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The Gazza debate: Can passengers claim if they're involved in an accident with a drink driver?

by Shoosmiths

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Media interest has this week surrounded troubled ex-footballer Paul Gascoigne.

The 43-year-old was one of three people injured when the car in which he was travelling was involved in a road traffic accident. The female driver was subsequently arrested on suspicion of drink driving.

On the face of it, it appears liability for the accident is likely to rest with the driver, but questions will undoubtedly be asked about whether Gascoigne had been drinking and whether he entered the vehicle with the full knowledge that the driver was under the influence of alcohol.

A dilemma often facing lawyers presented with a compensation claim from an injured passenger in such circumstances is whether the passenger knowingly got into the vehicle under no illusion that the driver had been drinking.

This will always be one of the first questions raised by lawyers when taking formal instructions from a prospective client.

If it is the case that the passenger was fully aware that the driver had been drinking, it doesn't necessarily follow that the passenger can't pursue a claim for personal injury.

Whilst entering a vehicle with this knowledge can't, of course, be condoned, each prospective case will be considered on its own merits. Often in cases where the passenger has put themselves in a position of risk, a deduction for contributory negligence is applied.

In the leading case of Owens v Brimmell [1977], the passenger had spent the evening drinking with the driver. Although both were intoxicated, the defence for the driver argued that the passenger should have known before they started drinking that the driver would not be in a fit state to be able to drive them home at the end of the night.

Although the claim succeeded, it was found that the passenger had contributed to his injuries, specifically on the basis that he had the 'knowledge' that the driver had been drinking and would not have been fit to drive him home.

The passenger's compensation was thereby reduced by 20%. A key defence in claims of this nature is that of volenti non fit injuria – 'knowledge of a risk'. However, a passenger cannot and will not always be aware of whether a driver has been drinking and, if so, how much they've had to drink.

A recent case dealt with by Julie Walton, one of Shoosmiths's specialist personal injury lawyers, involved two friends who had been out for the night drinking together and who decided to sleep in the driver's vehicle.

The passenger, who had positioned himself on the back seat of the vehicle, woke up to find the driver had obviously decided to drive them back home, but in the process had collided with a parked car.

Whilst the defence argued contributory negligence, claiming that the passenger was the 'author of his own misfortune', having knowingly entered the vehicle when the driver was under the influence of alcohol, Julie argued the passenger's case successfully and settled the passenger's compensation claim on a 100% basis.

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