England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM NORWICH COUNTY COURT
(JUDGE CURL)

		Royal Courts of Justice Strand London, WC2
		18 November 2003

1. LORD JUSTICE BROOKE: This is an appeal by the defendant Simon White from a judgment of Judge Curl in the Norwich County Court on 25th April 2003 when he directed that judgment be entered for the claimant John James William Booth on the basis of 100 per cent liability in this action for personal injuries arising out of a road traffic accident in Flixton on 30th January 1999. The grounds for the defendant's appeal are that the judge was wrong to find that the claimant was not contributorily negligent in failing to make any enquiries as to the amount of alcohol which had been consumed by the drunken defendant before allowing himself to be driven by him. In granting permission to appeal on 8th July 2003, Sedley LJ said:

"I think this well- reasoned judgment, although entirely fact- based and displaying no error of approach, sets up a question which has a decent prospect of being answered in the defendant's favour: has a passenger failed to take reasonable care for his own safety if he makes no attempt to check how much has been drunk by an acquaintance, known by him to be a heavy drinker and to have been in the pub for a couple of hours, before accepting a lift with him."

2. The facts, as found by the judge, were along the following lines. On 30th January 1999 Mr Booth had arranged to take his wife out locally in the evening. He and his wife had arranged for their daughter to baby- sit for them. At about 12.35pm he and Mr White went to the Morning Star public house in Lowestoft. He bought Mr White a pint of Heineken lager. At about 1.15pm Mr White left the pub to play football in the Lowestoft District League. Mr Booth remained there, consuming two to three pints of lager an hour. Between 4.30pm and 5pm Mr White came back, and Mr Booth bought him another pint of lager. Mr Booth did not know what further alcohol Mr White consumed, except that he was aware that he had won a pint of lager from a game of pool. He did not pay attention to what Mr White was drinking, but he knew he was habitually a heavy drinker. He told the judge that Mr White could handle drink better than he could. There was a question and answer in the course of Mr Booth's evidence:

"Q. And you do recognise that if you drink 5 or 6 pints, that is going to impair your driving ability?

A. It certainly would mine, yes.

Q. Yes, and it would Mr White's, would it not?

A. I suppose it would do."

At about 6.15pm Mrs Booth came into the pub. She berated her husband for his drunkenness. She said he was not to come home in his present state. During the course of her evidence there was this passage:

"Q. And it was obvious to you that John was drunk. Did you see Mr White?

A. Yes.

Q. And how did he appear?

A. Normal, fine.

Q. Was there anything about his behaviour that suggested to you that he could not safely drive?

A. None whatsoever.

Q. And you were annoyed with your husband and returned home?

A. Very.

Q. Yes, thank you. If you wait there; there may be some further questions.

MR WATERS: Your Honour, I have no questions.

JUDGE CURL: Thank you very much, Mrs Booth, for coming."

3. At about 6.45pm Mr Booth allowed himself to be carried as a front seat passenger in Mr White's car. Mr White was driving, and Mr Booth was wearing a seat belt. At about 6.55pm Mr White lost control of his car as he was driving along the B1074 Road in Flixton. The car struck a telegraph pole, went through three fences, rolled and finally came to a halt at the porch of a cottage. Mr Booth suffered very serious injuries to his right leg and a reactive depression as a result of the accident, in which no other car was involved. The judge was concerned only with the question of liability.
4. A passage in the evidence at the trial reflected Mr Both's perception of Mr White's condition:

"Q. Was there anything in his behaviour which led you to believe that he could not drive?

A. No, not at all.

Q. Was he holding normal conversations?

A. Yes, as far as I can remember."

No evidence was called from anybody else in the public house, or in the public house car park that evening, and Mr White himself gave no evidence at the trial.

