Campbell v Advantage Insurance Company Ltd  EWCA Civ 1698
This case has been summarised on 39 Essex Chambers, 'Mental Capacity Report' (issue 118, December 2021).
The WLR Daily case summaries
Court of Appeal
Campbell (by his father and litigation friend) v Advantage Insurance Co Ltd
2021 Oct 19; Nov 15
Underhill, Baker, Dingemans LJJ
Road Traffic— Negligence— Contributory negligence— Claimant and friends on night out drinking heavily— Claimant taking back passenger seat in car driven by drunken friend— Claimant seriously injured in fatal road traffic accident— Judge finding claimant should have appreciated driver too drunk to drive safely— Judge apportioning contributory negligence at 20 %— Whether claimant able to rely on own drunkenness and consequential lack of insight to avoid finding of contributory negligence — Whether apportionment of responsibility should be reduced
The claimant had been out celebrating in a nightclub with two friends who took him back to the car and placed him in the front passenger seat. Later the driver returned and drove off drunk. The vehicle was involved in a collision which killed the driver and caused catastrophic brain injury to the claimant who at the time was unrestrained in the rear passenger seat. The driver's insurer admitted liability. At the trial of quantum, the judge found that the claimant had capacity to consent to a change of position in the car and most likely had been voluntarily helped into the back of the car by the driver, and so had capacity to consent to being driven in the car; that applying the test of a reasonable, prudent and competent person the claimant had been contributorily negligent and that a reduction of 20 per cent for contributory negligence was appropriate.
On the claimant’s appeal —
Held, appeal dismissed. It was clear that the law in the jurisdiction had come down against treating the fact that the claimant was drunk as a characteristic that could be taken into account in deciding whether he or she took reasonable care for their own safety. The test of whether a person had breached a duty of care in negligence was an objective standard. The standard normally set "is that of a reasonable and prudent man". That was the objective standard applied to the driver when judging his driving of the motor car. As a matter of principle, it was not obvious why a different standard should be applied to the claimant when assessing whether there was any contributory negligence on his part when he agreed to be driven by the driver. The fact that the claimant would not have agreed to be driven by the driver if he had been sober did not assist him if an objective standard was applied. The judge was right to judge his actions at the relevant time by the standards of a reasonable, prudent and competent adult. A reasonable, prudent and competent man in the claimant’s position as he assisted the driver to move him from the front passenger seat to the back seat of the motor car would have appreciated that the driver had drunk too much to drive safely. The finding of contributory negligence was therefore properly made by the judge. For the same reasons the judge was right to make the assessment of apportionment of responsibility by using an objective standard of the reasonable, prudent and competent adult to judge both the driver and the claimant's responsibility for the injuries suffered by the claimant (paras 31–33, 36–39, 42–43, 44–45, 46, 47, 48, ).
Owens v Brimmell  QB 859Not on Bailii! approved
Joslyn v Berryman  HCA 34 considered.
Decision of Judge Robinson sitting as a High Court judgeB;  RTR 19 affirmed.
John Ross QC (instructed by Novum Law, Swindon) for the claimant.
Christopher Kennedy QC and Matthew Snarr (instructed by Keoghs LLP) for the defendant.
Alison Sylvester, Barrister.