header-logo header-logo

17 November 2021
Issue: 7957 / Categories: Legal News , Personal injury
printer mail-detail

Reasonable man test upheld

A passenger cannot use the fact they were too drunk to realise the driver was drunk as an excuse to avoid or reduce their contributory negligence, the Court of Appeal has held

Campbell v Advantage Insurance Company [2021] EWCA Civ 1698 concerned a fatal crash on the A40 between a car and a lorry travelling in the opposite direction. Sadly, the claimant suffered catastrophic brain damage while the driver was killed.

The claimant appealed the High Court’s decision to apply a 20% reduction due to the fact the parties had been at a nightclub together and the claimant should have known the driver was not fit to drive. The High Court made no deduction for the claimant’s failure to wear a seatbelt as the collision was so severe that it would have made little causative difference.

Dismissing the appeal, Lord Justice Underhill said it was important to note the judge’s finding that the passenger was ‘sober enough to enter the car voluntarily’.

Underhill LJ said: ‘A person who while unconscious through drink is put by friends or others into a car which is then driven by an (evidently) drunken driver will not be guilty of contributory negligence, because they have done no voluntary act: to put it another way, they will not have consented to being driven at all.

‘However foolish it may be to drink yourself into a stupor, you cannot be treated as having consented to things that are then done to you while in that state. That is of course an extreme case: a person who is not totally unconscious may nevertheless be in a state where they are incapable of making a decision. The decision where exactly to draw the line between voluntary and involuntary conduct―between consent (even if drunken consent) and no-consent―in a particular case is a fact-sensitive question which must, within reasonable limits, be left to the judge.’

Mike Pope, Keoghs partner, who acted for Advantage, said the decision endorsed the objective test of Owens v Brimmell [1977] QB 859, that a passenger will be judged by the standard of the reasonable man.

Issue: 7957 / Categories: Legal News , Personal injury
printer mail-details

MOVERS & SHAKERS

Anthony Collins—20 promotions

Anthony Collins—20 promotions

20 promotions mark major people investment at national law firm, Anthony Collins

Sidley—Elaine Whiteford

Sidley—Elaine Whiteford

Sidley adds competition litigator Elaine Whiteford in London

Charles Russell Speechlys—Claudina D’Costa

Charles Russell Speechlys—Claudina D’Costa

Charles Russell Speechlys welcomes Claudina D’Costa as Director of Client Development Marketing

NEWS
The 25th Pro Bono Week begins today until 6 November, with events hosted by law firms, chambers, law schools and charities across the UK
Pro bono is celebrating a silver anniversary, with initiatives putting businesses and students at the heart of access to justice
Choosing the wrong expert can cost a clinical negligence claimant more than their case
Judges risk weakening their own independence by staying silent over government reforms, a leading public lawyer argues
A discount on damages does not automatically mean an equivalent haircut for legal costs in military deafness claims
back-to-top-scroll