Claims Ireland

Passengers found to 40% liable for injuries

24-Sep-2009

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THE SUPREME Court has warned anyone who chooses to travel as a passenger in a car driven by a person whom they know, or should reasonably know, has consumed alcohol is at high risk of being found partially liable for any injuries in any accident.

Any measure of tolerance towards intoxicated drivers and their passengers “is very much a thing of the past”, Mr Justice Nicholas Kearns said.

Society’s understanding of the role of alcohol in driving cases has undergone “radical changes” in the past 40 years, influenced by the extent of carnage on our roads and multiple anti-drink-driving campaigns, he added.

The more a passenger should have realised, or did realise, the risk being undertaken in getting into a car with a driver who had consumed alcohol, the greater the degree of contributory negligence, the judge said. An intending passenger who had been drinking also could not rely on self-intoxication to avoid a finding of contributory negligence or to avoid the consequences of facts which would otherwise have been reasonably discernible to them.

The issue of contributory negligence in such cases must be approached objectively and in light of the circumstances of each case, the judge said.

While the knowledge of an intending passenger that an intending driver had taken one alcoholic drink would not constitute contributory negligence, as the law permitted one drink, it might prompt an inquiry by an intending passenger to ensure any consumption was within legal limits.

Mr Justice Kearns was giving the Supreme Court’s judgment upholding a High Court finding that Cynthia Hussey, then a young business student, was 40 per cent liable for injuries suffered in an accident which occurred in 1999 while she was travelling as a passenger in a car driven by her friend’s boyfriend who had been drinking. In light of that finding, the High Court had reduced its total award of €83,000 damages to Ms Hussey, The Highlands, Glounthaune, Co Cork, by 40 per cent, leaving her with €50,000.

Ms Hussey appealed that decision to the Supreme Court. The three-judge court, with Mr Justice Hugh Geoghegan, presiding, and sitting with Mr Justice Kearns and Mr Justice Joseph Finnegan, dismissed the appeal.

Given the High Court findings, for which there was ample evidence, the damages award was “generous”, Mr Justice Kearns said.

He said the case arose from an accident in Cork city on July 20th, 1999, and involved an important issue as to how contributory negligence was to be assessed in the case of a person who chose to travel as a passenger in a car when the driver has consumed alcohol.

Ms Hussey had sued the owner of the car, her friend Mary Twomey, the car driver Eugene Courtney, then Ms Twomey’s boyfriend, both then with addresses at Dominic Street, Cork, and the Motor Insurers Bureau of Ireland alleging she sustained lower back injuries as a result of the accident.

The accident occurred just after midnight when Ms Hussey was a front-seat passenger in Ms Twomey’s car, driven by Mr Courtney.

The MIBI was joined to the case as Mr Courtney was not insured to drive the car. The defendants admitted liability but alleged contributory negligence by Ms Hussey in allowing herself to be a passenger when she allegedly knew, or should have known, the driver had consumed alcohol.

The judge said Ms Hussey and Ms Twomey were drinking in a bar in Cork city on the night of the accident and were later joined there by Mr Courtney. Some sort of row occurred later between Ms Twomey and Mr Courtney, Ms Twomey went home alone and, some time before midnight, Mr Courtney said he would drive Ms Hussey home.

Ms Hussey was adamant in evidence Mr Courtney appeared “fine” and did not appear to be drunk to her and had said, if she thought he was, she would not have got into the car with him.

There were two other people in the rear seat. The accident occurred about 10 minutes after the group left the bar. When gardaí got to the scene at 12.20am, the occupants had abandoned the car.

Ms Hussey had walked to a hospital and Mr Courtney had gone to Ms Twomey’s house. When gardaí found him, a garda noted that his eyes were “blurred”, his speech “slurred” and said it was “quite obvious” he was “very drunk”.

The judge ruled there was ample evidence before the High Court for it to prefer the garda’s evidence to that of Ms Hussey, whom the High Court found “lacking in candour”.

It was “inescapable” to think other than that Ms Hussey was well aware of the driver’s inebriated condition, he said. The apportionment of 40 per cent contributory negligence on her part should also be seen against the backdrop of changed societal perceptions as to how such mattters should be regarded.

The judge further upheld the High Court decision that Ms Hussey’s significant back injuries were sustained in a later accident in 2000, when the car she was driving went off the road, and not the 1999 accident.

The director general of the Free Legal Advice Centres, Noeline Blackwell, said the ruling clarified a point that had been at issue for some time, but was in line with decisions in other areas. "For instance, if somebody is injured at work and is injured because they did something they or ought to have known was stupid, they have been held to be liable. It was considered a bit unusual that this didn’t seem to transfer into the road traffic area to any great extent,” she said. "It will probably have quite widespread implications."