I was riding pillion on my mate’s bike last summer when we clipped a kerb and came off. I was slightly injured so an ambulance and the police turned up. 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 the police breathalysed my mate and he blew red. He has now been convicted and his insurers are saying they won’t pay me any compensation as I knew he was over the limit but decided to get on the back of his bike anyway. Is this correct?
Jamie Brown, Carlisle
Answered by Andrew Campbell, Solicitor and author of the MCN Law column.
A lot will depend on the witness evidence from the other guests. If the totality of the evidence is that it was obvious 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) which is similar to your case. That particular claim succeeded, but it was held that the passenger had contributed to his injuries, specifically on the basis that he had the prior ‘knowledge’ that the driver had been drinking and would not have been safe to drive him home, so the passenger’s compensation was reduced by 20%. Your case will most likely produce a similar outcome if it were to go to court although, as ever, each case turns on its own specific facts.
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