Campbell (By His Litigation Friend) v Advantage Insurance Company Limited
22 November 2021

Campbell (By His Litigation Friend) v Advantage Insurance Company Limited

Written by Sophie Watson

Pupil barrister Sophie Watson examines the outcome of Campbell (by his litigation friend) v Advantage Insurance Company Limited whereby the Court of Appeal upholds that a Claimant cannot rely on his own intoxication when accepting a lift from a drunk driver to avoid a finding of contributory negligence.

Background Facts

The Claimant and his friends had been drinking in a nightclub. The Claimant became very drunk and was assisted into the front passenger seat of his friend’s car where he fell asleep. After leaving the Claimant in the vehicle, the Claimant’s friends went back to the nightclub and continued drinking.  When they returned to the car, it would not start and one of them went to borrow jump leads.

The other friend managed to start the vehicle and then began driving with the Claimant as a rear seat passenger, having moved position from the front passenger seat. A collision occurred with an oncoming lorry on the wrong side of the road.

The Claimant’s head collided with the driver’s seat, and he suffered a catastrophic brain injury. The driver was killed, and the other friend provided a witness statement, but killed himself prior to the trial.  Therefore, there was limited evidence in respect of the events of the night.

First instance Judgment

The Judge made reference to the Mental Capacity Act (MCA) 2005 and stated that section 1(2) sets out ‘a person must be assumed to have capacity unless it is established that he lacks capacity.’ 

The Judge found that the Claimant must have been aware of what was happening when he moved from the front passenger seat to the rear seat. He concluded that given the Claimant’s size/height it would have been highly improbable that the driver moved the Claimant without the Claimant assisting. The Judge found this was consistent with the Claimant being aware that the driver was intoxicated and therefore, consenting to remaining in the car as it was driven away.

The Judge applied an objective test of the ‘reasonable man’ when deciding whether, by virtue of being drunk, the Claimant was contributorily negligent. He made a finding of contributory negligence of 20% against the Claimant.

Appeal Decision

The Claimant appealed this finding of contributory negligence.

The Court of Appeal identified 4 key issues:

  1. Whether the Judge had wrongly applied the test of capacity under MCA 2005 and reversed the burden of proof for contributory negligence.
  2. Whether the Judge’s findings were properly made.
  3. Whether the Judge wrongly applied a test of the objective reasonable, competent and prudent passenger; and
  4. Whether the judge’s assessment of 20% reduction in damages should be reduced.

Firstly, in respect of capacity, the Court of Appeal considered that the Judge at First Instance had correctly applied the test under MCA 2005. It was held that the Judge did not reverse the burden of proof.

Secondly, the Court of Appeal found there was no evidence that any justiciable errors were made that would entitle interference with the findings of fact. The Court of Appeal was satisfied that, on the basis of the limited evidence, the Judge had made proper findings.

The main issue determined was the application of the objective test.

The Claimant’s Counsel had made reference to a number of Australian authorities. In McPherson v Whitfield [1996] 1 Qd. 474it was concluded that where the Claimant was lacking relevant conscious awareness, the Claimant should not be held responsible for failing to take reasonable care of his own safety. The Court of Appeal rejected this approach.

The Court of Appeal considered the case of Owen v Brimell [1977] QB 859which sets out twoscenarios in which contributory negligence could be found, namely: if the passenger accepted the lift knowing the driver was intoxicated or the passenger had known that he would be given a lift and then drunk to excess so that he could not make an assessment of the driver’s ability to drive. The Court of Appeal acknowledged that there were only two situations identified but found that this did not restrict contributory negligence to only these distinct situations.

In dismissing the appeal, the Court of Appeal found that the Judge at First Instance had rightly concluded that the Claimant should be assessed to the standards of a reasonable, prudent and competent adult.

It is notable that in agreement, Lord Justice Underhill considered an example of a person who was unconscious would be in a state where they were incapable of making a decision and could not consent. Therefore, in this scenario they would not be contributorily negligent.


The case re-affirms the objective test to be applied. It is clear that the question of voluntary and involuntary conduct will turn on the facts and the assessment of the evidence by the trial judge.


Sophie Watson is a pupil barrister currently undertaking a pupillage with Parklane Plowden Chambers.

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