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Whether An Intoxicated Passenger Can Rely On Their Own Intoxication To Avoid Or Reduce A Finding of Contributory Negligence - Nicholas Dobbs, Temple Garden Chambers

23/12/21. In Campbell v Advantage Insurance Company Ltd [2021] EWCA Civ 1698, the Court of Appeal considered whether a claimant could rely on his own intoxication, and consequential lack of insight, either to avoid a finding of contributory negligence, or to reduce the apportionment of responsibility for his contributory negligence. It was argued on behalf of the appellant, amongst other points, that the trial judge had wrongly applied an objective test (that of the reasonable, competent and prudent passenger) when assessing whether there was contributory negligence.

The Claimant had been a back seat passenger in a car being driven by the Defendant’s insured. They had been drinking at a nightclub. In the early hours of the morning, the car was being driven on the A40 when it crossed on to the wrong side of the road and collided with a lorry being driven in the opposite direction. It was a high-speed collision, and the Claimant suffered catastrophic brain damage. Tragically as well, the Defendant’s insured was killed. Liability for the Claimant’s claim for damages arising from the accident was admitted by the Defendant.

It was contended at trial that damages should be reduced for contributory negligence in part on the basis that the Claimant had allowed himself to be driven by the Defendant’s insured when he had obviously been drinking to excess. As a result of the tragic consequences of the collision and its continuing effects, there was no evidence from the Claimant or the Defendant’s insured, and no oral evidence from another passenger (not in the car at the time of the collision), so the trial judge's findings of fact were based on the known facts and inferences drawn from them.

The trial judge found that Mr Campbell should have appreciated that the Defendant’s insured had drunk too much alcohol to be fit to drive. He assessed the Claimant’s contributory negligence at 20%. The appeal challenged the judge's findings both that there was contributory negligence and that the reduction of damages should be 20 per cent. The Court of Appeal was asked to consider whether the judge had 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 Court of Appeal held that the trial judge was right to assess the Claimant’s actions at the relevant time by the standards of a reasonable, prudent and competent adult; the finding of contributory negligence was properly made. The Court referred to Owens v Brimmell [1977] QB 859, in which the passenger and driver had been on a pub crawl and had both been drinking. On the way home the driver hit a lamp post and the passenger suffered serious injuries. A reduction of 20% for contributory negligence was made. Watkins J held (at 866H):

"… there is widespread and weighty authority for the proposition that a passenger may be guilty of contributory negligence if he rides with the driver of a car whom he knows has consumed alcohol in such quantity as is likely to impair to a dangerous degree that driver's capacity to drive … so, also, may a passenger be guilty of contributory negligence if he, knowing he is going to be driven in a car by his companion later, accompanies him upon a bout of drinking which has the effect, eventually, of robbing the passenger of clear thought and perception and diminishes the driver's capacity to drive properly and carefully".

Per Underhill LJ (at [49]), the primary question in any case where contributory negligence is in issue is whether the claimant took reasonable care for their own safety. That is an objective question, and the courts have recognised that in answering it is necessary to take into account at least some characteristics of the individual, such as age. However, “the law in this jurisdiction had come down against treating the fact that the claimant is drunk as a characteristic that can be taken into account in deciding whether he or she took reasonable care for their own safety” (at [50]).

The Court acknowledged that the apportionment of responsibility in contributory negligence was a decision for the trial judge. Accordingly, there was a limited basis on which it could interfere with the trial judge's apportionment of 20%. An appellate court could interfere only if the judgment exceeded the ambit where reasonable disagreement was possible and the court below had gone wrong. However, there was nothing in the present case to show that the judge's apportionment was wrong and the appeal was dismissed.

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