The facts of this case were outlined in a client alert dated 19/08/2020, which can be found here. This case was handled by Mike Pope and Kirsty Wareing of Keoghs, and Christopher Kennedy QC and Matthew Snarr from 9 St John Street.
The claimant was provided with leave to appeal to the Court of Appeal. That appeal has now been determined, and the claimant was unsuccessful.
The appeal raised a very important point of law: what is the correct test to apply when determining contributory negligence, so far as it relates to a passenger who has accepted a lift from an unfit driver? The claimant’s case was he was so drunk he was unable to appreciate the degree of alcoholic impairment to the defendant driver.
This aspect of the law has been well settled since Owens v Brimmell  QB 859; had the appeal been successful, there would have been far-reaching consequences for the insurance industry.
The first instance judgment of HHJ Robinson is dated 14/08/2020. HHJ Robinson made no deduction for the claimant’s failure to wear a seatbelt; it was such a high energy collision the seatbelt would have been unlikely to have made any difference. However, there was a 20% deduction due to the fact the parties had been drinking together, and the claimant should have appreciated the driver was unfit.
The claimant’s appeal challenged: (i) the finding of contributory negligence, and (ii) the percentage reduction which was applied.
At this point it is necessary to consider the facts in finer detail. After the claimant, the defendant driver, and the driver’s brother had been drinking in each other’s company on the evening of 08/08/16, the claimant was assisted to the driver’s parked vehicle, following unwanted attention from the bouncers in a nightclub in Cheltenham, where they had been celebrating. The claimant was assisted into the front passenger seat, but leaned out to vomit. The driver and his brother then returned to the nightclub for an hour. On returning to the car the claimant was still in the front passenger seat. It is important to note the vehicle was a three door Seat Ibiza. The brother got into the rear behind the driver, but got out and went back to the club to find jump leads, when the car would not start. When he returned approximately 20 minutes later the car had gone. After the accident it was established the claimant had been an unrestrained passenger in the rear. Toxicology revealed the deceased driver had excessive amounts of alcohol and cannabis in his system.
The judge at first instance found it was likely to have been the driver’s idea for the claimant to move to the rear, so that his brother could get into the front passenger seat once the vehicle was started. Crucially, the judge also found the claimant must have been awake when the driver assisted him into the rear, since the driver was heavily intoxicated and the claimant stood just under 6 feet, weighing 11 stones 11 pounds. The judge found that if the claimant was able to consent to a change of position in the car, he was able to consent to being driven away. Alternatively, if he was wrong about the claimant’s actual knowledge, then an objective test was applicable, and a 20% reduction appropriate, since a reasonable man would have concluded the driver was clearly unfit.
The appeal considered four issues:
The claimant sought to criticise the trial judge for addressing capacity by reference to the 2005 Act, but the Court of Appeal disagreed since the issue of capacity had been raised in the Particulars; the presumption of capacity under the Act did not operate to reverse the burden of proof.
The findings of fact, in particular regarding how the claimant got into the back of the car, were properly made. It would not have been a simple exercise for the claimant in his state to move from the front to the rear of a three door car; he must have been assisted by the driver, and must have cooperated due to his size and weight.
The most significant issue to be determined was the correct test to apply, and the Court of Appeal was invited to consider cases from the Commonwealth, in particular Australia. The claimant contended that following Owens there were only two bases to find contributory negligence, either (i) there was an agreement to be driven at the start of the night, before the passenger then started to drink with the driver, or (ii) the intoxicated passenger was still able to process the risks, but nevertheless accepted a lift. This was rejected. It was accepted these were the two bases discussed in Owens, but the judgment in that case could not be read as restricting contributory negligence to these two specific situations. The Court of Appeal held an objective test accorded with both principle and previous cases. Since any reasonable man would have concluded the driver was unfit, the finding of contributory negligence was properly made. It was consistent to use an objective standard to judge both the negligence of the driver, and the contributory negligence of his passenger (paragraph 36 of the Court of Appeal judgment).
The judge’s assessment of contribution at 20% was appropriate, and an appellate court would be reluctant to interfere unless the assessment was clearly wrong.
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