PROVING THINGS 180: ACCEPTING A LIFT WITH A DRUNKEN DRIVER, WHILST DRUNK: DEFENDANT FAILS TO ESTABLISH THAT FAILING TO WEAR A SEAT BELT MADE A DIFFERENCE

The judgment today of HHJ Robinson (sitting as a judge of the High Court) in Campbell v Advantage Insurance Company Ltd [2020] EWHC 2210 (QB) makes interesting reading. 1. A claimant cannot properly argue that he was too drunk himself to know that he was accepting a lift from a drunken driver; the claimant was contributory negligent on these grounds. 2 the defendant failed to establish that the fact that the claimant was not wearing a seat belt was causative of additional injuries; the claimant was not contributory negligent on these grounds.

“I am unable to find that wearing a seat belt would have made any difference in outcome such as to enable me to make any reduction in damages by reason of the failure of the Claimant to wear a seat belt. There must come a point where the wearing of a seat belt does not make any difference to outcome, and it seems to me to be likely that such point was reached in this case.”

THE CASE

The claimant was seriously injured whilst a passenger in a motor car. Primary liability was admitted. The two issues for the court were: (1) Was the claimant contributory negligent for accepting a lift with a driver who he knew, or should have known, was intoxicated? (2) Was the claimant contributory negligent in not wearing a seat belt? More particularly whether the failure to wear a seat belt made a contribution to the claimant’s injuries.

 

CONTRIBUTORY NEGLIGENCE: THE ARGUMENT THAT THE CLAIMANT WAS TOO DRUNK TO KNOW THAT HE WAS GETTING IN THE CAR WITH A DRUNKEN DRIVER

The judge was not at all attracted by the argument that the claimant did not have capacity to consent because he, himself, was too drunk to realise he was getting in the car with a drunken driver.

    1. Having regard to my findings of fact, and the applicable law, it is inevitable that I must find that I must make a finding of contributory negligence against the Claimant. I will deal with the percentage amount of that contribution later.
    2. Mr Ross sought to argue that the Claimant clearly lacked capacity to consent to anything. He relied upon a dictum of Martin Spencer J in Spearman v Royal United Bath Hospitals NHS Foundation Trust [2017] EWHC 3027. The Claimant suffered from Type 1 diabetes which had developed at about age 11. He sustained brain damage following a road traffic accident when he was in his early 20s which led to a personality change.
    3. The index event giving rise to his claim for damages from the Defendant Trust arose from the Claimant suffering a hypoglycaemic attack of such severity that he was taken to hospital by ambulance. It was thought that the attack arose from the inability of the Claimant to cook a meal for himself because his oven had broken. Whilst at the hospital the Claimant gained access to a flat roof from which he fell to the ground, sustaining serious injuries. The Judge found that the Defendant was liable. The issue of contributory negligence on the part of the Claimant then fell to be determined. The Judge found that only the fourth allegation was live: “Climbed over the safety fence surrounding the roof terrace and/or jumped from the roof terrace”.
    4. His Lordship held:
“74. In relation to the fourth allegation, in my judgment that is negatived by the Claimant’s state of mind, as I have found it to be. Whether as a result of the ongoing effects of the hypoglycaemic attack or the effects of the pre-existing brain injury or a combination of the two, the Claimant did not appreciate the danger he was in, in climbing the fence, just as he had not appreciated the position he was putting himself in when he cleaned his shotgun at Terminal 1 of Heathrow Airport. Just as a young child is not guilty of contributory negligence in running out into a road where the child is so young as not to appreciate the danger of so doing, so too where a person’s state of mind is such that, whether temporarily or permanently, they do not appreciate that they are putting themselves in danger and it cannot be said that they should have so appreciated. Otherwise, that would be to penalise a person for being ill or of unsound mind, and the law does not do that.”
  1. It seems to me that the situations which Martin Spencer J had in mind did not include self-induced intoxication. His reference to the law not penalising “a person for being ill or of unsound mind” does not in my judgment include persons who have got themselves deliberately drunk.
  2. It might be argued that the difference in approach lies in the distinction between non-feasance and mis-feasance, but at all events it seems to me to be thoroughly unattractive that a mildly drunk person might be guilty of contributory fault for making an unwise decision whereas a person who had deliberately consumed so much alcohol that they are unable to appreciate the foolishness of their decision is in a better position in law. This does not seem to me to represent the law as it applies to decisions whether to accept a lift from a drunk driver, where an element of objectivity applies.

THE SEAT BELT ARGUMENT: THE DEFENDANT FAILS TO ESTABLISH CAUSATION

The judge found that the claimant failed to wear a seat belt.  However this was a serious accident and it was not clear that wearing a seat belt would have made any difference to the severity of the claimant’s injuries. The judge found that the defendant failed to establish that wearing a seat belt in these circumstances would have made any difference.

 

  1. In my judgment it has not been established that wearing a seat belt would have sufficiently slowed the decelerative effect so that the extent of the consequences of what I find to be the inevitable DAI would have been diminished. It does not seem to me to be legitimate to extrapolate the results from relatively low speed impacts in regulatory testing to conclude that in this particular accident wearing a seat belt would have made any significant difference at all to the consequences of the head injury sustained by the Claimant. The evidence does not show that wearing a seat belt would have made a “considerable difference” such that the Claimant’s injuries would have been a “good deal less severe”, to use the words of Lord Denning MR in Froom v Butcher.
  2. I accept the submission of Mr Ross that this was a unique accident generating forces outside anyone’s experience. It has been impossible to assess factors such as the deceleration rate, or the distance from the head of the Claimant’s hypothetically seat belted body to the rear of the front passenger seat. Indeed, it was not until the trial that anyone knew the Claimant’s height, and that in itself caused the engineers to conclude that there would have been a head strike.
  3. I am unable to find that wearing a seat belt would have made any difference in outcome such as to enable me to make any reduction in damages by reason of the failure of the Claimant to wear a seat belt. There must come a point where the wearing of a seat belt does not make any difference to outcome, and it seems to me to be likely that such point was reached in this case.

THE OUTCOME

The judge found the claimant to be 20% contributory negligence, on the grounds of accepting a lift with the intoxicated driver.