Contributory Negligence of a Passenger – Seatbelts and Alcohol
By Andy MacDonald, Digby Brown LLP
November 12 2020
United Kingdom
The recent case of Campbell v Advantage Insurance Co Ltd [2020] EWHC 2210 (QB) has highlighted and discussed these two key areas where contributory negligence may apply against passengers who have been injured in a road traffic collision.
In Campbell, a rear seat passenger was seriously injured following a high speed head on collision. The claimant had been driven to a nightclub by the defendant, whose brother was also in the vehicle. All three had been drinking prior and continued to drink at the nightclub together. After a time, the claimant required to be assisted out of the club and was placed in the defendant’s front passenger seat. His seatbelt was fastened by the defendant’s brother, he vomited out of the car door, and then he fell asleep. The defendant and his brother went back into the club. They continued drinking for a further hour, at which point they returned to the claimant. He was still asleep in the car. The brother went back into the club and when he returned, the car was gone. At 03:53, the car was involved in a head on collision with an articulated lorry. The defendant was killed outright and the claimant was discovered in the rear of the car. He had survived, but had suffered serious head injuries.
Primary liability was admitted, however contributory negligence was alleged against the claimant on two bases:
(i) The claimant allowed himself to be driven by the defendant, whom the claimant knew or ought to have known was intoxicated and unfit to drive.
(ii) The claimant had failed to wear a seatbelt.
The accepted position in law is that the burden of proof shifts to a defendant where contributory negligence is pled against a claimant.
A Drunk Driver’s Passenger
The defendant in Campbell had been using both cannabis and alcohol. At the moment of impact, neither the claimant nor the defendant was wearing a seatbelt. Collision Reconstruction experts agreed that the claimant was likely to have been lying across the rear seats at the time of the collision.
Judge Robinson required to assess how the claimant had arrived in the rear seat of the car from the front. He determined it was most likely that the defendant had assisted the claimant into the rear seat. This led to the issue of capacity arising:
(i) Did the claimant have capacity to consent to removing his seatbelt and moving into the back seat?
(ii) Did the claimant have capacity to consent to being driven by the defendant?
Judge Robinson noted that the starting point is the presumption of having capacity (Mental Capacity Act 2005, Section 1(2)). Thereafter, the process must be time and issue specific. In his view, the evidence showed that the claimant was aware that the defendant had been drinking. They had been drinking together in large quantities for some time. He concludes, following Section 3 of the 2005 Act, that the claimant had capacity to consent to moving from the front to the rear seat of the car and, therefore, “he also had capacity to consent to being driven in the car.” Judge Robinson ultimately concludes that the claimant “was aware that the defendant had consumed so much alcohol that his ability to drive safely was impaired.”
The leading authority in this area is Owens v Brimmell [1977 QB] 859. Watkins J states at pages 866G-876A: “a passenger may be guilty of contributory negligence if he rides with the driver of a car whom he knows has consumed alcohol in such quantities as is likely to impair to a dangerous degree that driver’s capacity to drive properly and safely. So too may a passenger be guilty of contributory negligence if he, knowing that he is going to be driven in a car by his companion later, accompanies him upon a bout of drinking which has the effect […] of robbing the passenger of clear thought and perception and diminishes the driver’s capacity to drive properly and carefully.”
Judge Robinson considered the Court of Appeal’s judgement in Booth v White [2003] EWCA Civ 1708 where it was “accepted that Mr Booth could not rely on his own drunkenness.” This matter was treated as an objective test in Booth: “he should approach the case by assessing what a reasonable man in Mr Booth’s shoes would have done.” This application led to no finding of contributory negligence in Booth, as the wife of the claimant stated that the defendant seemed “normal, fine” at the time.
Applying this principal to Campbell, Judge Robinson considered that a reasonable man would have concluded that the defendant had consumed so much alcohol that his ability to drive safely was impaired, and that the claimant was contributorily negligent.
Senior Counsel for the claimant attempted to counter this with reference to the recent case of Spearman v Royal United Bath Hospitals NHS Foundation Trust [2017] EWHC 3027, which was distinguished by Judge Robinson. In his view, accepting Spearman as a relative comparator of Campbell would result in the unreasonable position that “a mildly drunk person might be guilty of contributory fault for making an unwise decision whereas a person who had deliberately consumed so much alcohol that they are unable to appreciate the foolishness of their decision is in a better position in law.”
