Campbell v Advantage Insurance Company [2021] EWCA Civ 1698

As the Christmas party season approaches the Court of Appeal in the decision of Campbell v Advantage Insurance Company [2021] EWCA Civ 1698 gives some helpful guidance on the question of whether an intoxicated passenger who is driven by a driver who is also intoxicated is contributorily negligent.

The Claimant went out with two friends to celebrate his 31st birthday and a successful interview for a job. They went to a nightclub in Cheltenham at about 11.30 pm where they had at least two bottles of champagne and at least 20 shots to drink between them.

By about 1 or 2 am the following morning the Claimant was very drunk. He was taken by his two friends to the three-door Seat Ibiza car that they had travelled to the nightclub in. The Claimant was put in the front passenger seat where he passed out before the door was closed. The two friends went back to the nightclub and continued drinking. After an hour they went back to the car where the Claimant was still in the front passenger seat. The car would not start. One of the friends went back to the nightclub to see if he could borrow some jump leads. When he returned the car had gone.

About nine miles away from the nightclub the car was travelling on the A40 in the direction of Oxford when it went onto the wrong side of the road and collided with an oncoming lorry.

When the collision occurred the Claimant was in the back seat of the car. His head hit the back of the driver’s seat so that he suffered catastrophic brain damage. The driver was killed. A toxicology report found that the driver had a 176 mg/dl concentration of alcohol in his blood when the legal limit is 80 mg/dl.

The first instance judge found that the driver had helped the Claimant move to the back seat of the car so that the other friend could get into the front passenger seat when he returned from the nightclub. Importantly, he found that the Claimant must have been awake as he was being moved because it would not have been possible for the driver to move him into the back of the car without his assistance. He found that if the Claimant had capacity to consent to a change of position in the car then he also had capacity to consent to being driven in the car. The Claimant was aware that the driver had consumed so much alcohol that his ability to drive safely was impaired. He made a finding of contributory negligence of 20% against the Claimant.

The Claimant appealed this finding of contributory negligence.

The Court of Appeal emphasised that the test of whether a person has breached a duty of care in negligence is an objective standard. The first instance judge was right to judge the Claimant’s actions at the relevant time by the standards of a reasonable, prudent and competent adult. This conclusion accorded with principle and previous cases. A reasonable, prudent and competent man in the Claimant’s position as he helped the driver move him from the front passenger seat to the back seat would have appreciated that the driver had drunk too much to drive safely. The finding of contributory negligence was therefore properly made and a finding of 20% was not wrong. The driver should bear the substantial part of responsibility.

Practice Point

Care should be taken to find out how the passenger ended up in the car being driven by a drunken driver and the condition they were in when this happened.

Lord Justice Underhill gave the example of a passenger who while unconscious through drink is put by friends or others into a car which is then driven by an obviously drunken driver. He said that that person would not be guilty of contributory negligence because they had not consented to being driven at all. He said however foolish it may be to drink yourself into a stupor you cannot be treated as having consented to things that are done to you while in that state. He accepted that this was an extreme case. He said that a person who is not totally unconscious may nevertheless be in a state where they are incapable of making a decision. Where to draw the line between voluntary and involuntary conduct in a particular case is a fact sensitive question for the judge.

Consequently, Lord Justice Underhill said that if the driver had driven off immediately after the Claimant had been put in the car then he might have found it difficult to say that the Claimant had consented to being driven. The Claimant had been too drunk to stand and had passed out. That was not the factual basis on which the judge had decided the case however.

17th Nov 2021

Adrian Higgins

Call 1990