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Drink driving: court ruling on contributory negligence

A court ruling on contributory negligence in a drink driving case sets out where the law stands on liability.

The case: Campbell v Advantage Insurance Company Limited [2021] EWCA Civ 1698

On Monday 15 November, the start of Alcohol Awareness Week and also Road Safety Week, the court of appeal published its ruling on an appeal brought by Lyum Campbell against the decision of His Honour Judge Robinson QC that Lyum had contributed to his injuries by a factor of 20%.

Lyum had been out drinking with his two brothers and had drunk so much he had passed out. The brothers had been out celebrating Lyum’s birthday.

Lyum was so drunk his brothers helped him back to the car. His brother Aaron put him in the front seat of the car and shut the door. A few minutes later, Lyum opened the car door and was sick.

His two brothers went back to the club and continued to drink. About an hour later they returned to the car and Dean got in the driver’s seat and tried to start it. Aaron went back to the club to try and borrow some jump leads. When he got back, the car was gone.

Dean had managed to get the car started and had driven away. At some point between Aaron leaving to collect the jump leads and Dean starting the car, Lyum had moved from the passenger seat to the rear seat.

The car collided with a lorry after Dean had drifted onto the wrong side of the road. Dean was killed and Lyum suffered catastrophic injuries.

If a passenger gets into a car, knowing the driver is drunk, then a court is likely to find that the passenger contributed to any injuries sustained as a consequence of the drunk driving. Here, though, it is likely that Lyum had no real knowledge of what was happening at all, so how could he have had knowledge that he was exposing himself to risk?

Here the court applied the maxim: the excuse of drunkenness must be disregarded when considering contributory negligence. It is no excuse for failing to take reasonable care that the person in question was unable to take proper care as a result of voluntary intoxication. A person the worse for drink cannot demand a higher standard of care than a sober person  or plead drunkenness as an excuse for not taking the same care when drunk as would have been taken when sober.

Did Lyum consent to being driven?

If Dean had driven as soon as Aaron put Lyum in the car, Lord Justice Underhill considered he would have found it difficult to say that Lyum had consented. He was too drunk to stand and after being sick he’d passed out. The problem was that at some point, Lyum had moved from the front seat to the back seat of the car. The view was that this had probably been Dean’s idea – but Dean couldn’t have moved Lyum himself and so Lyum must have woken and understood what was happening. “If the claimant had capacity to consent to a change in position in the car then he also had capacity to consent to being driven in the car”.

The events of that night had tragic consequences for the family. Dean died in the collision, Lyum suffered life changing injuries and Aaron committed suicide.

Read the court transcript here:

Campbell v Advantage Insurance Company Ltd [2021] EWCA Civ 1698 (15 November 2021) (