A Drunk Driver's Passengers May Themselves Be Negligent - Cautionary Tale

Those who allow themselves to be driven by motorists who are obviously drunk are likely to be held at least partially responsible for their own injuries if the journey ends in disaster. The Court of Appeal made that point in a guideline case.

The case concerned a young man who was a rear-seat passenger in a friend's car when it was involved in a high-speed collision with a lorry. He suffered catastrophic brain damage and his friend died. Both of them had earlier that night been drinking heavily in a nightclub, to the point where the man passed out. He had been placed in the car by others about an hour before the fateful journey began.

The friend's motor insurers accepted primary liability for the accident. Following a trial, however, a judge made a finding of 20 per cent contributory negligence against the man on the basis that he had permitted himself to be driven by the friend, who had plainly been drinking to excess. The ruling meant that the man's eventual compensation award would be reduced by that percentage.

That decision was challenged and it was argued that the man was himself so drunk at the time that he could not be said to have volunteered to be driven by his friend. In dismissing the appeal, however, the Court noted the historic reluctance of judges to find that drunkenness is a characteristic that should be taken into account when assessing whether a person has taken reasonable care for his or her own safety.

The Court accepted that people who are unconscious through drink when placed in a car will not be guilty of contributory negligence because they are not voluntary passengers. However foolish it may be to drink yourself into a stupor, you cannot be taken to have consented to things that are done to you while in such a state. Even a person who is not totally unconscious may be incapable of decision-making.

However, the Court ruled that the judge was entitled to find on the evidence that, by the time car set off, the man had sobered up sufficiently to know what was going on. He thus consented to being driven by his friend and his conduct was voluntary. It would have been evident to a reasonable, prudent and competent adult that the friend was too drunk to drive safely.