Much has been written in the legal press about the relevance of Darren Best v Damion Smyth [2010] EWCA Civ 204 and the court’s approach to interim payments. Less has been written about the approach taken in relation to the contributory negligence arguments raised.

Mr Best was rendered paraplegic after he was seriously injured in a road traffi c accident. He had been a passenger in Mr Smyth’s van. Prior to the accident the two men had been out drinking. At the time of the accident Mr Smyth’s blood alcohol level was more than twice the legal limit.

Primary liability was admitted; however, it was argued that Mr Best had been contributory negligent through both a) not wearing a seatbelt and b) his knowledge that Mr Smyth was over the drink drive limit. The defence argued that the proper reduction would be 50%.

The court held that there was no support in any authority for a reduction at the levels argued by the defence. It was an “ambitious submission’” that a passenger in a car being driven by a drunk friend was as much to blame as the driver.

It was acknowledged that since Froom v Butcher [1976] QB 286 the maximum reduction likely to be awarded for failure to wear a seatbelt is 25%. And since Owens v Brimmell [1977] QB 859 the fi gure of 20% is commonly regarded as the deduction reduction for a claimant who has got into a vehicle when he must have known that the driver had had too much to drink.

The court indicated that there should be a combined maximum reduction of 30% in respect contributory negligence.

RPC comment:

It is disappointing that the court did not use this opportunity to review the relevant reductions to be made for contributory negligence.

The court continues to be guided by judgments made in the 1970s. It is arguable that since this date there is a greater public awareness of both the dangers of not wearing a seatbelt and of drink driving.

It is also disappointing for insurers that the court did not take heed of the defendant’s arguments that a 50% reduction should be applied. Without a detailed analysis of the facts this appears to be a case where – on the face of it – liability should have been apportioned equally. It is an unfortunate departure from a number of recent judgments (albeit not in a road traffi c context) where the court has taken a stronger approach that an injured person accepts risks on their own behalf and should have their compensation reduced accordingly.