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Mike Pope

Mike Pope

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Campbell v Advantage: Appeal Dismissed

Client Alerts15/11/2021

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 [1977] 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:

  • Whether the judge had reversed the burden of proof, by finding the claimant was presumed to have capacity to make these decisions, by virtue of the Mental Capacity Act 2005
  • Whether the findings of fact were properly made
  • The correct test to apply to contributory negligence in these circumstances
  • Whether the 20% assessment should be reduced

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.

Significance

  1. This is the first Court of Appeal case to specifically endorse the objective approach in Owens v Brimmell [1977] QB 859 (see Underhill LJ at paragraph 51). Thus, there can be no doubt the test is objective, and a passenger will be judged by the standard of the reasonable man.
  2. Claimants cannot rely on their own intoxication as a reason for failing to take care for their own safety. This principle applies across the tort of negligence including EL / PL claims.
  3. Contributory negligence is a fact sensitive enquiry (paragraph 41). It is not necessary to show an agreement to be driven at the start of an evening, or the fact of an intoxicated claimant still able to process the risks, who nevertheless accepts a lift.  The only question to ask is: ‘Would a reasonable, prudent and competent man have appreciated the driver had drunk too much to drive safely?’ If the answer to that is positive then a deduction from damages should be made.
  4. It has now been clarified there is no room for subjectivity; the objective assessment applies to both the driver’s actions, and the passenger’s conduct in accepting a lift.
  5. The standard deduction is 20%, and this benchmark discount following Owens v Brimmell has been endorsed. The Court of Appeal was not required to consider whether the discount ought to have been higher which may well be appropriate in certain cases.
  6. It should be noted Underhill LJ does say there may be cases in which a claimant is so drunk / passed out there is no voluntary act. Each case must be considered on its own facts, but it would seem the level of intoxication required for that would be very significant.