Wearing a Seatbelt
The primary authority in this area is Froom v Butcher [1976] QB 276 in which Lord Denning states at pages 295G to 296F: “in so far as the damage might have been avoided or lessened by wearing a seat belt, the injured person must bear some share. […] a driver may have a duty to invite his passenger to fasten his seat belt; but adult passengers possessed of their faculties should not need telling […] If such passengers do not fasten their seat belts, their own lack of care for their own safety may be the cause of their injuries.”
Whilst Froom indicates that the failure to wear a seatbelt may be a factor in determining contributory negligence, an important question must be answered: would it have made a difference? Lord Denning offers a suggestion of applicable deductions:
• Where a seat belt would have entirely prevented by the wearing of a seatbelt, a reasonable contributory negligence deduction would be 25%.
• Where an injury could have been reduced, a 15% deduction would be appropriate.
• Where the wearing of a seatbelt would have no bearing on the nature and extent of an injury, no reduction in damages would be appropriate.
It must be remembered, however, that these are not prescriptive and that a Judge or Sheriff may determine a different deduction base on the facts and circumstances of individual cases.
The claimant and defendant in Campbell had each instructed experts to consider the matter and they did not agree on whether a seatbelt would have improved the claimant’s chances of a lesser injury. The evidence led by experts at trial determined that the claimant would probably have struck his head on the back of the front passenger seat, even if he had been wearing a seatbelt. It is the head injury that was primarily being considered. Judge Robinson considered that the wearing of a seatbelt would not have made a difference such that the claimant’s injuries would have been less severe.
Degrees of Fault
Judge Robinson lists a number of cases in assessing contributory negligence in Campbell.
• In Owens v Brimmel, contributory negligence was assessed at 20%.
• In Meah v McCreamer [1985] 1 All ER 367, contributory negligence was assessed at 25% on the basis that the plaintiff ought to have known that the defendant was not fit to drive.
• In Stinton v Stinton [1993] P.I.Q.R. P135, contributory negligence was assessed at 1/3. In this case, two brothers had been drinking together from 1930 until 0300. The Judge was unable to discern who had been driving during the day, but considered that the passenger ought to be considered as blameworthy as the law would allow, “just short of direct participation in the driver’s actual performance.”
In Campbell, Judge Robinson considered that there was no implicit evidence that the claimant intended to be driven home by the defendant from the club. The claimant must have known, however, that the defendant had drunk a considerable amount and would not be fit to drive. Ultimately, Judge Robinson determined that the claimant should be found 20% contributorily negligent.
Practice Points
Campbell highlights and affirms some key principles that must be considered where a plaintiff or pursuer has failed to wear a seatbelt or has allowed themselves to be driven by someone under the influence of alcohol or other substances.
With regard to the wearing of a seatbelt, the determining factor remains whether and to what extent the wearing of a seatbelt would have on the nature of the injuries sustained. Lord Denning’s guidelines remain a useful starting point and were referred to by Senior Counsel for both parties in Campbell. It follows that the application of the facts against a scientific background may assist a fact-finder in determining the question of the mitigating effect (or lack thereof) of wearing a seatbelt.
Where alcohol is involved, it must be determined if the plaintiff or pursuer knew or ought to have known that their driver was intoxicated or otherwise incapable of driving safely. This was treated as an objective rather than subjective manner, following the position in Booth. The question is, would a reasonable man have recognised that the driver was intoxicated? If so, a reasonable man would not have chosen to be their passenger. Again, expert evidence may assist in such cases. How much alcohol would be enough to affect the individual in question? Are they a regular user of alcohol or other drugs? Are they able to function in an apparently “normal” way such that a reasonable man would not consider them to be a risk to their safety on the road? It is helpful in these cases to seek the contemporaneous opinions of any witnesses who saw or spoke with a driver to determine how a reasonable man may have viewed the driver, had he been in the position of the plaintiff or pursuer.
As with most cases, the facts and circumstances of each case will determine to what extent contributory negligence ought to apply.