John James William Booth v Simon White

Whether a passenger is contributorily negligent in accepting a lift from a driver who has consumed alcohol is a question of fact and degree. The inquiry is whether, in the circumstances, a reasonable person would have foreseen a material risk to the passenger’s safety. The law does not impose a general duty to interrogate the driver about the precise amount of alcohol consumed. The court must assess the evidence as a whole, including the driver’s apparent condition, known drinking history and surrounding circumstances. On appeal, a fact-sensitive decision should be disturbed only where the judge was wrong, misdirected himself in law or failed to use the advantages of seeing the witnesses.

The claimant was seriously injured when he accepted a lift from the defendant, who subsequently lost control of his car. The defendant admitted primary liability but alleged that the claimant was contributorily negligent because he knew, or ought to have known, that the defendant had been drinking.

At Norwich County Court, Judge Curl rejected the allegation and entered judgment on the basis of 100 per cent liability. The defendant appealed, arguing that the claimant should have asked the defendant how much alcohol he had consumed before entering the car. The central issue was whether reasonable care required such an enquiry in the circumstances.

Appeal dismissed with costs. Lord Justice Brooke delivered the judgment, with Lord Justice Latham and the President agreeing.

1. The governing principles were stated in Owens v Brimmell (1977) 1 QB 859. A passenger may be contributorily negligent where he knows that the driver has consumed alcohol in an amount likely to impair driving to a dangerous degree. The issue is one of fact and degree, to be determined in the circumstances of the particular case. The general standard is carelessness in looking after one’s own safety, as described in Froom v Butcher (1976) QB 286, 291. The burden of proving contributory negligence rests on the defendant: Malone v Rowan [1984] 3 All ER 402.
2. The claimant could not rely on his own drunkenness to determine the standard of care. The proper approach was to consider what a reasonable person in his position would have done. Judge Curl was entitled to assess the defendant’s apparent condition, his drinking history, the evidence of Mrs Booth, the circumstances of the journey and the breathalyser reading. A reading nearly twice the permitted limit did not necessarily mean that the defendant had appeared obviously incapable of driving safely.
3. Brignall v Kelly (CAT 17th May 1994) illustrated that the absence of observable signs of intoxication could be relevant. The court had rejected the proposition that a passenger who observed only limited drinking and no sign of intoxication must interrogate the driver about the precise quantity consumed. The facts of that case were different, and the evidence recognised variation in the effects of alcohol.
4. The appellant’s proposed rule would move the law from assessing whether the driver was safe to drive to imposing a specific duty of interrogation. The Court of Appeal rejected that development. The law required an assessment of the driver’s safety, not a mandatory question about how much he had drunk.
5. This was predominantly a question of fact for the trial judge. The Court of Appeal should interfere only if the judge was wrong, misdirected himself on the law or failed to take proper advantage of seeing the witnesses. The fact that the appellate court might have reached a different conclusion was insufficient. Judge Curl had not erred, so the appeal was dismissed with costs, subject to public funding and detailed assessment.

• Court of Appeal (Civil Division): Dismissed the defendant’s appeal with costs.
• Norwich County Court: On 25 April 2003, Judge Curl rejected contributory negligence and entered judgment for the claimant on the basis of 100 per cent liability.