In Campbell v Advantage the father of a man who suffered catastrophic brain injuries in a car accident failed in his appeal to challenge a finding of contributory negligence in his son's personal injury action. Mr Campbell suffered catastrophic brain damage when the car he was travelling in as a passenger crossed on to the wrong side of the road and collided with a lorry travelling in the opposite direction.

The driver of the car was drunk at the time of the collision. It was held that Mr Campbell was contributorily negligent in getting into the car of an evidently drunk individual. Although Mr Campbell was also drunk at the time of the incident, the judge held this did not displace the objective test for contributory negligence.


Mr Campbell had been drinking with two friends in the night leading up to the car accident, one of whom was driving the car involved in the accident. The group had drunk at various locations before ending up at a nightclub. It was found that the claimant had to be carried to the car as he was "very drunk" and couldn't stand on his own. He was placed in the front passenger seat by his friends who then returned to the club. They returned to the car an hour later.

The driver was killed in the collision. A toxicology report found the driver had consumed cannabis before his death and had 176mg/dl concentration of alcohol in his system, over double the legal limit. Although the claimant had been placed in the passenger seat, he was in the back seat of the car when the collision occurred.

An action was brought against the driver's insurance company, Advantage Insurance Company Ltd.


Liability was admitted but Advantage, the defendant, contended a reduction should be made for contributory negligence as Mr Campbell, the claimant; 1) was not wearing a seatbelt, and 2) allowed himself to be driven by a person who had obviously been drinking to excess.

The claimant's injuries meant that he was unable to give evidence at trial. The surviving friend who was not involved in the collision provided statements as to the circumstances before trial but had also died by the time of the trial.

Due to a lack of direct witness evidence, it was unclear how the claimant had moved from the front passenger seat to the back seat. The trial judge found it was unlikely that the claimant had either sobered up sufficiently to move himself or that he had been moved by the driver alone. He found it most likely that the claimant was awake when moved and had been assisted by the driver.

The judge found that the issue of the seatbelt was not causative but did find that the claimant should have appreciated his friend had drunk too much alcohol to be fit to drive and assessed contributory negligence at 20%.

The trial judge referred to the principle that a person must be assumed to have capacity unless it is established that he lacks capacity. The judge held that the evidence of Mr Campbell's alcohol consumption was insufficient to displace the presumption of capacity. He founds that the move from the front passenger seat to the back seat was simple and the claimant must have been aware of what was happening. If he had capacity to consent to the change in position, then he also had capacity to consent to being driven in the car.

As the claimant had capacity, the test for contributory negligence was objective – what a reasonable man in the claimant's shoes would have done. The judge found a reasonable man would have made an assessment of the driver's fitness to drive and inevitably concluded he had consumed so much alcohol that their ability to drive safely was impaired.


The claimant's father appealed the decision. The issues at the appeal were ;

  • was the test for capacity wrongly applied and effectively reversed the burden of proof for contributory negligence;
  • whether the judge's findings of fact were properly made due to the lack of witness evidence;
  • whether the test of an objective, competent and prudent passenger was correctly applied given the claimant was drunk; and
  • whether the assessment of 20% contributory negligence should be reduced.

It was held that the test of capacity had been correctly applied by the judge. Further, the judge had been well aware of the limitations of the evidence in the trial due to the lack of evidence from the claimant or the driver and the lack of oral evidence from the third friend. His findings of facts were properly made, based on the known facts and reasonable inferences drawn from those facts.

In relation to the test for contributory negligence, it was held that this was an objective standard. The correct standard was that of a reasonable, prudent and competent adult. It was commented that a person unconscious through drink who is put in a car by others and is then driven by an evidently drunken driver will not be guilty of contributory negligence as they have not done a voluntary act. Therefore, had the driver driven the car immediately following the claimant's placement in it, it is unlikely he would have been found contributorily negligent. His capacity to consent to the drive was evidenced by his capacity to consent to a change in seat position.

Finally, the appeal judges found the apportionment of responsibility was a decision for the trial judge which would only be interfered with if it exceeded the ambit where reasonable disagreement was possible and the court below had gone wrong. There was nothing to show the trial judge's apportionment was wrong and so the 20% reduction stood.


This case is a reminder that the test for contributory negligence is objective, and an injured person's voluntary conduct is not necessarily a factor to be taken into account where they are found to have capacity (or at least not found to have been incapacitated). That said, the question of where to draw the line between voluntary and involuntary conduct is tricky and will be fact sensitive for each case.


Lynn Livesey

Legal Director