Contributory negligence and drunken claimants: an update from the Court of Appeal
The Court of Appeal handed down judgment in Campbell v Advantage Insurance Co Ltd [2021] EWCA Civ 1698 on 15 November 2011. The Court of Appeal considered whether a Claimant can rely upon his own drunkenness to avoid a finding of contributory negligence where he is being driven by a drunk driver.
Factual background
The facts of this case are unfortunate. The Claimant and two of his friends went on a night out to celebrate the Claimant’s 31st birthday as well as a successful job interview. One of those friends was the Defendant’s insured.
After a night of all three men heavily drinking, the Claimant was helped into the front passenger seat of the insured’s car by the insured and his other friend. Somehow the Claimant found himself in the back seat of the car by the time that the car was started. The insured started to drive the car. A short time later, the insured drove onto the wrong side of the road and collided with a lorry at high speed.
The insured was killed in the collision. The Claimant’s head collided with the back of the driver’s seat and he sustained a catastrophic brain injury which rendered him unable to give any evidence about the night of the accident. The other friend was not in the car at the time of the collision and made witness statements relating to the events leading up to the accident, but he had killed himself before trial. There was therefore a degree of evidential uncertainty about the accident and the events leading up to it.
First instance decision
The Defendant admitted liability but contended at trial that damages should be reduced for contributory negligence given that the Claimant had allowed himself to be driven by a drunk driver.
It was held by HHJ Robinson KC, sitting in the High Court, that the Claimant ought to have appreciated that the insured had drunk too much to be fit to drive. He accordingly made a 20% deduction for contributory negligence.
One of the factual determinations made by the judge was that it was likely that the Claimant had been moved by the insured from the front passenger seat into the back of the three-door car. The Claimant had contended that the heavily intoxicated Claimant lacked capacity to consent to being moved by the insured. The judge held that the Claimant’s consumption of alcohol was not sufficient to displace the presumption of capacity under s. 1(2) of the Mental Capacity Act 2005. He further held that, if the Claimant had capacity to consent to a change of position in the car, he had capacity to consent to being driven by the insured.
Regardless of those findings, the judge held that the test to be applied when considering the Claimant’s fault for the purposes of contributory negligence deductions was an objective one, and that a reasonable person in the Claimant’s shoes would have considered that the insured’s ability to drive safely was impaired. A reasonable person would not have consented to being driven by the insured on account of the obvious danger this posed.
Questions on appeal
The Claimants challenged both the fact and extent of the contributory negligence finding on appeal.
The Court of Appeal reduced the issues on appeal to four questions:
- Was the judge’s reference to the presumption of capacity Mental Capacity Act an improper reversal of the burden of proof on contributory negligence?
- Did the judge’s findings in relation to the Claimant being moved by the insured amount to impermissible speculation in light of the evidential lacuna?
- How should the objective test for contributory negligence be applied in relation to drunken claimants?
- Was the 20% contributory negligence deduction too high in the circumstances?
Decision of the Court of Appeal
Dingemans LJ gave the lead judgment, with which Baker LJ agreed. Underhill LJ gave a short concurring judgment.
In relation to the first question, it was noted that the trial judge had only dealt with the Mental Capacity Act as the Claimant had raised the issue of capacity in their Particulars of Claim. Dingemans LJ held that the Act adds nothing to the common law position, and that a presumption of capacity did not amount to an impermissible reversal of the burden of proof in relation to contributory negligence.
In relation to the second question, it was held that the judge’s findings did not amount to impermissible speculation. The trial judge was alive to the evidential uncertainties he had to deal with, and he expressly considered multiple possibilities as to how the Claimant found himself in the back of the car. At [40] of the first instance judgment, the judge questioned whether he had moved “from the zone of reasonable inference into the hinterland of speculation. I am satisfied I have not.”.
On the third question, the Claimant relied on two authorities for the proposition that Claimant was not contributorily negligent.
First, the Claimant relied on the Australian case of McPherson v Whitfield [1995] KCA 62. This decision suggested that where a claimant gets intoxicated in circumstances “where no reasonably foreseeable specific risk to his safety should have been apparent to him” then “if, in these circumstances, while lacking relevant conscious awareness he is placed into or induced to enter into the car of an intoxicated driver he should not on that account be held responsible for a failure to take reasonable care for his own safety”. The Court of Appeal noted that this case had been disapproved of by the High Court of Australia in Joslyn v Berryman [2003] HCA 34 and that another line of authority which reiterated that drunken claimants are to be judged by the objective standards of reasonable people had been favoured.
Second, the Claimant relied on a passage from Owens v Brimnell [1977] QB 859. This was the first reported English authority to consider the issue of drunken claimants accepting lifts from drunk driver defendants. In that case, Watkins J said at 844 “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”
The Claimant tried to argue that the two scenarios in this passage were the only two bases for findings of contributory negligence against drunk claimants in drink-driving cases, and that the Claimant did not meet either of these criteria. Dingemans LJ held that Watkins J did not intend to restrict contributory negligence findings to the two merely illustrative scenarios he described. In any event the Court of Appeal held that the relevant test was an objective one. A reasonable and prudent person in the Claimant’s shoes would have appreciated that the insured had drunk too much to drive safely. Underhill LJ emphasised that the standards of the reasonable person are also the standards of a sober person. It was therefore held that a finding of contributory negligence was proper.
In relation to the fourth question, the Court of Appeal reiterated that findings of contributory negligence are highly fact-sensitive and that an appellate court should only interfere with these findings where they exceed the ambit of possible reasonable disagreement.
Discussion
The decision in Campbell serves as yet another reminder that factual determinations (even those based on inference where there is no direct evidence and highly limited indirect evidence) and determinations on apportionment of responsibility for contributory negligence will not easily be overturned on appeal.
Further, it makes clear that drunkenness will, in the vast majority of cases, not allow a claimant to avoid an adverse finding of contributory negligence. This is unsurprising from a principled and policy perspective.
On a principled level, the law must hold individuals responsible for their actions, even where those actions are taken under the influence of alcohol and would not have been taken but for the claimant’s intoxication. In terms of policy, if contributory negligence deductions were not made in cases such as Campbell then claimants could shift the cost of their irresponsible and dangerous behaviour to others. The bills for such behaviour is invariably picked up by insurers who in turn pay for claims such as this through premiums which are paid by society at large.
At [53] Underhill LJ leaves open the possibility that there might be some cases in which claimants are so intoxicated without being unconscious that their actions will not be voluntary, and therefore the claimant would not be at fault for contributory negligence purposes, but he says that “the decision where exactly to draw the line between voluntary and involuntary conduct… in a particular case is a fact-sensitive question which must, within reasonable limits, be left to the judge”.
It is unclear what those reasonable limits are, but given the strength of the principled and policy reasons mentioned above I would think that the line is very close to total unconsciousness in the contributory negligence context. Wherever that line may be, it is unlikely that such findings will be overturned on appeal except in extreme cases of error on the part of the trial judge.
The judgment can be found here.
Benedict Morillo (Pupil)
17 November 2021
