Driving under the influence – Matter of contributory negligence or culpability?
Proving a DUI claim
It is, I think, common knowledge that if you drive having consumed alcohol above the prescribed limit (currently 80mg of alcohol per 100ml of blood) you are committing a criminal offence.
Failure to supply a breath or blood sample is also an offence for obvious reasons.
Such matters are mostly dealt with in the Magistrates Courts. The Magistrates will convict if they are satisfied ‘beyond reasonable doubt’ (the criminal burden of proof) that the offence has been committed.
A positive breath or blood test would normally be accepted as sufficient proof.
In the event of a road traffic accident where one or more of those involved is seriously injured and conveyed to hospital the supply of breath or blood for testing may be delayed.
When tested the sample may show levels below the legal limit however by applying a readily understood formula by which alcohol levels decrease over time it is possible to ‘count back’ to the time of the accident. Such count back calculations are again normally accepted as sufficient proof to secure a conviction.
Add into that scenario a civil claim for damages and the issue arises as to the extent to which a seriously injured individual might be entitled to recover damages if at the time of the accident they had been drinking and whether the amount makes any, significant, difference.
In making a determination on such issues the civil courts apply a different (and lower) burden of proof being that of the ‘balance of probability’
It follows that a criminal conviction for drink driving will certainly satisfy the civil test. Further simply because a driver is not charged or charged and subsequently acquitted does not mean that a civil court is not entitled to find on the available evidence that somebody had been drinking and their driving consequently impaired.
There is a potential legal argument that a claimant should be debarred from claiming any damages in circumstances where they were engaged in illegal activity – such as drink driving. (for the Latin buffs the maxim is ex turpi causa non oritor actio).
I venture to suggest, however, that any driver who seeks to claim damages for personal injury caused in an accident where there is evidence that they had been drinking risks at best a substantial finding of contributory negligence being made against them and quite possibly the loss of their claim altogether.
The extent to which the impairment caused the accident is likely to be the factor that drives the Courts decision.
How much had the person drunk? What speed where they going? What vehicle were they driving? What might they have done, if sober, to avoid the accident.
The inherent need to balance renders two wheeled vehicles such as motorcycles and bicycles more difficult to ride properly when impaired and the risks of impairment being found entirely causative are consequently higher in my view.
Reported decisions on this issue appear relatively rare perhaps because those who had been drinking either don’t bother to claim on the basis they recognise where the fault lies or alternatively accept early settlement at a greatly reduced sum before the matter gets anywhere near a Court.
Author: Martin Pettingell