Contributory Negligence: claimants who allow themselves to be driven by intoxicated persons and fail to wear a seatbelt. Legal Update by Bronia Hartley.
In this case the court considered the issues of capacity, consent and contributory negligence following a road traffic accident wherein the Claimant, Lyum Roy Campbell, suffered very severe injuries, having allowed himself to be driven by a friend who was intoxicated.
In the early hours of 9 August 2016, the Claimant and Aaron Brown were driven by Aaron’s brother, Dean Brown, to the Moo Moo night club in Cheltenham in a three-door hatch back Seat Ibiza. In his judgment, His Honour Judge Robinson (sitting as a Judge of the High Court) referred to the Brown brothers by their first names.
All three drank alcohol in the club. There came a time when the Claimant, who was clearly drunk, was assisted out of the club by Aaron and Dean and placed in the front passenger seat of Dean’s car. He leaned out of the car to be sick on the ground. Aaron and Dean returned to the club to continue drinking.
About an hour or so later, Aaron and Dean left the club, returned to the car and got into it. Aaron was in the rear offside passenger seat. The Claimant was still in the front passenger seat. The car would not start. Aaron got out of the car to return to the club to find some jump leads. When he returned, the car had gone. At 3.53am the car drove headlong into an articulated lorry. Dean was killed outright. The Claimant had somehow moved from the front passenger seat into the rear of the car. He survived the crash but sustained extremely serious injuries. He brought a claim for damages for those injuries and other losses arising out of the accident. Primary liability was admitted. Contributory negligence was alleged on the grounds that:
(1) The Claimant knowingly allowed himself to be driven by Dean, whom it is alleged the Claimant knew or ought to have known was not fit to drive by reason of his intoxicated state: Owens v Brimmell[1977 QB] 859;
(2) The Claimant did not wear a seat belt: Froom v Butcher QB 276.
The burden of proof on these matters rested, of course, with the Defendant.
Tragically, before the trial began, Aaron took his own life. Before he died he provided written witness statements to the solicitors for the Claimant and for the Defendant.
The Claimant was in a minimally conscious state and was therefore unable to give evidence on his own behalf.
Dean’s car was driven head-on into an articulated lorry. The lorry was on its correct side of the road. Dean had probably fallen asleep at the wheel. The car had been driven approximately 9.3 miles towards Oxford, which was in the opposite direction to the location of the Claimant’s house.
The closing speed of vehicles at impact was very high and Dean was killed instantly.
The forensic toxicology report prepared for the Coroner showed that Dean had used cannabis at some time before his death. Ethanol (alcohol) was detected in the post-mortem blood sample. Post-mortem microbial action does produce ethanol, but typically less than 50mg/dl. The concentration of ethanol in the sample of post-mortem blood was 176mg/dl. The legal driving limit is 80mg/dl in “life blood”. Various studies have demonstrated that impairment of driving ability is significantly increased when cannabis and alcohol is used together compared with their use alone.
Neither Dean nor the Claimant were wearing seat belts at the moment of collision.
The Collision Reconstruction experts agree that the Claimant was most probably lying across the rear seats at the time of the collision.
The head and torso of the Claimant appear to have made contact with the rear of the driver’s seat.
The Claimant’s position in the car
The question arose: how did the Claimant come to be in the rear of the car having initially been asleep in the front passenger seat? The Judge found the most likely explanation to be that Dean assisted him into the back seat, perhaps so that Aaron could hop into the front passenger seat after dealing with the jump starting of the car.
Capacity of the Claimant
Two issues arose:
(1) Did the Claimant have capacity to consent to being moved into the back
seat of the car?
(2) Did the Claimant have capacity to consent to being driven by Dean?
The two questions were linked to an extent. There would be no reason to consent to moving into the back of the car if the Claimant did not want to be driven.
The following provisions of the Mental Capacity Act 2005 were held to be relevant:
Section 1 - The Principles
(2) A person must be assumed to have capacity unless it is
established that he lacks capacity.
(4) A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
Section 2 – People who lack capacity
(1) For the purposes of this Act, a person lacks capacity in relation
to a matter if at the material time he is unable to make a decision for himself in relation to a matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) It does not matter whether the impairment or disturbance is permanent or temporary.
(3) A lack of capacity cannot be established merely by reference to-
(a) a person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour which might lead others to make unjustified assumptions about his capacity.
(4) In proceedings under this Act or any other enactment, any question whether a person lacks capacity within the meaning of the Act must be decided on the balance of probabilities.
Section 3 – Inability to make decisions
(1) For the purpose of section 2, a person is unable to make a decision for himself if he is unable-
(a) to understand the information relevant to his decision,
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means).
(2) A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).
(3) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) The information relevant to a decision includes information about the reasonably foreseeable consequences of-
(a) deciding one way or another, or
(b) failing to make the decision.
Inexorably linked to the issue of capacity was the Claimant’s state of awareness generally and specifically his knowledge of Dean’s level of intoxication.
