2021-12-17

Intoxicated passengers: each case will turn on its own facts

The tragic case of Campbell v Advantage Insurance Company Ltd [2021] is a cautionary tale of the perils of over-exuberance and recklessness. The defendant driver, his brother and the claimant had been drinking heavily before the defendant, with the claimant as his passenger, had driven into collision with a HGV. The defendant was killed, the claimant suffered catastrophic injuries and the brother committed suicide before the trial.

Helpfully, the Court of Appeal (CA) confirmed that a drunken passenger will be judged objectively by the standards of the reasonable, prudent (i.e. sober) person when considering whether a claimant should have realised that the driver was unfit to drive. The passenger cannot rely on their own self-intoxication to excuse their inability to assess the driver.

Having said that, it is a feature of these cases that they are very fact-sensitive. So whilst in Campbell the court concluded that it would have been obvious that the driver was unfit to drive, in Booth v White [2003] the CA found, surprisingly, that this would not necessarily have been obvious. This was on the basis of the claimant’s wife’s view that the defendant driver had seemed fine, despite having been nearly twice the legal limit. The passenger’s awareness of the driver’s drinking preceding the accident proved significant, as was evidence of the extent of the driver’s intoxication via toxicology reports and drink/driving prosecutions.

It could be argued that Booth seems unduly generous to the claimant. Defendants will wish for objectively reasonable inferences to be made by judges.

Campbell also clarified the need for the passenger to have voluntarily consented to being driven by the drunk driver. Again, each case on its own facts. One might think that this would be a much higher threshold for the defendant to prove. However, what is interesting about consent is the willingness of the courts to find that a very intoxicated passenger still had their wits sufficiently about them to consent to take a lift with a drunk driver. This was the conclusion in Campbell, despite the claimant being very drunk: if he was aware enough to co-operate with the defendant helping him into the back of the car, he was aware of the simple decision to take the lift.

The reduction of 20% was not challenged by the Defendant in Campbell. However, there does seem scope for higher reductions to be secured, where there is greater culpability.

In Campbell, there was no clear evidence that the claimant had intended from the outset to take a lift home with the defendant and his decision to do so was taken without much thought. Where there is evidence of a premeditated intention to do so and full awareness of the defendant’s intoxication, higher reductions of 25% in Meah v McCreamer [1985] and one-third in Stinton v Stinton [1993] (where the claimant also knew the defendant was uninsured) have been made.

One gets the sense that the courts, as a matter of policy, want to recognise the duty to take reasonable care for oneself, including not getting so drunk that you take obvious risks. Also, courts will be aware that such episodes are often, to a greater or lesser degree, joint ventures. This is particularly the case where the passenger has been drinking heavily with the driver before the accident. All this leads to a more strict approach, placing responsibility on passengers to take care for their own safety.