Owens v Brimmell

JurisdictionEngland & Wales
Date1977
CourtHouse of Lords (England)
[QUEEN'S BENCH DIVISION: CARDIFF]

OWENS v. BRIMMELL

[1974 O. No. 1078]

1976 March 31, April 1, 2; 14 Watkins J.

Road Traffic - Negligence - Contributory negligence - Drink - Passenger accompanying driver for evening visiting public houses and club - Accident caused by driver's inability through drink to control car - Passenger not wearing seat belt injured - Whether plaintiff guilty of contributory negligence - Apportionment - Law Reform (Contributory Negligence) Act 1945 (8 & 9 Geo. 6, c. 28), s. 1 (1)

The plaintiff and the defendant were friends and the plaintiff had often been driven by the defendant in the defendant's car. At about 8 p.m. they went out together and visited a number of public houses and finally a club. During the course of the evening, the defendant estimated that they had both drunk

[Reported by ROBERT WILLIAMS, ESQ., Barrister-at-Law]

about 8 to 9 pints of beer. At about 2 a.m. the following day, the defendant, who was driving the plaintiff home from the club, lost control of the car with the result that the car collided with a lamp-post. The plaintiff, who was not wearing a seat belt, received a heavy blow on the face either from the facia board of the car while still sitting in the front passenger's seat or from hitting the lamp-post when he was partially thrown from the car on impact. He suffered very serious injuries including severe impairment of intellect but the brain damage was not necessarily due to the blow to the head and could have resulted from a whiplash injury. In the plaintiff's action for damages, the defendant admitted that he had been negligent but alleged that the plaintiff had been guilty of contributory negligence in failing to wear a seat belt and in accepting a lift knowing, or being reckless to the possibility, that the defendant's ability to drive was impaired by drink:-

Held, (1) that, since the defendant had not proved on a balance of probabilities that, if the plaintiff had worn a seat belt, the plaintiff's injuries would have been less serious, there would be no reduction in the amount of damages due to the plaintiff owing to his failure to wear a seat belt (post, pp. 863H - 864B).

Froom v. Butcher [1976] Q.B. 286, C.A. applied.

(2) That a person who accepted a lift in a car might be guilty of contributory negligence if either he knew that the driver had consumed alcohol in such quantity as was likely to impair to a dangerous degree the driver's capacity to drive properly and safely or, knowing that he would be given a lift in the car, accompanied the driver on a bout of drinking which had the effect eventually of affecting the passenger's clear thought and perception and diminished the driver's capacity to drive carefully; that the probabilities were that, at the time the plaintiff accepted the lift home, his powers of thought and perception were affected by drink; that, if the plaintiff was not so affected by drink, he should have foreseen the danger of accepting a lift in the defendant's car and, therefore, although the defendant had to take the greater responsibility, the plaintiff had been guilty of contributory negligence and the amount of damages would be reduced by 20 per cent. (post, pp. 866H - 867C, G-H).

Insurance Commissioner v. Joyce [1948] 2 A.L.R. 356; 77 C.L.R. 39; Car and General Insurance Corporation Ltd. v. Seymour and Maloney [1956] S.C.R. 322 and Miller v. Decker[1957] S.C.R. 624 applied.

The following cases are referred to in the judgment:

Car and General Insurance Corporation Ltd. v. Seymour and Maloney[1955] 1 D.L.R. 824; [1956] S.C.R. 322.

Dann v. Hamilton [1939] 1 K.B. 509; [1939] 1 All E.R. 59.

Dawrant v. Nutt [1961] 1 W.L.R. 253; [1960] 3 All E.R. 681.

Froom v. Butcher [1976] Q.B. 286; [1975] 3 W.L.R. 379; [1975] 3 All E.R. 520, C..A.

Insurance Commissioner v. Joyce [1948] 2 A.L.R. 356; 77 C.L.R. 39.

Miller v. Decker (1954) 13 W.W.R.(N.S.) 642; [1957] S.C.R. 624.

Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B. 264; [1956] 3 W.L.R. 232; [1956] 2 All E.R. 625, C.A.

Swan v. North British Australasian Co. Ltd. (1863) 2 H. & C. 175.

No additional cases were cited in argument.

ACTION

The plaintiff, Roger Henry Owens, a patient, brought this action by his father and next friend, Kenneth Morgan Owens, for damages for personal injury and loss arising out of an accident caused by the negligent driving of the defendant, Jeffrey Brimmell, on August 11, 1973. The defendant admitted liability, but alleged contributory negligence on the part of the plaintiff in that he failed to wear a seat belt, and in that he knew or was reckless as to the possibility that the defendant's ability to drive was impaired through drink.

The facts are stated in the judgment.

T. Michael Evans Q.C. and Thomas Crowther for the plaintiff.

Piers Ashworth Q.C. and John Prosser for the defendant.

Cur. adv. vult.

April 14.WATKINS J.read the following judgment. The plaintiff, by his father and next friend, brings a claim for damages against the defendant for serious injuries he received at about 2 a.m. on August 11, 1973, when he was a passenger in a Ford Escort motor car owned and then being driven by the defendant.

The defendant admits liability but qualifies this admission by contending that the sum of damages found due to the plaintiff should be reduced by the plaintiff's negligent failure to take care of himself, first by not wearing the seat belt which was available in the car for his use and, secondly by riding as a passenger in a car when he knew that the defendant's ability to drive it with proper care was impaired by the amount of alcohol which the defendant had consumed during the period of about five hours which preceded the collision of the car with a lamp standard.

I have, therefore, to decide three issues, which are: one, the total sum of damages which the plaintiff should receive; two, by what percentage, if any, should that sum be reduced through the plaintiff's failure to use a seat belt; and three, by what percentage, if any, should that sum be reduced by reason of the plaintiff's alleged knowledge of the impairment, through drink, of the defendant's fitness to drive. I propose to deal first with the issues of contributory negligence.

At the time of the accident the plaintiff was about 20 years of age. He was a friend of the defendant, who is of a similar age. They used to meet one another fairly frequently. At times they drank together in various public houses and clubs in the city of Cardiff. Upon some of those occasions they travelled in the defendant's car. The plaintiff, who does not drive, although he has been taught to do so, knew what seat belts were for. He had made use of them now and again as, so he said, had the defendant. The plaintiff was also able to tell me, despite the serious damage to his intellect caused by the...

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