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Title: Can I claim if my mate was drunk?

Date: 21 December 2015

Question

I have a claim for compensation with a local firm of solicitors who are doing a good job, keeping me informed regularly. However we have a bit of a problem. I was riding pillion on my mate’s bike at around 11pm in the summer. We had been at a friend’s house and although everyone had a few drinks I didn’t think my friend was over the limit. But we hit a kerb and an ambulance and the police turned up. I wasn’t badly injured but hope to get a couple of thousand pounds from the claim. The police breathalysed my mate at the road side (he was not injured) and he blew red. They took him to the police station and he was again found to be over the drink drive alcohol limit. He was convicted. His insurers are saying they won’t pay me compensation as I knew he was over the limit but decided to get on the bike anyway. Is this correct?

Jamie Brown, Carlisle

Answer

A lot will depend on the witness evidence that can be obtained from others at the house at which you were gathered. If the totality of the evidence is that it was obvious or that you knew or ought to have known that your mate was over the limit you may well find you will receive reduced compensation to account for your contributory negligence. Your evidence will presumably be that you did not know otherwise you would not have got on the bike with him. But I imagine you would face some tough questioning at court and may well fall down on the “ought to have known” element of the test. The most well-known case on this issue is Owens v Brimmell [1977] and the facts are similar to your case.

Although that claim succeeded, it was held 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 safe to drive him home. The passenger's compensation was reduced by 20% and this is likely to be the result in your case although, as ever, each case turns on its own specific facts.

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