5. When tested for his alcohol intake after the accident, Mr White was found to have consumed nearly twice the legal limit (62 microgrammes of alcohol in 100 millilitres of breath). Primary liability was admitted, but the defence contained a plea of contributory negligence in that Mr Booth had elected to be driven in his car when he knew or ought to have known that Mr White was drunk. At the trial Mr Booth admitted that he himself had consumed between 10 and 15 pints of lager that day ("closer to 15"), and that at the time he elected to be driven by Mr White he was incapable of making any reliable judgment for his own safety. He accepted that if he had asked Mr White how much he had drunk before he got into his car, Mr White would have given him a truthful answer. He also accepted that it would have been sensible to ask this question. Mr White did not assist in the defence of the action in any way.
6. So much for the facts. I turn now to consider the law. The clearest exposition of the relevant principles of the law as it now stands is in the judgment of Watkins J in Owens v Brimmell (1977) 1 QB 859. In that case both the driver and his passenger had drunk about eight to nine pints of beer, and on their way home the driver lost control of his car so that it collided with a lamppost. After citing Canadian and Australian authorities and the ALI Restatement of the Law of Torts (Restatement, Second, Torts) section 406, Watkins J said at pages 866G- 867A:

"... [I]t 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 whom 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 out of which the issue is said to arise."

At page 864C Watkins J cited Lord Denning MR's dictum in Froom v Butcher (1976) QB 286, 291:

"Contributory negligence is a man's carelessness in looking after his own safety. He is guilty of contributory negligence if he ought reasonably to have foreseen that if he did not act as a reasonable prudent man he might be hurt himself..."

7. The burden of proving contributory negligence rests on the defendant (Malone v Rowan [1984] 3 All ER 402, Russell J).
8. In Brignall v Kelly (CAT 17th May 1994) this court upheld the judgment of a trial judge in a case of this type. The judge had held that the defendant had not established that the plaintiff was in any way guilty of a want of proper care for his safety. Following an accident in which the driver had lost control of his car, a blood sample taken two- and- a- half hours after the accident showed that his blood alcohol limit was slightly more than twice the permitted maximum for driving. The defendant relied on the evidence of a professor of forensic pathology who estimated that at the start of the journey the driver would have been well into the "obviously drunk" state, although he conceded that there could be a great personal variation in the effect of alcohol on different people. The plaintiff, on the other hand, called five witnesses who all said that the defendant was behaving normally. The plaintiff, who was sober, saw the defendant drink one pint of lager and had a sensible conversation with him. As they walked to the car, he saw no overt signs to suggest to him that he was drunk. The defendant himself said he had drunk a maximum of four pints of lager in a two hour period, was used to drinking much greater amounts on a regular basis and felt perfectly capable of driving safely.
9. In response to a contention that the plaintiff should have taken some steps to enquire of the defendant how much he had consumed, McCowan LJ said:

"... I refuse to accept the proposition that if a man in a public house observes another man drink one pint of lager and give no sign of intoxication, he cannot accept a lift from him without interrogating him as to exactly how much he has had to drink."

The facts of the present case, of course, are rather different.

10. After reciting the facts, the relevant case law and the submissions he had received from the parties, Judge Curl set out his conclusions. He accepted that Mr Booth could not rely on his own drunkenness and, in determining whether he had failed to take reasonable care for his own safety, he should approach the case by assessing what a reasonable man in Mr Booth's shoes would have done.
11. The judge discounted the fact that Mr White had had a pint to drink before he went off to play football. He was then back in the pub for two hours, but there was no evidence before the court that Mr White was acting in a way which might indicate that he could not drive safely. Although the judge approached Mr Booth's own evidence on this matter with caution, since he was the worse for wear himself, he had received unchallenged evidence from Mrs Booth that at 6.15pm she could see nothing to suggest that Mr White was not fit to drive. The judge was clearly influenced by the fact that Mr Waters decided not to cross- examine Mrs Booth, whom the judge had had the opportunity of seeing in the witness box, as we have not.
12. The judge continued:

"Of course, it is right that Mr White was known to the claimant to be a heavy drinker, and we know that the reading in fact approached nearly twice the limit when taken shortly after the accident. However, because Mr White sometimes, or indeed often, drank regularly, it does not necessarily follow that he was obviously incapacitated from driving safely on this occasion, in my judgment. Whilst some people are highly likely to show the effect of being nearly double the limit, others may not. Mr White was, on any view, someone used to drink. He was five foot ten/five foot eleven tall, weighed 15 to 18 stone - that is the evidence of Mr Booth, which has not been challenged; on any view a reasonably big man."

