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Contributory negligence: getting into a drunk driver’s car

The defence of “I was too drunk to know what I was doing” is unlikely to succeed unless the claimant was unconscious.

On 15 November 2021 the Court of Appeal handed down judgment in the case of Campbell v Advantage [2021] EWCA Civ 1698, which is essential reading for all motor insurers considering the issue of contributory negligence for a claimant getting into a car with a drunk driver.

We finally have confirmation from the Court of Appeal that Owens v Brimmell [1977] QB 859 is good law, and importantly, that it is an objective and not a subjective test of whether a reasonable, prudent, and competent adult would have considered that the driver had drunk too much to drive safely.

In Campbell, the claimant had been out drinking with his friends, including Mr Brown, and had drunk so much as to be ejected from the nightclub by the bouncers. His friends then put him into the car, which would eventually be driven by Advantage’s insured Mr Brown. The claimant was so drunk that he was sick on entering the front seat of the car and then passed out. His friends then left him there and returned to the nightclub for an hour. On their return, the claimant was moved into the rear seat from the front passenger seat. The judge found that the claimant must have been awake enough to assist in some way given his size. Critically this meant that he was not unconscious so as not to be able to consent to be driven. Unfortunately, Mr Brown then drove off and caused a high-speed head-on collision where he and another passenger died, and the claimant suffered a catastrophic brain injury. Primary liability was admitted by Advantage and contributory negligence was alleged.

At first instance, the High Court found that the claimant was 20% contributorily negligent for being driven by a drunk driver. The claimant appealed and the Court of Appeal dismissed the appeal, confirming Owens and the objective nature of the test.

It is worth reading the 13-page judgment in full, but the critical takeaway is this: unless the claimant was unconscious so as not to be in a position to consent to be driven at all, then getting into a vehicle with a driver whom the claimant knew to have been drinking is likely to result in a finding of contributory negligence if a reasonably prudent, sober adult would have appreciated the risk.

The defence of “I was too drunk to know what I was doing” is unlikely to succeed unless the claimant was unconscious. This means that, if the claimant had got so drunk as to pass out, but was still physically capable of getting him or herself into the vehicle, then this is unlikely to be a defence to a finding of contributory negligence. It also means that the claimant does not have to know exactly how many drinks the driver had drunk, rather the question is what a reasonably prudent sober adult would have thought in those circumstances.

The level of contributory negligence will depend on the facts. The Court of Appeal refused to comment on the 20% reduction in Campbell, save to say that the trial judge’s apportionment was not wrong. The question still to be answered is how high could the contributory negligence be? One might consider 20% to be a modest amount for what could be a very serious error of judgment and we are likely to see higher percentages argued for in the future, subject of course to the weighing up of blameworthiness and causative potency. Insurers should now have more confidence to run this argument, even where the evidence is limited. Hopefully, we will not have to wait another 40 years to find out.

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