of care than a sober person or plead drunkenness as an excuse for not taking the same care when drunk, as would have been taken when sober.”