THE INTOXICATED PASSENGER AND ESTABLISHING CONTRIBUTORY NEGLIGENCE: COURT OF APPEAL DECISION

In Campbell v Advantage Insurance Company Ltd [2021] EWCA Civ 1698 the Court of Appeal upheld a finding that a claimant could be contributory negligent even when drunk.  However it is important that the facts of this case are looked at closely. There may be cases where a person is so drunk that they do not appreciate, at all, that they are being placed in a vehicle.

“In my view it is clear that the law in this jurisdiction has 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.”

WEBINAR ON CONTRIBUTORY NEGLIGENCE: 9th DECEMBER 2021

This case will be looked at in detail in a webinar “Contributory Negligence Recent Cases and their Practice Relevance” to be given on the 9th December 2021, booking details are available here. 

THE CASE

The judgment at first instance was looked at in an earlier post. 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.  The judge found that the failure to wear a seat belt made no difference to the claimant’s injuries and no deduction was made for that. However a deduction of 20% was made because the claimant got into the car with a drunken driver.  The trial judge rejected the argument that contributory negligence could not apply because the claimant himself had been too intoxicated to appreciate the risks he was running.

THE REJECTION OF THE CLAIMANT’S APPEAL BY THE COURT OF APPEAL

The Court of Appeal dismissed the Claimant’s appeal.  Lord Justice Underhill observed.

1. 1. The primary question in any case where contributory negligence is in issue is whether the claimant took reasonable care for his or her own safety: that is too trite a proposition to require authority, but for a recent statement see Gul v McDonagh [2021] EWCA Civ 1503, per Nugee LJ at para. 31. In one sense, that is obviously an objective question, but the courts have recognised that in answering it it is necessary to take into account at least some characteristics of the individual claimant: age is an obvious example, but there may be others (see the discussion at paras. 3-83-84 of Clerk & Lindsell on Torts, 23^rd ed).

1. 1. In my view it is clear that the law in this jurisdiction has 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. Para. 4-53 of Charlesworth & Percy on Negligence, 14^th ed, reads:

“The excuse of drunkenness must be disregarded when considering contributory negligence. It is no excuse for failing to take reasonable care that the person in question was unable to take proper care, as a result of voluntary intoxication. 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.”

No authority of this Court is in fact cited for that proposition, but it seems to me plainly right in principle. I see no answer to the simple example given by McHugh J at para. 39 of his judgment in Joslyn v Berryman (referred to by Dingemans LJ at para. 38 above):

“If an intoxicated pedestrian falls down a manhole that a sober person would have seen and avoided, it seems impossible to hold that the pedestrian was not guilty of contributory negligence because the pedestrian’s condition prevented him or her from seeing the danger.”

1. 1. That principle must apply to the case of a person who is injured as a result of agreeing to be driven by a drunken driver. The best-known example in this jurisdiction is Owens v Brimmell, which Dingemans LJ summarises at para. 39 above. In the final passage which he quotes Watkins J states explicitly that the plaintiff was guilty of contributory negligence where he failed to appreciate the risk of being driven by the defendant because he was so “befuddled by drink … as to rid [him] of clear thought and perception”: I agree with Dingemans LJ that that principle goes wider than the case where two people go on a pub crawl in the understanding that one of them will drive the other home. There is no decision of this Court explicitly endorsing Owens v Brimmell; but, as Dingemans LJ notes (see para. 42 above), in Booth v White Brooke LJ apparently accepted the proposition that the claimant “could not rely on his own drunkenness” if he failed to appreciate a risk that he would have appreciated if sober.

1. 1. In my view, therefore, the law applicable in this country is in conformity with that stated by McHugh J in Joslyn v Berryman. I would quote para. 38 of his judgment in full:

“Hence, the issue is not whether a reasonable person in the intoxicated passenger’s condition – if there could be such a person – would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person – a sober person – would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver’s intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication.”

1. 1. It is important, however, to note McHugh J’s reference to the passenger being, although intoxicated, “sober enough to enter the car voluntarily”. A person who while unconscious through drink is put by friends or others into a car which is then driven by an (evidently) drunken driver will not be guilty of contributory negligence, because they have done no voluntary act: to put it another way, they will not have consented to being driven at all. However foolish it may be to drink yourself into a stupor, you cannot be treated as having consented to things that are then done to you while in that state. That is of course an extreme case: a person who is not totally unconscious may nevertheless be in a state where they are incapable of making a decision. The decision where exactly to draw the line between voluntary and involuntary conduct – between consent (even if drunken consent) and no-consent – in a particular case is a fact-sensitive question which must, within reasonable limits, be left to the judge.

1. 1. Against that background, I turn to the facts of this case. If Dean Brown had driven off immediately after he and his brother first took the Claimant back to the car (see para. 13 of Dingemans LJ’s judgment) I might, on the available evidence, have found it difficult to say that he had consented to being driven. He was too drunk to stand, and as soon as he had been put into the car and been sick, he “passed out”. But that was not the basis on which the Judge decided the case. He focused on the position an hour or so later when Dean and Aaron came back to the car and Aaron then went back to the club to look for jump-leads (see para. 14). As Dingemans LJ summarises at paras. 16-17 above, the Judge found that during that period, and before the car was driven away, the Claimant moved from the front seat to the back. He found that that was probably Dean Brown’s idea rather than the Claimant’s and that the Claimant had not sobered up sufficiently to make the move without assistance; but, crucially, he found that he nevertheless had been woken and understood what was happening – see para. 19, summarising the careful reasoning at para. 57 of the judgment. The Judge continued, at para. 58:

“If the Claimant had capacity to consent to a change of position in the car, then in my judgment he also had capacity to consent to being driven in the car. Having found that the Claimant must have known he was moving from the front of the car to the back of the car, I also find that this move is only consistent with the Claimant consenting to remaining in the car whilst it was driven away. If his intention had been to leave the car, before it was driven off, he would surely not have got into the back of it.”

1. 1. The Judge thus explicitly found that the Claimant had sobered up sufficiently to know what was going on and to get into the back of the car (albeit with assistance) preparatory to it being driven away by Dean Brown: he thus consented to being driven by Dean, and his conduct was voluntary. He also found that it would have been evident to a sober person that Dean Brown was too drunk to drive safely: see para. 21 above. That being so, taking the objective approach described above, as he did, the Claimant was contributorily negligent.

1. I can see nothing wrong in those findings or the Judge’s analysis based on them. As regards “issue 1”, I would not myself have found it necessary, or indeed particularly useful, to refer to the provisions of the Mental Capacity Act 2005, but Dingemans LJ explains at para. 28 why the Judge did so, and I agree with him that it did not involve him in any error of law. As regards “issue 2”, I agree with Dingemans LJ (see paras. 31-33) that the Judge’s findings of fact were open to him on the evidence: of course they were based on inference, but the inferences that he based on the Claimant’s move from the front seat to the back were reasonable. As for “issue (3)”, I have already summarised my understanding of the law, and it is clearly consistent with the approach taken by the Judge.