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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Campbell v Advantage Insurance Company Ltd [2021] EWCA Civ 1698 (15 November 2021) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2021/1698.html Cite as: [2022] RTR 8, [2021] WLR(D) 579, [2022] PIQR P6, [2022] QB 354, [2022] 2 WLR 246, [2022] ELR 217, [2021] EWCA Civ 1698 |
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ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
HIS HONOUR JUDGE GRAHAM ROBINSON QC
Strand, London, WC2A 2LL |
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B e f o r e :
(Vice-President of the Court of Appeal (Civil Division))
LORD JUSTICE BAKER
and
LORD JUSTICE DINGEMANS
____________________
LYUM ROY CAMPBELL (a protected party who proceeds by his father and litigation friend DONALD CAMPBELL) |
Appellant/ Claimant |
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- and - |
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ADVANTAGE INSURANCE COMPANY LIMITED |
Respondent/Defendant |
____________________
Claimant
Christopher Kennedy QC and Matthew Snarr (instructed by Keoghs LLP) for the Respondent/Defendant
Hearing date : 19 October 2021
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Crown Copyright ©
Lord Justice Dingemans:
Introduction
The judgment below
21. The judge then referred to relevant case law before considering whether if, contrary to the findings of fact that he had made, Mr Lyum Campbell was unable to make his own assessment of Mr Dean Brown's fitness to drive. He held "adopting the objective test I must assess what a reasonable man in the Claimant's shoes would have done the reasonable man is able to make an assessment of the driver's fitness to drive he would have made such assessment and would inevitably have concluded that Dean had consumed so much alcohol that his ability to drive safely was impaired".
22. In the light of these findings of fact the judge said "Having regard to my findings of fact, and the applicable law, it is inevitable that I must make a finding of contributory negligence against the Claimant".
The respective cases on appeal
A proper reference to the Mental Capacity Act 2005 (issue one)
No impermissible speculation (issue two)
An objective test for assessing contributory negligence of a passenger (issue three)
"(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage "
38. In Joslyn v Berryman the High Court of Australia endorsed the Morton v Knight line of authorities. Having reviewed the competing lines of authority McHugh J. said "if a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication". The objective test was applied by all the other judges in the High Court. Gummow and Callinan JJ giving joint reasons said "a person in the position of Mr Berryman ought to have known, and in fact would have known (if he had not precluded himself from knowing by his own conduct) that Ms Joslyn's capacity must have been impaired, and probably grossly so, by the amount of alcohol she had drunk ". Kirby and Hayne JJ in separate judgments relied on specific provisions of the Motor Accidents Act in New South Wales which supported an objective test.
39. The issue of contributory negligence for a drunken passenger accepting a lift from a drunk driver was considered in England and Wales in Owens v Brimmell. The passenger and driver had been on a pub crawl and had both drunk eight to nine pints of beer. On the way home the driver hit a lamp post and the passenger suffered serious injuries. A reduction of 20 per cent for contributory negligence was made. Reference was made to earlier authorities where the defence of a voluntary assumption of risk had been considered. Watkins J was unable to find any earlier case from England and Wales which had considered the issue and he reviewed the approach taken to this issue in Australia, the United States and Canada. Watkins J. said at page 866H " there is widespread and weighty authority for the proposition that 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 quantity as is likely to impair to a dangerous degree that driver's capacity to drive so, also, may a passenger be guilty of contributory negligence if he, knowing he is going to be driven in a car by his companion later, accompanies him upon a bout of drinking which has the effect, eventually, of robbing the passenger of clear thought and perception and diminishes the driver's capacity to drive properly and carefully". In Owens v Brimmell Watkins J held that he thought it more likely that the claimant had, when commencing the pub crawl, given "little, if any, thought to the possible consequences of it, or were recklessly indifferent to them". He held that "this is a clear case on the facts of contributory negligence, either upon the basis that the minds of the plaintiff and the defendant, behaving recklessly, were equally befuddled by drink so as to rid them of clear thought and perception, or, as seems less likely, the plaintiff remained able to, and should have if he actually did not, foresee the risk ".
No interference with apportionment (issue four)
Conclusion
Lord Justice Baker:
Lord Justice Underhill:
"The excuse of drunkenness must be disregarded when considering contributory negligence. It is no excuse for failing to take reasonable care that the person in question was unable to take proper care, as a result of voluntary intoxication. A person the worse for drink cannot demand a higher standard of care than a sober person or plead drunkenness as an excuse for not taking the same care when drunk, as would have been taken when sober."
No authority of this Court is in fact cited for that proposition, but it seems to me plainly right in principle. I see no answer to the simple example given by McHugh J at para. 39 of his judgment in Joslyn v Berryman (referred to by Dingemans LJ at para. 38 above):
"If an intoxicated pedestrian falls down a manhole that a sober person would have seen and avoided, it seems impossible to hold that the pedestrian was not guilty of contributory negligence because the pedestrian's condition prevented him or her from seeing the danger."
"Hence, the issue is not whether a reasonable person in the intoxicated passenger's condition if there could be such a person would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person a sober person would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver's intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication."
"If the Claimant had capacity to consent to a change of position in the car, then in my judgment he also had capacity to consent to being driven in the car. Having found that the Claimant must have known he was moving from the front of the car to the back of the car, I also find that this move is only consistent with the Claimant consenting to remaining in the car whilst it was driven away. If his intention had been to leave the car, before it was driven off, he would surely not have got into the back of it."