13. The judge concluded that in all the circumstances he was not persuaded that Mr Booth was negligent in failing to take reasonable care for his own safety by not asking Mr White how much he had drunk. In reaching this conclusion he took into account Mr White's drinking history, the history of the accident and the breathalyser reading. The judge was also not willing to infer that Mr White's condition was such that Mr Booth was negligent in not making such inquiries. He therefore dismissed the allegations of contributory negligence and found Mr White 100 per cent liable for Mr Booth's injuries.
14. I remind myself of the approach of Watkins J in the leading case on this branch of the law; Watkins J stressed that whether the principle he was advancing could be relied upon successfully was a question of fact and degree to determine in the circumstances out of which the issue was said to arise. I also remind myself that this court cannot interfere with the decision of Judge Curl, whatever its own views might be as to the way it might have decided the matter, unless it is satisfied that the judge was wrong.
15. Mr Waters reminded us that he did not rely, for his allegation of contributory negligence, on precisely what Watkins J said in Owens v Brimmell. His contention was that Mr Booth should have known (or would have known if he had not been so drunk) that there was a significant risk that Mr White had drunk excess alcohol. In those circumstances he should have asked him how much he had drunk before getting into his car, and he told the judge that, if he had asked, Mr White would have told him the truth.
16. As the argument proceeded in this court today, it became clear that what Mr Waters was seeking to do was to move the law on from an assessment of whether a driver is safe to drive a car, to a duty to include questioning of the driver in circumstances like those arising in the present case; and not merely questioning, but the particular type of the question was important. Mr Waters said the question ought not to have been: 'Are you safe to drive?' It ought to be: 'How much have you drunk?' He was anxious to persuade us that whatever we might decide on the facts of this case could not properly, at the end of the day, be relied on in other cases on different facts. He, in other words, encouraged us not to envisage a litigation scene in which the precise question that a passenger should ask his driver might always be subjected to close critical analysis.
17. Mr Waters submitted that the world had changed since 1976 when Watkins LJ decided Owens v Brimmell and that members of the public, and particularly younger members of the public, and the courts and Parliament are very much more stern on those who drink and drive. He submitted that it is well known that people can appear sober when they have in fact had too much to drink, and that a passenger who is properly careful for his own safety should not close down the opportunity of obtaining more information by asking the driver how much he had drunk than he would otherwise obtain from his assessment of the driver.
18. In the Court of Appeal case of Brignall v Kelly there was forensic evidence before the court that different people can absorb drink in different ways, and it was accepted in evidence in that case that the safeness of a driver varied depending on how well he absorbed liquor.
19. The judge, in his careful judgment, took into account the evidence he had heard about Mr White, whose solicitors had chosen not to compel him to give evidence in his defence. The judge took into account the clear evidence that he had heard from Mrs Booth, and he also took into account the fact that Mr Waters, a very skilled advocate, had decided not to question Mrs Booth at all. Mr Waters, in argument, sought to persuade us that whatever Mrs Booth might have seen, and whatever the soundness of her assessment, on an occasion when she was extremely angry with her husband, who was depriving her of the evening out that she had been promised, things would have changed, and the judge ought to have concluded that things had changed in the course of the next half hour. Although Mr White, on unchallenged evidence, had nothing about his behaviour which suggested to Mrs Booth at 6.15pm that he could not safely drive, if Mrs Booth had been around half an hour later Mr White, on his average drinking rate - - one to one- and- a- half pints every half hour - - would have changed his position.
20. In the last resort, I have to remind myself that this is very much a decision of fact for the trial judge to make. This court should be very slow to interfere unless it is satisfied either that the judge has not taken appropriate advantage of the great advantage that he has of seeing the witnesses, or that he has misdirected himself on the law. I cannot see that there is a point of law which the judge failed to take into account. The law requires the passenger to make an assessment of the driver when deciding whether, in the interest of his own safety, he should have a lift. The judge relied on Mrs Booth's evidence and the assessment that her husband would have made if he had been fit to make it.
21. In my judgment, the law would take a wrong turning if we were to require an interrogation in this type of case, of the type that Mr Waters has suggested.
22. It follows that although I would not necessarily have decided this case in the same way, I cannot find that Judge Curl was wrong in the way that he decided it. I would, therefore, dismiss this appeal.
23. LORD JUSTICE LATHAM: I agree.
24. THE PRESIDENT: I also agree.

(Order: Appeal dismissed with costs. Public funding and detailed assessment.)