Practice and Procedure


PUBLISHED November 18, 2003

The law did not require a passenger to question a driver as to how much alcohol he had consumed, and the judge was not wrong in the way he had determined the case.Defendant's ('W') appeal from the decision of HH Judge Curl on 25 April 2003 that W had failed to prove that the claimant ('B') was contributory negligent. B and W went to a public house together at 12.35 pm. B bought W a pint of lager. At 1.15 pm W left to play football, and returned to meet B by 5 pm. In the meantime, B continued drinking at a rate of 2 to 3 pints of lager per hour. When W returned, B bought W another pint of lager. B did not know what further alcohol W had consumed, except that he was aware that W had won a pint of lager from a game of pool. In evidence, B said that he knew that W was an habitually heavy drinker and that he could handle alcohol. At 6.15 pm B's wife attended the public house. In evidence, B's wife said that W was acting normally, and that nothing lead her to believe that he could not drive safely. At 6.45 pm B was a front seat passenger in a car driven by W when W, who had consumed two times the legal limit of alcohol, lost control of the car and B suffered severe injuries to his right leg. W asserted that B had been contributorily negligent as he knew or ought to have known that W had been drinking alcohol. B accepted that he had consumed between 10 and 15 pints of lager at the time he had elected to be driven by W and was therefore incapable of making a reliable judgment with regard to his own safety. The judge held that as there was no evidence that W was acting in a way indicating that he could not drive safely and B's wife's evidence was unchallenged, B was not contributory negligent in failing to ask W how much he had had to drink before getting in the car. On appeal, W argued as follows: (i) B could and should have known that there was a significant risk that W had drunk excess alcohol and therefore should have asked W how much he had had to drink before getting in the car; (ii) the law had moved on from an assessment of the condition of the driver to a duty on a passenger to question the driver, not as to whether the driver was safe to drive, but as to how much alcohol he had drunk; and (iii) the attitude towards drink driving had changed since Owens v Brimmell (1977) 1 QB 859 such that a passenger who was careful for his own safety should not turn down the opportunity to obtain more information as to the driver's condition than he might otherwise obtain from his assessment of the driver.HELD: (1) The judge took into account the evidence he had heard, and had relied on the evidence of B's wife. (2) The law would take a wrong turning if it required an interrogation of the type W had suggested. (3) Accordingly, the judge was not wrong in the way he had determined the case.Appeal dismissed.