Mr Lyum Roy Campbell (A protected party who proceeds by his father and litigation friend Donald Campbell) v Advantage Insurance Company Ltd
| Jurisdiction | England & Wales |
| Neutral Citation | [2021] EWCA Civ 1698 |
| Year | 2021 |
| Court | Court of Appeal (Civil Division) |
2021 Oct 19; Nov 15
Negligence - Contributory negligence - Objective standard - Claimant when drunk allowing himself to be driven by drunk driver - Claimant seriously injured in road traffic accident - Whether claimant guilty of contributory negligence - Whether objective test to be applied to question of contributory negligence - Whether fact that claimant had been drunk at relevant time to be taken into account
The claimant had been drinking heavily in a nightclub with two friends. Since he was unable to stand on his own, his friends walked him back to the car and placed him in the front passenger seat before returning to the nightclub. About an hour later one of the claimant’s friends returned to the car, moved the claimant into the back passenger seat and drove off drunk. The vehicle was involved in a collision which killed the driver and caused catastrophic brain injury to the claimant. The defendant insurer admitted liability. At the trial of quantum, the judge found that in allowing himself to be driven by an intoxicated driver the claimant had been contributorily negligent and that accordingly the damages recoverable by the claimant should be reduced by 20%. In determining whether the claimant had been contributorily negligent and in assessing the apportionment of responsibility the judge applied to the claimant the standard of a reasonable, prudent and competent adult. The claimant appealed, contending that the judge had been wrong to apply an objective test to questions of contributory negligence.
On the appeal—
Held, dismissing the appeal, that, when assessing whether and to what extent a claimant had been guilty of contributory negligence, an objective test was to be applied, judging the claimant’s actions at the relevant time by the standards of a reasonable, prudent and competent adult; that the fact that the claimant had been drunk at the relevant time was not a characteristic that could be taken into account in answering the primary question in any case where contributory negligence was in issue, namely whether the claimant had taken reasonable care for his or her own safety; that that principle applied to the case of a claimant who had been injured as a result of agreeing to be driven by an intoxicated driver; that it followed that if an ordinary reasonable person who was sober would have known that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who was sober enough to enter the car voluntarily was guilty of contributory negligence; that, therefore, the judge in the present case had been right to assess the claimant’s actions at the relevant time by the standards of a reasonable, prudent and competent adult; that, on the facts, the finding of contributory negligence had been properly made, since a reasonable, prudent and competent adult in the position of the claimant as he assisted the driver to move him from the front passenger seat to the back seat of the car would have appreciated that the driver had drunk too much to drive safely, and there was nothing to show that the judge’s apportionment of responsibility had been wrong; and that, accordingly, the judge had been entitled to find that the damages recoverable by the defendant should be reduced by 20% (post, paras 36–46, 47, 48, 50–51).
The following cases are referred to in the judgments:
Booth v White
FAGE UK Ltd v Chobani UK Ltd
Gul v McDonagh
Jackson v Murray
Joslyn v Berryman [
McPherson v Whitfield [
Masterman-Lister v Brutton & Co (Nos 1 and 2)
Morton v Knight [
Owens v Brimmell [
The following additional cases were cited in argument or were referred to in the skeleton arguments:
ACLBDD Holdings Ltd v Staechelin (Note)
Admiralty Comrs v SS Volute [
Benmax v Austin Motor Co Ltd [
Biogen Inc v Medeva plc [
Brignall v Kelly (unreported) 17 May 1994,
Drage v Smith [
Froom v Butcher [
Glasgow Corpn v Muir [
Henderson v Foxworth Investments Ltd
Insurance Comr v Joyce (
Jones v Livox Quarries Ltd [
Lewis v Denye [
Liepins v Spearman [
Lunt v Khelifa
Malone v Rowan [
Swan v North British Australasian Co Ltd (
APPEAL from Judge Robinson sitting as a judge of the Queen’s Bench Division
By his father and litigation friend Donald Campbell the claimant, Lyum Roy Campbell, brought a claim for damages for personal injury sustained in a road traffic accident against the defendant insurer, Advantage Insurance Co Ltd. The defendant admitted liability and a trial was held as to quantum. By a decision dated 14 August 2020 Judge Robinson sitting as a judge of the Queen’s Bench Division found that the claimant had been contributorily negligent and assessed his responsibility at 20% [2020] EWHC 2210 (QB); [2021] RTR 19.
