Too drunk to wear a belt and too drunk to appreciate the risk the drive posed?

Campbell v Advantage Insurance Co Ltd [2020] EWHC 2210 (QB)

This is an interesting decision handed down last week dealing with contributory negligence in the light of intoxication (both passenger and driver) and the appropriate discount to apply through failure to wear a seat belt.

Facts

The claimant and driver (deceased) had been together all evening and there was clear evidence that the defendant driver had drunk a large quantity of alcohol; in addition toxicology revealed cannabis at a level that would exacerbate the effect of alcohol. 

The claimant was extremely drunk when entering the vehicle and remained so, but the judge nonetheless found that this was no defence and he retained capacity to remain in the car, where to sit and whether or not to wear a seat belt.  

The collision involved a very high speed head-on crash (over 100mph closing speed) with a HGV. At the time of the impact the claimant was unrestrained and laid down on the back seat. After being positioned in the car (with a belt on in the front seat) he had been left for an hour or so and at some point, probably with the help of the driver, had put himself in the back seat and in doing so had taken his seat belt off. The claimant sustained catastrophic brain damage and remains in a minimally conscious state.

There were no live witnesses able to give direct evidence as the defendant was killed in the impact. The other member of the party, who was not in the car at the end, had died before trial but had made three separate conflicting statements.

The decision

Applying Owens V Brimmell, damages were discounted by 20% for the fact of allowing himself to be carried by a drunk driver, but the Froom v Butcher seat belt argument failed, on the basis that the head injury would not have been materially different even if a belt had been worn due to the nature of the frontal collision and its impact on the front compartment being driven back into the rear passenger area.

Significance

1. A claimant cannot pray in his own aid a lack of capacity and expose himself to risk (be it not wearing a belt or being driven by a drunk driver) by virtue of self-intoxication. The test is an objective one, would a reasonable man have considered it safe to allow himself to be driven by that driver. Booth v White [2003] EWCA Civ 1708 was followed.
2. The driver had a blood alcohol level of over twice the legal limit to drive, but this was subject to inflation through post mortem production of alcohol. Regardless of the actual toxicology the judge found he had consumed a large amount of alcohol and that the claimant would have been aware of this.
3. The level of discount would have been higher had there been evidence that the claimant had planned all along to be driven by the defendant regardless of what he had drunk – such evidence would elevate the case towards a “joint venture” [as was the case in Stinton v Stinton (1993) and Meah v McCreamer (1985)].
4. The seat belt argument failed on the particular facts because the defendant was unable to show that on the balance of probabilities the outcome would have been any different. This was due to the unusual nature of the high impact speed impact which caused significant intrusion into the vehicle so that a head strike was likely regardless of a belt being worn. The judge was more convinced in this case by the evidence of a neurologist over an A&E consultant when balancing the causative effect.

It is understood the issue of costs remains to be resolved at a further hearing.

The defendant, through insurers, was represented by Chris Kennedy QC and the case handled by Mike Pope, Partner in Keoghs Complex and Catastrophic Loss team, who can be contacted for further information.

A full copy of the judgment is available here.