Campbell v Advantage Ins

Contributory negligence is assessed by asking whether the claimant took the care for their own safety expected of a reasonable, prudent and competent person. An adult cannot rely on voluntary intoxication to reduce that standard or excuse a failure to recognise an evident risk.

An intoxicated passenger who voluntarily accepts a lift is therefore contributorily negligent if a sober, reasonable person would have appreciated that the driver’s capacity was impaired. A passenger who is unconscious or otherwise incapable of deciding whether to travel has performed no voluntary act and has not consented. The boundary between drunken consent and an absence of consent is a fact-sensitive question for the trial judge.

The claimant suffered catastrophic brain injury while travelling as an unrestrained rear-seat passenger in a car driven by a friend whose blood-alcohol concentration exceeded twice the legal limit. The defendant insurer admitted primary liability but alleged contributory negligence because the claimant had travelled with a driver whom he should have known was unfit through drink.

The High Court, in [2020] EWHC 2210 (QB), inferred that the claimant had awakened and assisted the driver in moving him to the rear seat before the journey. It found that he had voluntarily consented to travel and reduced his damages by 20%.

The central issues on appeal were whether the judge had misused the Mental Capacity Act 2005, made speculative factual findings, wrongly applied an objective standard to an intoxicated passenger, or imposed an excessive reduction.

1. Appeal dismissed. The trial judge had been entitled to find the claimant contributorily negligent and to reduce his damages by 20%. Dingemans LJ gave the principal judgment. Baker and Underhill LJJ agreed.

2. Contributory negligence is assessed objectively. An adult claimant’s voluntary intoxication does not lower the standard of care expected for their own safety. The relevant question was whether a reasonable, prudent and competent sober adult in the claimant’s position would have appreciated that the driver had drunk too much to drive safely. The objective approach was consistent with Owens v Brimmell [1977] QB 859, Booth v White [2003] EWCA Civ 1708 and Joslyn v Berryman [2003] HCA 34.

3. Underhill LJ emphasised that the passenger must nevertheless have acted voluntarily. A person placed in a car while unconscious through drink does not consent to being driven and is not contributorily negligent merely because becoming insensible was foolish. A person who is conscious but severely intoxicated may also be incapable of deciding. The boundary between consent, including drunken consent, and an absence of consent is fact-sensitive and is primarily for the trial judge.

4. The judge reasonably inferred that the claimant had awakened, understood that he was being moved, assisted in moving from the front to the rear seat and consented to remain while the driver drove away. A sober person in that position would have recognised the driver’s impairment. The evidential gaps did not make those findings speculative or disclose an appealable factual error.

5. The judge had addressed capacity because the pleaded case raised it. Applying the presumption in section 1(2) of the Mental Capacity Act 2005 did not reverse the insurer’s burden of proving contributory negligence. Underhill LJ considered reference to the Act unnecessary but agreed that it caused no error of law.

6. Apportionment under section 1(1) of the Law Reform (Contributory Negligence) Act 1945 is primarily for the trial judge. An appellate court may interfere only where the assessment falls outside the ambit of reasonable disagreement and is wrong. The judge had properly placed the substantial share of responsibility on the driver, and the 20% reduction was within the permissible range.

1. Court of Appeal (Civil Division): The court dismissed the appeal in [2021] EWCA Civ 1698 and upheld the finding of contributory negligence and the 20% reduction in damages.
2. High Court, Queen’s Bench Division: In [2020] EWHC 2210 (QB), HHJ Graham Robinson QC found that the claimant had voluntarily travelled with a driver whom he should have appreciated was impaired by alcohol. Damages were reduced by 20% for contributory negligence.