Court Considers Contributory Negligence, Capacity And Consent

Published date09 September 2020
Subject MatterLitigation, Mediation & Arbitration, Personal Injury, Professional Negligence
Law FirmClyde & Co
AuthorMr Mark Hemsted

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 [2020] EWHC 2210 (QB)

Background

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.

Alcohol

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...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT