The drunkenness of a passenger seeking damages for injuries sustained in a car crash ‘will not avoid a finding of contributory negligence’ where the claimant should have appreciated that the driver was too drunk to drive safely, the Court of Appeal has ruled.

In the ‘very sad’ case of Campbell v Advantage Insurance Company Ltd, the Court of Appeal considered ‘whether a claimant can rely on his own drunkenness and consequential lack of insight’ to avoid a finding of contributory negligence or a reduction in the apportionment of their responsibility.

Lyum Campbell had been drinking at a nightclub with friends in 2016 before Dean Brown attempted to drive them home in the early hours. Their car collided with a lorry and Campbell, who was in the back seat without a seatbelt, sustained catastrophic brain damage while Brown was killed.

Liability was admitted but Brown’s insurer, Advantage, contended that Campbell’s damages should be reduced for contributory negligence because he was not wearing a seat belt and had allowed himself to be driven by Brown, when Brown had obviously been drinking to excess.

The High Court held that, although Campbell was not wearing a seatbelt, it had no causative effect. However, Judge Graham Robinson QC found Campbell should have appreciated that Brown had drunk too much alcohol to be fit to drive and assessed Campbell’s contributory negligence at 20%.


CoA: Courts assessing contributory negligence should apply object standard of 'reasonable and prudent man'

Campbell appealed against the finding of contributory negligence and the reduction of damages by 20%, arguing the judge wrongly applied an objective test when assessing any contributory fault.

Dismissing the appeal this week, Lord Justice Dingemans said the test of whether a person has breached a duty of care in negligence is an objective standard, which is normally that of ‘a reasonable and prudent man’.

The judge added that, if that is the objective standard applied to Brown when judging his driving, ‘it is not obvious why a different standard should be applied’ to Campbell. The fact Campbell would not have agreed to be driven by Brown if he had been sober ‘does not assist him if an objective standard is applied’, Dingemans said.

As a reasonable, prudent and competent man in Campbell’s position would have appreciated that Brown had drunk too much to drive safely, the finding of contributory negligence was properly made, Dingemans held.

In a concurring judgment, Lord Justice Underhill added: ‘It is clear that the law in this jurisdiction has come down against treating the fact that the claimant is drunk as a characteristic that can be taken into account in deciding whether he or she took reasonable care for their own safety.’