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.
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