Father of man who suffered brain damage in car accident fails to challenge English court’s finding of contributory negligence

Donald Campbell, who raised the action on behalf of his son Lyum Campbell, argued that no finding of contributory negligence ought to be made as at the time of the accident his son was heavily intoxicated and thus lacked the insight to determine that his course of action was risky. The action was raised against Advantage Insurance Co Ltd, who were the insurers of the friend of Mr Campbell’s who had been driving him.

The appeal was heard by the Vice-President of the Court of Appeal, Lord Justice Underhill, sitting with Lord Justice Baker and Lord Justice Dingemans. John Ross QC appeared for the appellant and Christopher Kennedy QC and Matthew Snarr for the respondent.

Allowed to be driven

The accident occurred in the early hours of 9 August 2016. Mr Campbell, along with his friend Dean Brown and his brother Aaron, had been out drinking the previous night at a nightclub in Cheltenham. After they left the club, Mr Campbell got into a car with Dean, who then drove him in the direction of Oxford along the A40.

At approximately 3:53am the car collided with a lorry being driven in the opposite direction, with a combined closing speed of between 99 and 114 miles per hour. Mr Campbell’s head collided with the back of the driver’s seat of the car, and he suffered catastrophic brain damage. Mr Brown was killed in the collision. His brother took his own life before the hearing of the trial in the High Court.

The respondent admitted liability for the damages claim but contended that the damages ought to be reduced for contributory negligence because Mr Campbell had not been wearing a seat belt at the time of the accident and he had allowed himself to be driven by Mr Brown even though he had been drinking at the nightclub.

At the hearing before the High Court, which had the benefit of hearsay evidence of what Aaron Brown had said to solicitors for the appellant before his death, it was found that Mr Campbell should have appreciated that Dean Brown was unfit to drive. The court therefore assessed contributory negligence at 20 per cent but concluded that the fact that Mr Campbell was not wearing a seat belt had not made a material difference to the injuries he suffered as a result of the accident.

Counsel for the appellant submitted that the High Court judge had wrongly applied an objective test when assessing whether Mr Campbell was guilty of negligence and made findings of fact based on impermissible speculation given the lack of primary evidence in the case, such as how Mr Campbell came to be in the back of the car. Further, the Mental Capacity Act 2005 had been applied wrongly to the case and the burden of proof in relation to the issue of contributory negligence had been reversed.

Known unknowns

In his opinion, with which the other two judges agreed, Dingemans LJ said of the 2005 Act: “Section 1 of the Mental Capacity Act 2005 establishes relevant principles which apply for the purposes of the Act, [including that] a person ‘must be assumed to have capacity unless it is established that he lacks capacity’.”

He continued: “In these circumstances where the issue of capacity had apparently been put in issue on behalf of Mr Lyum Campbell, the judge cannot be criticised for addressing the issue of capacity. The judge’s treatment of the issue was in accordance with the express terms of the Mental Capacity Act 2005. All that the judge did was to point out that a person is presumed to have capacity until the contrary is proved, and this did not amount to an impermissible reversal of the burden of proof in relation to the issue of contributory negligence.”

Turning to the issue of impermissible speculation, Dingemans LJ said: “The judge was well aware of the limitations of the evidence. The judge identified the two ways in which Mr Lyum Campbell could have got into the back of the car in his judgment, and he gave clear and convincing reasons for finding that Mr Lyum Campbell must have been helped by Mr Dean Brown into the back of the car.”

He went on to say: “As it was the judge’s findings of fact were soundly based on the known facts and reasonable inferences drawn from those facts. The fact that there were, as Mr Ross put it, ‘unknown unknowns’ and ‘known unknowns’, the latter including why Mr Dean Brown drove the wrong way from Cheltenham towards Oxford and not the right way towards the respective homes of Mr Dean Brown and Mr Lyum Campbell, did not prevent the judge from making the findings of fact that he did.”

Finally, addressing whether there was contributory negligence, he said: “The judge was right to judge his actions at the relevant time by the standards of a reasonable, prudent and competent adult. This conclusion accords with principle and previous cases. A reasonable, prudent and competent man in Mr Lyum Campbell’s position as he assisted Mr Dean Brown to move him from the front passenger seat to the back seat of the Seat Ibiza motor car would have appreciated that Mr Dean Brown had drunk too much to drive safely. The finding of contributory negligence was therefore properly made by the judge.”

The appeal was therefore refused.