As expert road traffic accident lawyers we are often asked to help innocent passengers who have sustained injuries caused by the driver of their vehicle. This often causes some upset because either a family member or a close friend was driving at the time and the passenger would have to make a formal claim against them.

Despite that when the injuries are serious enough to merit an award of compensation then a claim for compensation should be made as any award for personal injuries is likely to outweigh the increase in the insurance premium at next renewal.

But what should happen if the passenger was travelling in a vehicle being driven by a driver under the influence of drink?

The starting point for this is to consider that prior to 1945 if there was any finding that a claimant had contributed to their misfortune in any way then this could be an absolute defence to a claim for compensation for personal injuries. This was deemed to give a grossly unfair result and so by law this was changed to allow such cases to be decided on a percentage split. In other words if a claimant was found to have contributed to the accident or their injuries the award could be reduced by an appropriate percentage to take account of this culpability.

Cases such as Froome v Butcher for example show that were a seatbelt is not worn a deduction of up to 25% should be made to reflect the fact that the injured passenger has been partly responsible for their own injury.

So what happens if a passenger is injured whilst travelling in vehicle where they have some knowledge the driver could be under the influence of drink?

The first thing to consider is whether the injured passenger should be able to claim at all or in other words does the legal defence of volenti non fit injuria, which is just latin for “there is no injury to a volunteer”, apply. This defence was ruled out by s148 of the Road Traffic Act 1972 so this means that a driver cannot escape full liability by saying the passenger knew he was drunk and accepted the risk.

The law however has recognised that some account should be taken of the actions of the claimant by putting themselves at the  risk of injury for being carried in such a vehicle. The lead case on the point was actually decided in 1977 and is Owens v Brimmell where the Judge set out a legal framework that is still used today when he reduced the award by 20% giving the following reasoning:-

…thus, it appears to me that there is widespread and weighty authority for the proposition that a passenger may be guilty of contributory negligence if he rides with the driver of a car who he knows has consumed alcohol in such quantity as is likely to impair to a dangerous degree that driver’s capacity to drive properly and safely. So, also, may a passenger be guilty of contributory negligence if he, knowing that he is going to be driven in a car by his companion later, accompanies him upon a bout of drinking which has the effect, eventually, of robbing the passenger of clear thought and perception and diminishes the driver’s capacity to drive properly and carefully. Whether this principle can be relied upon successfully is a question of fact and degree to be determined in the circumstances of which the issue is said to arise.”

So if a passenger knows the driver is impaired or engages in a bout of drinking with them a reduction of 20% would be likely.

This case however was decided some forty years ago and it is questionable whether a court should now take a dimmer view of anyone engaging in drink driving or being carried in such a vehicle with some knowledge.

Some later  cases have given higher awards particularly where the circumstances of the case merit a larger deduction for contributory negligence. A 30% reduction was for example incurred where the claimant had climbed into the boot of the vehicle clearly exposing himself to an even greater risk of injury.

Comments have been made in other cases by Judges that tend to suggest that in appropriate circumstances the “normal” 20% reduction should be exceeded. It would be very difficult for example to resist such a finding where the Claimant had embarked on a drinking session with the Defendant when both became completely drunk and the claimant passenger encouraged the drunk defendant to drive him home.

Such a circumstance led to a 75% reduction for contributory negligence when a “domineering” 38 year old male persuaded a 23 year old female to drive knowing full well that she was drunk.

Conclusion

As expert road traffic accident lawyers we are often asked to help pick up the pieces following a whole spectrum of accident circumstances. Acting for a passenger is normally straightforward as they had no control over the driving exhibited by the driver or the vehicle that eventually crashes and causes injury.

In a case where the passenger knew or ought reasonably to have known the driver could be under the influence we could advise clients to consider a reduction for contributory negligence. The passenger did not have an obligation to interrogate the driver as to their inebriated state but if it was obvious then the reduction could be inescapable.

In circumstances that showed some further culpability such as being carried in the boot or where the passenger caused the inebriation then a reduction of the award of up to 75% could be expected.