Campbell v Advantage Insurance Company Ltd

Contributory negligence may arise where a passenger knowingly accepts a lift from a driver whose alcohol consumption has impaired the ability to drive safely. The passenger’s own intoxication does not automatically remove responsibility. Capacity is assessed by reference to the particular decision and the statutory functional test.

For seat-belt claims, the court must determine whether wearing a belt would have made a material difference to the injuries. The usual percentage reductions in Froom v Butcher are guidance, not automatic rules. Where the evidence cannot establish that a belt would have reduced the injury, no reduction is made.

The claimant suffered catastrophic brain injuries when a car, driven by Dean Brown, collided head-on with an articulated lorry. Primary liability was admitted. The defendant alleged contributory negligence on two grounds: knowingly accepting a lift from an intoxicated driver and failing to wear a seat belt.

The claimant had been drinking heavily and was moved from the front passenger seat to the rear before the car was driven away. The central issues were whether he had capacity to consent to being driven by Dean and to decide whether to wear a seat belt, whether he knew Dean was unfit to drive, and whether the absence of a seat belt caused or materially increased his injuries.

1. Capacity and acceptance of the lift. Under sections 1 to 3 of the Mental Capacity Act 2005, capacity was presumed and had to be assessed in relation to the particular decision and time. The claimant’s drunkenness did not itself establish incapacity. He understood the simple process of moving seats, retained the relevant information, participated in the move and communicated assent through his conduct.
2. The move to the rear seat was consistent only with an intention to remain in the car while it was driven. The claimant knew that Dean owned the car and was likely to drive it. He had been with Dean while Dean consumed a substantial amount of alcohol and was aware that Dean’s ability to drive safely was impaired. The defendant therefore established contributory negligence under the principle in Owens v Brimmell.
3. The reasoning in Spearman v Royal United Bath Hospitals NHS Foundation Trust concerned illness or unsoundness of mind and did not govern self-induced intoxication. The court considered it unattractive, and inconsistent with the objective approach in Booth v White, for extreme self-induced intoxication to place a passenger in a better legal position than lesser intoxication.
4. Seat belt. The claimant had capacity to decide whether to wear a belt and chose not to do so. The adult-passenger principle in Froom v Butcher, as explained in Madden v Quirke, meant that the primary responsibility lay with the passenger, rather than imposing an unnecessary paternalistic duty on the driver.
5. The evidence established that a belted claimant would still have suffered a head strike in the collision. The collision was an exceptional outlier, involving forces beyond regulatory testing and ordinary experience. The evidence showed only that a belt might have reduced the severity of the injury, not that it probably would have done so or made a considerable difference. No reduction in damages was therefore made for failure to wear a seat belt.
6. Comparing Owens v Brimmell, Meah v McCreamer and Stinton v Stinton and The Motor Insurer’s Bureau, the appropriate reduction for the claimant’s contributory negligence was 20 per cent.