By an appellant’s notice and with permission of the judge the claimant appealed on the grounds that: (1) the judge had wrongly applied a test of capacity under the Mental Capacity Act 2005 and had reversed the burden of proof in relation to the issue of contributory negligence; (2) the judge had made findings of fact which were based on impermissible speculation having regard to the known unknowns and unknown unknowns in the case; (3) the judge had wrongly applied an objective test when assessing whether the claimant was guilty of contributory negligence; and (4), in any event, the judge had wrongly assessed the claimant’s contributory negligence too highly at 20%.
The facts are stated in the judgment of Dingemans LJ, post, paras 1–8.
John Ross QC (instructed by
Christopher Kennedy QC and Matthew Snarr (instructed by
The court took time for consideration.
15 November 2021. The following judgments were handed down.
DINGEMANS LJ
Introduction1 The appeal in this very sad case raises a short but interesting point of law about whether a claimant can rely on his own drunkenness, and consequential lack of insight, either to avoid a finding of contributory negligence or to reduce the apportionment of responsibility for his contributory negligence.
2 In the early morning of Tuesday 9 August 2016 Mr Lyum Campbell, the claimant, then aged 31 years, was an unrestrained back seat passenger in a three-door Seat Ibiza motor car being driven by Mr Dean Brown, who was insured by Advantage Insurance Co Ltd, the defendant (“Advantage”). In the evening of Monday 8 August 2016 and in the early hours of Tuesday 9 August 2016 Mr Lyum Campbell had been celebrating with his friends Mr Dean Brown and Mr Dean Brown’s brother, Mr Aaron Brown. They had all been drinking at the Moo Moo nightclub in Cheltenham which was some 9.3 miles from the site of the collision.
3 At the time of the collision Mr Dean Brown was driving the Seat Ibiza motor car on the A40 in the direction of Oxford from Cheltenham. At 03.53 hours Mr Dean Brown crossed on to the wrong side of the road and collided with a lorry being driven in the opposite direction. It was a high speed collision with a combined closing speed between the two vehicles of between 99 and 114 mph.
4 The collision had tragic consequences for Mr Lyum Campbell, Mr Dean Brown and Mr Aaron Brown. Mr Lyum Campbell’s head collided with the back of the driver’s seat and he suffered catastrophic brain damage. His father, Mr Donald Campbell, now acts as his litigation friend. Mr Dean Brown was killed in the collision. Mr Aaron Brown was not in the car at the time of the collision, and although he provided witness statements in this action, he took his own life before the hearing of the trial below.
5 Liability for Mr Lyum Campbell’s claim for damages arising from the accident was admitted by Advantage. Advantage contended, however, that Mr Lyum Campbell’s damages should be reduced for contributory negligence in that: (1) he was not wearing a seat belt; and (2) he had allowed himself to be driven by Mr Dean Brown when Mr Dean Brown had obviously been drinking to excess at the nightclub.
6 The trial on the issue of contributory negligence was heard on 11, 12 and 13 March 2020 before Judge Robinson sitting as a High Court judge (“the judge”). Although there was a full police investigation and report there was an absence of direct evidence. This was because Mr Dean Brown was dead and Mr Lyum Campbell was, because of his catastrophic injuries, unable to give evidence. Mr Aaron Brown had given witness statements to both the solicitors acting on behalf of Mr Lyum Campbell and on behalf of Advantage. As Mr Aaron Brown had died before the trial, his statements to the solicitors were admitted as hearsay evidence.
7 By a judgment dated 14 August 2020 the judge found that Mr Lyum Campbell was not wearing a seat belt, but that the failure to wear the seat belt had no causative effect, because the evidence as a whole, including some expert collision investigation and expert...
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