The only lay evidence of the Claimant’s state of awareness and of Dean’s intoxication came from Aaron. There was no evidence that Dean drank anything before he arrived at Aaron’s house and the evidence suggested that there would not have been much time for drinking at Aaron’s before the three headed to the club. The Claimant’s awareness of what Dean drank at the club was limited to the time before he was helped from the club into the car, however it was clear that in the time that the three were together in the club, they drank a lot, comprising, at the very least, champagne and numerous shots.
The matters to be determined were whether, on the available evidence, the Claimant was:
(1) able to and did consent to that change of position in the car; and
(2) was able to and did consent to being driven in the car; and
(3) was aware that Dean would be driving; and
(4) was aware that Dean’s ability to drive was impaired by reason of the alcohol he had consumed.
The starting points were the presumption of capacity and the fact that capacity is time and issue specific. The evidence of previous consumption of alcohol by the Claimant was found to be insufficient to displace the presumption of capacity to consent to moving position into the back of the car. The Judge held by extension that if the Claimant had capacity to consent to a change of position in the car, 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, he found that this move was 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. The Judge also found that the Claimant was aware that Dean had consumed so much alcohol that his ability to drive safely was impaired.
The law on being driven by intoxicated persons
The leading case is Owens v Brimmell QB 857. In that case, having reviewed the authorities Watkins J said (pages 866G-867A):
“... [I]t appears to me that 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 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, eventually, of robbing the passenger of clear thought and perception and diminishes the driver’s capacity to drive properly and carefully. Whether this principle can be relied upon successfully is a question of fact and degree to be determined in the circumstances out of which the issue is said to arise.”
At page 864C he cited Lord Denning’s dictum in Froom v Butcher QB 286, 289:
“Contributory negligence is a man’s carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable prudent man he might hurt himself ...”
Counsel for the Defendant also relied upon Booth v White EWCA Civ 1708, in which case the Claimant accepted a lift from the Defendant, with whom he had spent part of the day drinking. The Claimant himself admitted that before accepting lift from the Defendant, he had himself consumed between 10 and 15 pints of lager during the day. He also accepted that at the time he elected to be driven by the Defendant, he was incapable of making any reliable judgment for his own safety. Finally, the Claimant accepted that if he had asked the Defendant how much the Defendant had drunk that day, the Defendant would have given an honest answer, and that it would have been sensible to have asked such a question. The Court of Appeal recorded, it seems without disapproval, that:
“10 ... [The Judge] accepted that Mr Booth could not rely on his own drunkenness and, in determining whether he had failed to take reasonable care for his own safely, he should approach the case by assessing what a reasonable man in Mr Booth’s shoes would have done.”
However, the allegation of contributory negligence failed in the Booth v White case because the Claimant’s wife gave unchallenged evidence to the effect that she had observed the Defendant shortly before the Claimant got into his car and that he had appeared “normal, fine”. Brooke LJ, giving the lead Judgment of the Court of Appeal, with which the other two members agreed, said (emphasis added):
“20 ... The law requires the passenger to make an assessment of the driver when deciding whether, in the interests of his own safety he should have a lift. The judge relied on Mrs Booth’s evidence and the assessment that her husband would have made if he had been fit to make it.”
His Honour Judge Robinson posed the question to himself: “What if, contrary to my finding of fact, the Claimant was unable to make his own assessment of Dean’s fitness to drive, and such inability was the result of self-induced intoxication?” His answer was that adopting the objective test advocated in Booth v White, he was required to assess what a reasonable man in the Claimant’s shoes would have done. In his judgment, the reasonable man in this instance is a man who is able to make an assessment of the driver’s fitness to drive. Had the Claimant been able to make an assessment of Dean’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. Having made those findings, the Judge went on to say that a finding of contributory negligence against the Claimant was “inevitable.”
Counsel for the Claimant sought to argue that the Claimant clearly lacked capacity to consent to anything. He relied upon a dictum of Martin Spencer J in Spearman v Royal United Bath Hospitals NHS Foundation Trust EWHC 3027, in which case the Claimant, who suffered from Type 1 diabetes and had also sustained brain damage following a road traffic accident when he was in his early 20s, suffered a hypoglycaemic attack of such severity that he was taken to hospital by ambulance. During this attack he climbed over the safety fence surrounding a roof terrace before either falling or jumping off the roof. Martin Spencer J found that the Claimant’s act of climbing over the security fence and/or jumping from the roof was: “….negatived by the Claimant’s state of mind, as I have found it to be.” He went on: “Whether as a result of the ongoing effects of the hypoglycaemic attack or the effects of the pre-existing brain injury or a combination of the two, the Claimant did not appreciate the danger he was in…, in climbing the fence, just as he had not appreciated the position he was putting himself in when he cleaned his shotgun at Terminal 1 of Heathrow Airport. Just as a young child is not guilty of contributory negligence in running out into a road where the child is so young as not to appreciate the danger of so doing, so too where a person’s state of mind is such that, whether temporarily or permanently, they do not appreciate that they are putting themselves in danger and it cannot be said that they should have so appreciated. Otherwise, that would be to penalise a person for being ill or of unsound mind, and the law does not do that.”
