Passengers can be guilty, too

Accepting a lift from a driver who's over the limit could land you in legal hot water. Penny Lewis investigates the dangers in getting home
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The Independent Online

The most high-profile drink-driving inquests in history have finally opened and adjourned. It will be a while before the causes of death of the Princess of Wales and Dodi Fayed are determined, but there is little doubt that the amount of alcohol consumed by their French chauffeur on that fateful Parisian night six years ago will be central to the coroners' inquiries.

Despite continuous efforts by police and their political masters drink-driving is still an astonishingly common offence in this country. According to figures just released by the Association of Chief Police Officers (ACPO) 1035 drivers from the 5,002 motor accidents over the festive period tested positive for alcohol.

Accepting a lift from someone who has drunk too much could also generate unexpected complications. In a pre-Christmas case, Booth v White (2003) explored whether drivers can raise a defence of contributory negligence on the basis that the passenger should have declined a lift.

Margaret Greene, a partner at Badhams Law who specialises in defendant personal injury litigation clarifies that if a passenger sues a driver "the general principle confirmed in Booth is a passenger will be found contributorily negligent if he accepts a lift knowing the driver has consumed too much alcohol." She reassures passengers that: "There appears to be no requirement as yet to interrogate the driver on whether he is safe to drive or has had too much to drink."

What should you do if you smell drink on someone's breath? Greene says: "Every case will depend on its facts. Much will depend on whether you had been with the driver before the offer of a lift." The lead case on accepting lifts, Brignall v Kelly (1994) said passengers need not quiz drivers about alcohol consumption where they had seen the driver consume small quantities and there was no visible intoxication. Nevertheless, she advises that "it would be sensible for anyone accepting a lift from someone they know to have consumed alcohol to take steps to determine how much the driver had to drink before getting into the car".

Matthew Tom, of Tarlo Lyons, explains how contributory negligence applies to road traffic accidents. If fault is proven on the passenger's part, he says, "whilst this would not exonerate the driver from liability, it would transfer from him to them a percentage of the overall blame and with it the same proportion of any liability for damages." Exceptionally, a passenger might be charged with aiding and abetting a drunk driver.

Establishing contributory negligence is difficult. Court sympathy is unlikely to lie with the drunkard. Tom believes the key issue is "what state of knowledge can be imputed to the victim. The matter is straightforward where intoxication is obvious." He agrees you need not "conduct a thorough examination or questioning on each occasion."

Where the driver is professional, Tom says that if they had been the employee of a hotel, "the hotel could also be sued for negligence under the principle of vicarious liability. This states that, wherever an employee is acting in the course of his employment, his employer will be liable for his actions. Case law states that where the employee is doing something he was employed to do, albeit in a way that the employer would not have authorised, the employer will remain liable for the employee's negligence."

The only defence is to demonstrate that the employer "did everything it reasonably could to prevent the employee's misdemeanour. It is unlikely to be enough simply to have issued a rule against drink-driving." This must be "communicated to all staff regularly and rigidly, and consistently enforced".

Interestingly, the fact that the person at the wheel is a professional chauffeur is irrelevant. Negligence is "judged according to the standard of care expected of the ordinary driver, unless they are specifically held out as being trained to a higher level. In such a case, they would have to be judged according to the higher standard to which they were trained."

Whereas qualifications do not affect liability, conviction can impact very seriously on your career. The Law Society confirms that at least one solicitor has been struck off because of drink-driving. Drink-driving is also incompatible with judicial office. A statement from the Department for Constitutional Affairs reiterates that, in assessing applications, and "in relation to those who already hold judicial office" the Lord Chancellor and Secretary of State take a strong line against drink-driving convictions.

But in cases where drink-driving leads to fatalities, such as those of Diana, Princess of Wales and Dodi Fayed, recourse to the law is little comfort to the grieving families.