In an interesting case for practitioners, the High Court considered issues of capacity, consent and contributory negligence following an RTA in which the Claimant was a passenger driven by his intoxicated friend. The judge found the Claimant had capacity to consent to being driven by the drunk driver but his failure to wear a seatbelt did not make a difference to his injuries. The appropriate reduction for contributory negligence was found to be 20%.
Campbell v Advantage Insurance Company  EWHC 2210 (QB)
The Claimant was being driven from a nightclub by his intoxicated friend when the car drove headlong into an articulated lorry. Earlier that evening the Claimant had become so intoxicated that his two friends sat him in the front seat of the car, where he fell asleep. The Claimant's friends went back into the club. When they returned later the Claimant was still in the front passenger seat. The driver, Dean, drove off with the Claimant. Aaron had returned to the club and was not in the car. Dean was killed outright. The Claimant had somehow moved from the front passenger seat into the rear of the car, and sustained extremely serious injuries.
At trial His Honour Judge Robinson found it was Dean's decision to move the Claimant into the back of the car (before they set off) and he had assisted the Claimant (who was then awake) out of the front seat and into the back.
The Defendant admitted primary liability but alleged contributory negligence.
The Defendant alleged:
- The Claimant allowed himself to be driven by Dean, and he knew or ought to have known Dean was intoxicated and not fit to drive.
- The Claimant did not wear a seatbelt.
Due to his injuries the Claimant was unable to give evidence on his own behalf. Aaron committed suicide before the trial began but had provided written statements.
There were some inconsistencies in Aaron's evidence, as to how much was drunk at the club, but HHJ Robinson found "it was clearly a lot, comprising, at the very least, champagne and numerous shots." When the Claimant was put into the front seat of the car he must have been aware that Dean "had drunk a great deal of alcohol." The judge further found that the Claimant "was aware that Dean had consumed so much alcohol that his ability to drive safely was impaired."
The judge specifically referred to Section 3 of the Mental Capacity Act 2005 and found the Claimant had capacity to consent to being moved from the front seat to the back of Dean's car. He found the Claimant would have been able to understand he was being moved from the front of the car to the back; it was a continuous process so there would be no difficulty retaining the information and the Claimant was probably aware of what was happening; and the Claimant changed position in the car which indicated assent.
The judge then considered that if the Claimant had capacity to consent to changing position in the car then "he also had capacity to consent to being driven in the car." He continued that if the Claimant's "intention had been to leave the car, before it was driven off, he would surely not have got into the back of it."
It was argued on behalf of the Claimant that he was so incapacitated through alcohol that he could not properly decide whether to enter the car, let alone decide to activate a seatbelt. It was submitted that it was the responsibility of Dean to ensure the Claimant was wearing a seatbelt before driving off.
HHJ Robinson said the issue was whether the Claimant had capacity to decide whether or not to wear a seatbelt. As he had found the Claimant had capacity to decide to move from the front of the car to the back, it therefore meant the Claimant had capacity to decide whether or not to wear a seatbelt. HHJ Robinson found the Claimant chose not to wear one.
Based upon the expert evidence the judge had "no hesitation in finding that even if the Claimant had been wearing a seat belt in the rear near side passenger seat, his head would have struck the front passenger seat." There was no reduction in damages for this failure as the judge was "unable to find that wearing a seatbelt would have made any difference in outcome".
The judge noted there was no evidence to suggest an earlier agreement that Dean would drive the Claimant away from the pub. It is possible the Claimant would have gone home by taxi if he had not been put into the front seat of Dean's car. Further, whilst the Claimant "must have known" how much alcohol Dean had drank before he was walked to the car, he could not have known how much more alcohol Dean consumed beyond this point.
The judge found that the appropriate degree of contributory fault on the part of the Claimant was 20%.
What can we learn
- The judge concluded that as the Claimant was "physically able to move from the front into the rear of the car, even with assistance" he was physically able "to accomplish the fairly simple task of putting a seatbelt on." It was the Claimant's responsibility to ensure he was wearing a seatbelt and it would be "unnecessarily paternalistic" to find that Dean owed a duty to the Claimant to help him, or encourage him, to fasten his seatbelt.
- In relation to the level of contributory negligence, the Defendant pointed the judge to two cases – Meah v Mc Creamer  and Stinton v Stinton and The Motor Insurer's Bureau . HHJ Robinson found that it was "implicit in the judgment" of both of these cases that the claimants had intended to be driven home by the drivers. There was never such an agreement between the Claimant and Dean. As such the level of contributory negligence was lower than Meah (25%) and Stinton (one third).
- Had the judge found that the Claimant was unable to assess Dean's fitness to drive the case of Booth v White  would be relevant. In this case the Court of Appeal determined that a claimant cannot "rely on his own drunkenness" and the test in determining whether a claimant had failed to take reasonable care for his own safety was to assess what a reasonable man in the claimant's shoes would have done.