Accepting a Ride From a Drunk Driver Can Lead to Contributory Negligence
01/06/2022
Contributory negligence is one of the most difficult areas of negligence law and, in a case such as the one discussed below, judicial decisions made in this area of law can seem rather harsh. In Campbell v Advantage Insurance Co Ltd [2021] EWCA Civ 1698 the Court of Appeal ruled that the Judge at first instance had not made a mistake in holding that a drunk passenger in a vehicle driven by an inebriated driver had been contributorily negligent when that vehicle was involved in a collision. This was despite the fact that the passenger suffered catastrophic brain damage in the accident.
Before looking at the case itself, it is useful to consider the definition of contributory negligence.
What is contributory negligence?
Contributory negligence provides a defence where it can be proved that the Claimant’s own negligence played a part in the damage or loss they had suffered following the negligent act or omission on the part of the Defendant. If a Claimant is found to have contributed to the damage or loss suffered then the award made by the Court will be reduced by an amount the Judge believes is just and equitable.
Background to the decision
The driver of the vehicle, M, was insured by the Respondent, Advantage Insurance, and was a friend of the passenger, referred to in this article as A. M and A had been out drinking with friends for several hours before the accident. In the early hours of the morning, A was put in the front seat of M’s car and was described as having “passed out”. A’s friends returned to the club and carried on drinking.
Before driving off, M moved A to the back seat of the vehicle. His Honour Judge Robinson sitting as a Judge of the High Court concluded that A must have been awake when this occurred. It was also concluded that A’s alcohol consumption could not have rendered him completely incapacitated and that if he was able to consent to be moved to the back seat he was also capable of agreeing to be driven by M.
Around 4.00am M crossed onto the wrong side of the road and collided with a lorry being driven in the opposite direction. It was a high-speed collision with a combined closing speed between the two vehicles of between 99 and 114 mph. M was killed instantly. A’s head collided with the back of the driver's seat causing catastrophic brain damage.
When making his decision regarding whether or not A was contributorily negligent, His Honour Judge Robinson applied an objective test. He considered that a reasonable person would have concluded that M’s ability to drive safely had been impaired through alcohol, which meant that by consenting to be driven by M, A had contributed to the negligence that resulted in his injuries.
A (through his father acting as his Litigation Friend) argued that the objective test could not be applied as he was too intoxicated to take responsibility for his actions. Therefore, His Honour Judge Robinson had erred in his conclusion.
The Court of Appeal’s decision
The Court of Appeal, when making its decision, considered the case of Owens v Brimmell [1977] Q.B. 859, [1976] 4 WLUK 82. Here, two bases for contributory negligence of a passenger were identified: an agreement to be driven later on before starting to drink with the driver or a decision by a passenger, who although having consumed alcohol was still able to process the risks, to be driven by the drunk driver. The Court noted that the observations in Owens were not to be read as limiting a finding of contributory negligence to the two aforementioned situations. The fact that a drunk passenger could be found to be contributorily negligent was also supported in part by references from other cases.
In the case before them, the Court ruled that His Honour Judge Robinson had been right to assess A’s actions at the relevant time by the standards of a reasonable, prudent, and competent adult and conclude that such an adult would have assessed that M was too drunk to drive safely. Therefore, A’s negligence, in accepting a ride from a drunk driver, contributed to his injuries.
Conclusion
This decision reaffirms that:
a) contributory negligence cases are decided on by looking at the specific facts of each case, and
b) the test of whether a person has breached a duty of care in negligence is that of an objective standard.
The cases considered by the Court of Appeal when deciding Campbell illustrate that when considering contributory negligence in situations where the driver is intoxicated or unfit to drive due to other reasons, for example, illness, a careful analysis should be undertaken to find out how the passenger ended up in the car and the condition they (the passenger) was in when they consented to be driven by the Defendant. If a passenger was unconscious when placed in the vehicle then they could not have consented to be driven by a drunk or otherwise incapable driver. If, however (as in this instance), the injured party was aware enough to make a certain decision, such as consenting to be moved from the front to the back of the car, then they will be deemed capable of concluding whether or not a driver is in a fit condition to be behind the wheel of a car.
