Contributory Negligence and the Intoxicated Passenger

The Court of Appeal recently confirmed the earlier decision that the test for whether contributory negligence applies to a passenger when accepting a lift from a drunk driver is an objective test.

The claimant was out with friends, and they had all drunk a significant amount of alcohol. The claimant was drunk and was placed in the front seat of a car by his friends and then voluntarily assisted into the back seat. The driver of the vehicle (having taken drugs and alcohol) crashed head-on into a lorry. The claimant who was unrestrained in the back of the vehicle suffered a catastrophic brain injury.

The claimant was unable to give evidence due to his injuries and the only evidence of fact available was hearsay witness evidence. The claimant’s case was that he didn’t consent to the journey and was too drunk to appreciate the unfit state of the driver.

When the case went to trial, a deduction of 20% was made by the judge because the claimant had got into the car with a drunk driver. The judge rejected the argument that such “contributory negligence” could not apply because the claimant himself had been too intoxicated to appreciate the risk that he was taking.

The Court of Appeal upheld this finding and dismissed the claimant’s appeal. Lord Justice Underhill commented that the excuse of drunkenness must be disregarded when considering contributory negligence. In his opinion, drunkenness was no excuse for failing to take reasonable care, and a person the worse for drink could not 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.

The Court of Appeal drew on the analogy with an intoxicated pedestrian falling down a manhole. If a sober person would have seen and avoided the manhole, it seemed impossible to the court to hold that the pedestrian who fell down a manhole was not guilty of contributory negligence because the pedestrian’s condition prevented him or her from seeing the danger. The same principle must apply to a person injured as the result of agreeing to be driven by a drunk driver.

The Court of Appeal said that a claimant who was in fact unconscious through alcohol and placed in a motorcar could not consent to the journey and would not be guilty of contributory negligence. They went further to say that in extreme cases it might be possible to argue that a claimant who is not totally unconscious may be unable to validly make a decision, but this would turn on the facts of each case. Here the fact that the claimant had voluntarily got into the back seat, albeit with assistance, demonstrated that he could make a decision about being driven.

The principles applied here can be found throughout caselaw in relation to the effect of intoxication on contributory negligence. The fact that the claimant was drunk may explain why he failed to take reasonable care for his safety and thereby sustained injury, but it would not absolve the claimant from taking reasonable care for his own safety. Unless the passenger was so intoxicated as to be unconscious or almost unconscious and unable to consent to the risk, if he did not take reasonable care because he was intoxicated, a deduction for contributory negligence would be applied.