Can an injured passenger claim against a drunk driver?

Despite the millions of pounds spent on anti-drink driving campaigns over many years, a significant amount of people still get into their cars and drive whilst under the influence of alcohol.

The last drink-drive figures released by the Department for Transport (DfT) before the Covid lockdown of 2020 make for depressing reading.

In 2019, as many as 250 people died in road traffic accidents in which at least one driver was under the influence of alcohol. An estimated 7,800 road users were killed or seriously injured in accidents involving one drink driver or more.

The DfT figures also showed that 6.9% of all road traffic injuries in Wales in the year were drink-driving related. The comparable percentages were 5.1% and 4.6% in England and Scotland, respectively.

Sometimes it’s easy to become apathetic about statistics, awful as they may be in terms of the information they provide. The real impact of motorists exceeding the drink-drive limit often only hits home when we know of people whose lives have been adversely affected by the actions of drunk drivers.

As a niche firm of personal injury solicitors, we regularly pursue passenger accident claims for people who’ve been injured whilst passengers in cars or other motor vehicles. Most of these claims do not involve alcohol as a factor, but a significant minority do.

Can I Claim Against a Drunk Driver?

The scenario is often this: friends go out for an evening. One of them drives, perhaps intending to leave their car at the pub or club and catch a taxi home.

At the end of the evening, despite having drunk enough to exceed the legal alcohol limit, the car owner decides to drive home. One or more of the group ends up getting a lift from their friend. The car is involved in an accident caused by its driver, and the passengers in the vehicle are injured.

• Can an injured passenger claim against their driver if they got into the car knowing the driver had drunk too much alcohol?
• What if the passenger didn’t know the driver was drunk or likely to be over the limit?
• Would the answer be different if the passenger was very drunk and had to be helped into the car by others?

These questions were considered by the Court of Appeal recently in the tragic case of Campbell v Advantage Insurance Company Ltd.

The Facts of the Case

LC was the claimant in the court case. One evening, he went out with his friends; the car driver, DB and his brother, AB. They went to a club, where they drank heavily, into the early hours of the following morning.

LC got very drunk, so DB and AB took him outside and put him in the car’s front seat. LC was so drunk he couldn’t stand up by himself. According to AB, LC went to sleep or had passed out before the car’s front passenger door was closed.

DB and AB went back to the club and drank more alcohol. Sometime later, AB and DB went back to the car.

AB took a seat in the back of the car. DB tried to start the engine but could not. AB decided to go back to the club to see if he could get some jump leads. By the time he returned, the car had gone, presumably driven by AB, with LC as a passenger. AB decided to get a taxi to take him home.

Subsequently, DB’s car was involved in an accident in the early morning hours when it crossed onto the opposite side of the road and collided with an oncoming lorry.

The driver of the car, DB, died in the accident. Passenger LC suffered catastrophic brain damage caused by his head colliding with the back of the driver’s seat. The fact that LC’s injuries happened in this way meant that at some point after AB went back into the club to try and get hold of some jump leads, LC moved from the front passenger seat into the back seat of the car.

LC suffered severe brain damage. His father brought a claim on his behalf against the motor insurers of the deceased driver, DB.

DB’s motor insurance company admitted liability for the accident. However, their legal team argued the amount of compensation to be paid to LC should be reduced for contributory negligence because:

1. LC was not wearing a seatbelt at the time of the accident
2. He allowed himself to be driven by DB even though he knew DB had been drinking during the evening and into the early hours of the next day.

At the case’s first hearing, the court decided LC was not wearing a seatbelt when the accident happened. It also decided, in this case, wearing one would have made no difference to the extent of LC’s injuries. Expert accident reconstruction evidence suggested the nature of the collision was such that LC would have still suffered catastrophic injuries in any event.

On the second point, the court decided LC should have realised that his friend DB had drunk too much alcohol (and smoked too much cannabis) to drive the car safely. Accordingly, the judge reduced LC’s damages (compensation) by 20% for contributory negligence.

The Appeal

LC’s lawyers appealed the decision because, they said, LC was so drunk himself that he could not have known whether DB had drunk so much that he was unfit to drive or not. As an alternative ground for the appeal, they also argued that any reduction of damages should be less than 20% in any event.

The Court of Appeal upheld the original decision. The judges on appeal decided that:

1. The original trial judge was entitled to find that LC had the mental capacity to decide whether or not DB was unfit to drive. LC must have woken up (or been woken up by DB) to move from the front to the car’s back seat. LC’s actions were to be judged by the standard of a ‘reasonable, prudent and competent adult’.
2. In other words, a reasonable, prudent and competent adult who found himself in LC’s shoes would have realised during the short period when he moved from the front seat to a back seat that DB was unfit to drive because he had drunk too much.
3. The judge applied the ‘reasonable, prudent and competent person’ test appropriately.
4. He was also entitled to assess the passenger’s contributory negligence at 20%.

Conclusion

• Regardless of whether a passenger is drunk or not, a driver who causes an accident will invariably carry the lion’s share of responsibility for the accident.
• When a passenger decides to be driven by a driver they knew or ought to have known was drunk,  a court will reduce the amount of compensation they receive in any subsequent claim for compensation for contributory negligence.
• The court will set contributory negligence at 20% in most cases.
• A claimant passenger cannot expect to avoid a finding of contributory negligence by relying on the fact that they were too drunk to assess whether the driver was over the legal alcohol limit for driving.
• The assessment of whether the driver was fit to drive is that of a ‘reasonable, prudent and competent adult (passenger).’
• The claimant passenger is not under a duty to ask the driver how much he has had to drink to determine whether he has consumed too much alcohol to drive safely.
• A passenger who fails to wear a seatbelt can expect their compensation claim to be reduced by 25% if the court decides a seatbelt would have prevented all their injuries.  Contributory negligence will generally be assessed at 15% if wearing a seatbelt could have prevented some of the passengers’ injuries.

Passenger accident claims and drunk drivers

From reading this article, it will be apparent that the law applying to passenger compensation claims where driver and passenger have been drinking is not straightforward. The main point to remember is the driver will always carry the more significant share of responsibility for the accident. Any deductions from compensation will be for contributory negligence of between 15% and 25%. Even if passenger damages are reduced by 25%, it is still worth making a claim.

By taking legal advice from a specialist road traffic accident personal injury solicitor, you will determine whether your claim will be affected by a reduction in compensation for contributory negligence.

At Mooneerams, we are specialist personal injury solicitors. We have extensive experience in handling passenger accident claims on behalf of clients from all over the country. We deal with most personal injury claims using No Win No Fee agreements. Call us on 029 2048 3615 or contact us by filling in the form on this page and sending your details.