His Honour Judge Robinson found that the situations which Martin Spencer J had in mind did not include self-induced intoxication. His reference to the law not penalising “a person for being ill or of unsound mind” did not, in his judgment, include persons who have got themselves deliberately drunk.
The law on failure to wear a seat belt
The leading case is Froom v Butcher. Lord Denning MR, in a judgment with which the other members of the Court of Appeal agreed, summarised his conclusions at pages 295G to 296F:
“Whenever there is an accident, the negligent driver must bear by far the greater share of responsibility. It was his negligence which caused the accident. It also was a prime cause of the whole of the damage. But in so far as the damage might have been avoided or lessened by wearing a seat belt, the injured person must bear some share. But how much should this be? It is proper to inquire whether the driver was grossly negligent or only slightly negligent? Or whether the failure to wear a seat belt was entirely inexcusable or almost forgivable? If such an inquiry could be easily undertaken, it might be as well to do it. ... In most of these cases the liability of the driver is admitted, the failure to wear a seat is admitted, the only question is: what damages should be payable? This question should not be prolonged by an expensive inquiry into the degree of blameworthiness on either side, which would be hotly disputed. Suffice it to assess a share of responsibility which will be just and equitable in the great majority of cases. Sometimes the evidence will show that the failure made no difference. The damage would have been the same, even if a seat belt had been worn. In such cases the damages will not be reduced at all. At other times the evidence will show that the failure made all the difference. The damage would have been prevented altogether if a seat belt had been worn. In such cases I would suggest that the damages should be reduced by 25 per cent. But often the evidence will only show that the failure made a considerable difference. Some injuries to the head, for instance, would have been a good deal less severe if a seat belt had been worn, but there would still have been some injury to the head. In such a case I would suggest that the damages attributable to the failure to wear a seat belt should be reduced by 15 per cent.”
At page 296 E-F Lord Denning MR said:
“Under the Highway Code 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 what to do. 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.”
His Honour Judge Robinson considered the issue to be a straightforward factual one - whether Claimant was, at the material time, a passenger who was possessed of his faculties; a passenger who was neither infant or patient; in modern parlance, whether at the material time the Claimant had capacity to decide whether or not to wear a seat belt. Having already found that the Claimant had capacity to decide to move from the front of the car to the rear of the car, he also found, by parity of reasoning, that he did have capacity to decide whether or not to wear a seat belt.
Failure to wear a seat belt – the expert evidence
The court heard evidence from both engineers and medical experts in relation to the question of whether the wearing of a seatbelt would have made a “considerable difference” such that the Claimant’s injuries would have been “a good deal less severe”, to use the words of Lord Denning MR in Froom v Butcher. The main focus of the exercise was causation in respect of the Diffuse Axonal Injury (DAI) to the brain sustained by the Claimant. The analysis of this question can be found at paragraphs  to , but suffice it to say that His Honour Judge Robinson concluded:
“…it has not been established that wearing a seat belt would have sufficiently slowed the decelerative effect so that the extent of the consequences of what I find to be the inevitable DAI would have been diminished. It does not seem to me to be legitimate to extrapolate the results from relatively low speed impacts in regulatory testing to conclude that in this particular accident wearing a seat belt would have made any significant difference at all to the consequences of the head injury sustained by the Claimant.”
Accordingly, the Judge was unable to find that wearing a seat belt would have made any difference in outcome such as to enable him to make any reduction in damages by reason of the failure of the Claimant to wear a seat belt.
Degree of contributory fault
Returning to the degree of contributory fault in relation to the Claimant’s decision to allow himself to be driven by an intoxicated person, His Honour Judge Robinson considered the cases of Owens v Brimmell (Op. cit) (20%), Meah v McCreamer  1 All ER 367 (25%) and Stinton v Stinton and The Motor Insurer’s Bureau  P.I.Q.R. (one-third). In Stinton v Stinton and the MIB, the Plaintiff and the first Defendant were brothers. They drank together from 7.30pm until about 3.00am the following morning. It was clear that the Plaintiff intended all along to be driven home by his brother. His Honour Judge Robinson did not consider the Claimant to be as culpable. There was no evidence that there was an earlier agreement that Dean would drive the Claimant away from the club. Had it not been for the fact that the Claimant was put into the front seat of the car by Dean and Aaron it is quite possible that he would have gone home by taxi. Whilst the Claimant must have known how much alcohol Dean had drunk up to the point where the Claimant was walked from the club to the car, thereafter he cannot have known how much more Dean had drunk. There was no evidence that the Claimant knew for how long he was left alone in the car whilst Dean and Aaron continued drinking in the club. There was no evidence concerning the Claimant’s awareness of any behaviour exhibited by Dean during the process of the Claimant transferring from the front of the car to its rear. Further, the Judge considered it likely that the decision of the Claimant to allow himself to be driven by Dean was taken without a great deal of thought. In those circumstances it seemed to the Judge that contributory fault on the part of the Claimant ought to be less than that contended for by the Defendant. The appropriate degree of contributory fault on the part of the Claimant was 20%.
Bronia Hartley was called to the Bar in 2006 and specialises in personal injury law.