‘Tis the season to be jolly, but also ‘tis the season to take reasonable care for your own safety

With Christmas 2020 characterised by Covid cancellations, the clamour for festive parties a year on is palpable.

And given the green light by the Government to do so, many businesses will be taking the opportunity to toast the endeavours of their employees in bars and restaurants ahead of closing for the holidays.

The experience will undoubtedly prove a welcome slice of Christmas past but – without wishing to sound Grinch-like – there is a need for people to exercise caution amidst the cocktails and cracker pulling.

Unfortunately, the return of the office party may also herald a re-emergence of phrases such as “I’ve only had a couple”, “I’ll be fine” and “it’s only a short drive”. At any other given time, such utterings from the mouth of an obviously drunk colleague – coupled with the offer of a lift – would rightly set alarm bells ringing. However, when heard by someone who has sampled their own share of Christmas spirits, judgment can be blurred and lead to life-changing consequences.

Campbell v Advantage Insurance Company Ltd [2021] EWCA Civ 1698 serves as a stark reminder of this need to remain vigilant.

In the case of Campbell, the Court of Appeal upheld a finding of contributory negligence against a claimant who got into his drunken friend’s vehicle whilst so drunk it would be reasonable to believe he may not have appreciated the extent of the risk he was taking.

In dismissing the claimant’s appeal, Lord Justice Underhill cited paragraph 38 of McHugh J’s judgment in Joslyn v Berryman as conforming to the law applicable in this country: “Hence, the issue is not whether a reasonable person in the intoxicated passenger’s condition – if there could be such a person – would realise the risk of injury in accepting the lift. It is whether an ordinary reasonable person – a sober person – would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver’s intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger who is sober enough to enter the car voluntarily is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known, or could reasonably be found, to be impaired by reason of intoxication.”

The court placed emphasis on “sober enough to enter the car voluntarily” in distinguishing Campbell’s case from one where a person is so drunk that they do not even appreciate they have entered a vehicle. In that extreme circumstance, it is likely that a claimant could not be contributory negligent.

Whilst Mr Campbell had apparently drunk himself into a state of considerable intoxication meaning he was physically placed into the vehicle by his friends, the crucial facts distinguishing his case from the extreme example mentioned above were that he, with the assistance of the drunken driver, had moved from the front seat to the back in the hour between being placed in the vehicle, and the vehicle being driven away, and on that basis, he must have woken and understood what was happening.

In agreeing with the findings at first instance, the Judge said: “…if the Claimant had capacity to consent to a change of position in the car, then in my judgment he also had capacity to consent to being driven in the car … [and] it would have been evident to a sober person that Dean Brown was too drunk to drive safely.”

The decisions of the parties involved that night arguably cost three lives. The driver was killed instantly in a collision, the claimant suffered devastating brain injuries, and a third friend, who was not in the vehicle at the time of the accident, took his own life prior to the Trial.

The finding of contributory negligence means Mr Campbell will lose 20% of the damages he will desperately need to fund a lifetime of care, rehabilitation, and lost earnings.

One cannot help observing that this all could have been avoided had he initially taken reasonable care for his own safety and opted for a taxi.

Merry Christmas from everyone at Accident Claims Lawyers, please take care of yourselves and others.