Booth v White
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BROOKE,LORD JUSTICE LATHAM,THE PRESIDENT |
| Judgment Date | 18 November 2003 |
| Neutral Citation | [2003] EWCA Civ 1708 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B3/2003/1041 |
| Date | 18 November 2003 |
[2003] EWCA Civ 1708
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
(JUDGE CURL)
Royal Courts of Justice
Strand
London, WC2
The President of the Family Division
(Dame Elizabeth Butler—Sloss)
Lord Justice Brooke
Vice—President of the Court of Appeal, Civil Division
Lord Justice Latham
B3/2003/1041
MR RICHARD ROBERTS (instructed by Norton Peskett Solicitors) appeared on behalf of the Claimant
MR JULIAN WATERS (instructed by Prettys) appeared on behalf of the Appellant
This is an appeal by the defendant Simon White from a judgment of Judge Curl in the Norwich County Court on 25th April 2003 when he directed that judgment be entered for the claimant John James William Booth on the basis of 100 per cent liability in this action for personal injuries arising out of a road traffic accident in Flixton on 30th January 1999. The grounds for the defendant's appeal are that the judge was wrong to find that the claimant was not contributorily negligent in failing to make any enquiries as to the amount of alcohol which had been consumed by the drunken defendant before allowing himself to be driven by him. In granting permission to appeal on 8th July 2003, Sedley LJ said:
"I think this well—reasoned judgment, although entirely fact—based and displaying no error of approach, sets up a question which has a decent prospect of being answered in the defendant's favour: has a passenger failed to take reasonable care for his own safety if he makes no attempt to check how much has been drunk by an acquaintance, known by him to be a heavy drinker and to have been in the pub for a couple of hours, before accepting a lift with him."
The facts, as found by the judge, were along the following lines. On 30th January 1999 Mr Booth had arranged to take his wife out locally in the evening. He and his wife had arranged for their daughter to baby—sit for them. At about 12.35pm he and Mr White went to the Morning Star public house in Lowestoft. He bought Mr White a pint of Heineken lager. At about 1.15pm Mr White left the pub to play football in the Lowestoft District League. Mr Booth remained there, consuming two to three pints of lager an hour. Between 4.30pm and 5pm Mr White came back, and Mr Booth bought him another pint of lager. Mr Booth did not know what further alcohol Mr White consumed, except that he was aware that he had won a pint of lager from a game of pool. He did not pay attention to what Mr White was drinking, but he knew he was habitually a heavy drinker. He told the judge that Mr White could handle drink better than he could. There was a question and answer in the course of Mr Booth's evidence:
"Q. And you do recognise that if you drink 5 or 6 pints, that is going to impair your driving ability?
A. It certainly would mine, yes.
Q. Yes, and it would Mr White's, would it not?
A. I suppose it would do."
At about 6.15pm Mrs Booth came into the pub. She berated her husband for his drunkenness. She said he was not to come home in his present state. During the course of her evidence there was this passage:
"Q. And it was obvious to you that John was drunk. Did you see Mr White?
A. Yes.
Q. And how did he appear?
A. Normal, fine.
Q. Was there anything about his behaviour that suggested to you that he could not safely drive?
A. None whatsoever.
Q. And you were annoyed with your husband and returned home?
A. Very.
Q. Yes, thank you. If you wait there; there may be some further questions.
MR WATERS: Your Honour, I have no questions.
JUDGE CURL: Thank you very much, Mrs Booth, for coming."
At about 6.45pm Mr Booth allowed himself to be carried as a front seat passenger in Mr White's car. Mr White was driving, and Mr Booth was wearing a seat belt. At about 6.55pm Mr White lost control of his car as he was driving along the B1074 Road in Flixton. The car struck a telegraph pole, went through three fences, rolled and finally came to a halt at the porch of a cottage. Mr Booth suffered very serious injuries to his right leg and a reactive depression as a result of the accident, in which no other car was involved. The judge was concerned only with the question of liability.
A passage in the evidence at the trial reflected Mr Both's perception of Mr White's condition:
"Q. Was there anything in his behaviour which led you to believe that he could not drive?
A. No, not at all.
Q. Was he holding normal conversations?
A. Yes, as far as I can remember."
No evidence was called from anybody else in the public house, or in the public house car park that evening, and Mr White himself gave no evidence at the trial.
When tested for his alcohol intake after the accident, Mr White was found to have consumed nearly twice the legal limit (62 microgrammes of alcohol in 100 millilitres of breath). Primary liability was admitted, but the defence contained a plea of contributory negligence in that Mr Booth had elected to be driven in his car when he knew or ought to have known that Mr White was drunk. At the trial Mr Booth admitted that he himself had consumed between 10 and 15 pints of lager that day ("closer to 15"), and that at the time he elected to be driven by Mr White he was incapable of making any reliable judgment for his own safety. He accepted that if he had asked Mr White how much he had drunk before he got into his car, Mr White would have given him a truthful answer. He also accepted that it would have been sensible to ask this question. Mr White did not assist in the defence of the action in any way.
So much for the facts. I turn now to consider the law. The clearest exposition of the relevant principles of the law as it now stands is in the judgment of Watkins J in Owens v Brimmell (1977) 1 QB 859. In that case both the driver and his passenger had drunk about eight to nine pints of beer, and on their way home the driver lost control of his car so that it collided with a lamppost. After citing Canadian and Australian authorities and the ALI Restatement of the Law of Torts (Restatement, Second, Torts) section 406, Watkins J said at pages 866G—867A:
"… [I]t appears to me that there is widespread and weighty authority for the proposition that a passenger may be guilty of contributory negligence if he rides with the driver of a car whom he knows has consumed alcohol in such quantity as is likely to impair to a dangerous degree that driver's capacity to drive properly and safely. So, also, may a passenger be guilty of contributory negligence if he, knowing that he is going to be driven in a car by his companion later, accompanies him upon a bout of drinking which has the effect, eventually, of robbing the passenger of clear thought and perception and diminishes the driver's capacity to drive properly and carefully. Whether this principle can be relied upon successfully is a...
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