Contributory Negligence: The Intoxicated Passenger
Campbell (by his Litigation Friend) v Advantage Insurance Company Ltd  EWCA Civ 1698
In the recent case of Campbell v Advantage Insurance Company Ltd  EWCA Civ 1698 the Court of Appeal upheld the first instance decision that the claimant, who was a passenger in a vehicle, had capacity to decide whether to consent to being driven by a drunk driver. The Court held that the drunkenness of the claimant did not discharge him from a finding of partial responsibility (contributory negligence) in his claim for the accident which then occurred because of the driver’s intoxication.
The claimant suffered catastrophic injuries as a result of a road traffic accident in the early hours of 9 August 2016.
Before the accident, the claimant, the driver and his brother had all been out at a club. The evidence was that they drank around two bottles of champagne and 20 shots between them whilst they were in the club. At around 1 to 2am, the claimant was asked to leave the nightclub by the bouncers because he was very drunk. His two friends walked him back to the car and put him in the front passenger seat where he fell asleep. The two friends, (i.e. the driver and his brother) then went back into the nightclub and continued drinking. They returned to the car around an hour later to find that it would not start. The driver’s brother went to find jump leads. When he came back to where the car had been parked, around 15 to 25 minutes later, he found that the claimant and the driver had gone.
The car was then involved in a collision when it veered onto the wrong side of the road and collided with a lorry being driven in the opposite direction. At the time of the accident the claimant was an unrestrained rear seat passenger. He sustained a catastrophic brain injury and the driver sadly died of his injuries.
The claimant was unable to give evidence due to the severity of his injuries. The only remaining witness was the driver’s brother, but tragically he killed himself before the trial. However, he had given witness statements to both parties.
First instance judgment
At the first instance hearing, when considering contributory negligence, His Honour Judge (HHJ) Robinson found that the lack of a seatbelt did not have any effect on the injuries sustained and that the claimant would have suffered catastrophic injuries in any event. However, it was held that the claimant should have appreciated that the driver was unfit to drive due to the amount of alcohol he had consumed.
HHJ Robinson referred to the Mental Capacity Act (MCA) 2005 and stated that section 1(2) sets out “a person must be assumed to have capacity unless it is established that he lacks capacity.”. He found that the evidence of previous alcohol consumption by the claimant was “insufficient to displace the presumption of capacity”.
The judge decided that the claimant must have been aware of what was happening when he moved from the front passenger seat to the rear passenger seat. HJJ Robinson concluded that given the claimant’s size/height it would have been highly improbable that the driver moved the claimant without the claimant assisting. He found this was consistent with the claimant being aware that the driver was intoxicated and therefore, consenting to remaining in the car as it was driven away.
HHJ Robinson applied the objective test of the “reasonable man” and concluded that a reasonable man would have “inevitably concluded that the driver had consumed so much alcohol that his ability to drive safely was impaired”.
The claimant was held to be contributorily negligent for his injuries and his damages were reduced by 20%.
There were four matters to be considered on appeal.
1.Whether the judge had wrongly applied the test of capacity under the Mental Capacity Act 2005 and reversed the burden of proof in relation to the issue of contributory negligence
The Court of Appeal found that the Judge could not be criticised for applying the test under the Mental Capacity Act 2005. He had raised the issue because of the terms of the Particulars of Claim, in which the claimant had pleaded that he did not have capacity to consent to being driven by the driver and so could not be found to be contributorily negligent.
It was found that the Judge had only pointed “out that a person is presumed to have capacity until the contrary is proved, and that did not amount to an impermissible reversal of the burden of proof in relation to the issue of contributory negligence”.
2. Whether the judge’s findings of fact were properly made
The claimant criticised HJJ Robinson’s findings regarding how the claimant moved from the front to the rear passenger seat. The Court of Appeal found that the findings were soundly based on the known facts and reasonable inferences drawn from those facts.
3. Whether the judge wrongly applied a test of the objective reasonable, competent and prudent passenger when the claimant was too intoxicated to be held responsible for his actions
The claimant referred to McPherson v Whitfield, an Australian case, which suggests that a passenger should not be held responsible for a failure to take care of their safety if they were placed into or induced to enter the car of an intoxicated driver. Lord Justice Dingemans referred to another Australian case Morton v Knight, which applied an objective test of the reasonable man to the passenger. Both cases were considered in the Australian case of Joslyn v Berryman  HCA 34 and the Morton finding was approved.
The Court of Appeal considered Owens v Brimmell  and agreed that someone who allows themselves to be a passenger in a car driven by the driver who is unfit through alcohol is guilty of contributory negligence.
The Court of Appeal endorsed Charlesworth and Percy’s (14th Ed.) commentary that “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”.
4. Whether the Judge’s assessment of 20% contributory negligent should be reduced
The Court of Appeal found that there is nothing to show that HJJ Robinson’s apportionment in this case was incorrect. He had considered the facts carefully and there is nothing to show that his assessment was wrong.
The appeal was dismissed. It was held that the judge was entitled to find that the claimant had capacity at the relevant time, the findings of fact were properly made, the test of the “reasonable man” had been correctly applied and the 20% finding of contributory negligence was correct.
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