Contributory Negligence and Drunken Passengers
The holiday season brings with it newly enacted provincial drinking and driving laws in BC, imposing stiff new civil fines and driving prohibitions.
With these new laws, there may an increased incentive for seasonal revelers to arrange for rides home from restaurants and bars with other drivers – but there will still be instances where the designated driver is not sober. In such cases, should there be an accident on the drive home, what are the implications for the apportionment of liability among the driver, passenger and commercial establishment?
Since Menow v. Jordan House Ltd.  S.C.R. 239, commercial establishments in Canada have faced a share of liability in cases where they have over-served a patron and failed to take reasonable steps to ensure that the patron has a means of arriving home safely. In Stewart V. Pettie,  S.C.J. No. 3, the Supreme Court extended the concept of commercial host liability to cases where the injured plaintiff was not the person who became inebriated in the defendant’s establishment. Justice Major, for the court, stated, “It is a logical step to move from finding that the duty of care is owed to patrons of the bar to finding that a duty is also owed to third parties who might reasonably be expected to come into contact with the patron, and to whom the patron might pose a risk.”
So it is well established in Canada that a passenger injured in an accident caused by a drunken driver potentially has a cause of action against both the drunken driver and the commercial establishment that over-served the driver. In which circumstances will a court consider that the passenger must also bear some apportionment of fault? What arguments can counsel acting for the injured passenger raise to limit the plaintiff’s degree of contributory negligence?
Most commonly, to prove contributory negligence on the part of a plaintiff/passenger, defence counsel is able to point to the fact that the plaintiff/passenger was drinking at the establishment together with the defendant/driver, and therefore knew or ought to have known how much the defendant/driver had to drink and that the defendant/driver was therefore likely to be impaired. However, plaintiff’s counsel should be aware of the decisions in Reekie v. Messervey  B.C.J. No. 797 (B.C.C.A.), Shaw v. Storey  B.C.J. No. 245 and Dennis v. Gairdner  B.C.J. No. 2017 (B.C.S.C.), which support the argument that a passenger’s knowledge that the driver had been drinking, without any other evidence (for example, without evidence of the plaintiff’s knowledge of the amount consumed by the driver or without evidence that the driver was displaying visible signs of impairment), is insufficient to support a finding of contributory negligence.
There is another interesting argument that counsel acting for a plaintiff/passenger may raise to limit the degree to which the court attributes contributory negligence to the plaintiff/passenger. The argument is based on the principle that a commercial establishment owes, and may be found in breach of, two separate and distinct duties of care: (1) to the intoxicated patron, and; (2) to third parties who might be harmed as a result of the acts of the intoxicated patron.
In the hypothetical case of a passenger and driver who both left a commercial establishment drunk, and then were involved in a motor vehicle accident on their way home caused by the negligence of the drunken driver, the drunken driver will usually be attributed the largest apportionment of liability. The main issue becomes the relative degrees of liability to be attributed to the commercial establishment as compared to the drunken passenger.
This issue was considered in Holton v. MacKinnon  B.C.J. No. 57 (B.C.S.C.), Pilon v. Janveaux  O.J. No. 887 (both Ont. C.A.). Plaintiff’s counsel may refer to these cases to argue that the commercial establishment should bear a higher percentage of fault than the drunken passenger, because the commercial establishment may have breached two separate duties owed to the drunken passenger; first, as a patron who became intoxicated in the establishment and second, as a third party who could reasonably be expected to come into contact with another patron who became intoxicated in the establishment, namely the drunken driver. By contrast, the drunken passenger has breached but one duty; to take reasonable care of himself.
While individuals who plan ahead to make arrangements for a ride home from restaurants or bars should be commended for their foresight, they may still face a finding of contributory negligence if they are injured in an accident and their designated driver was drunk. Counsel acting for these injured passengers will need to consider the available arguments to reduce their clients’ relative liability, especially where a commercial host is involved.
Co-authored by Michael Thomas a partner with Harper Grey LLP in Vancouver. Michael practices personal injury law. You are welcome to contact him with questions at 604.687.0411.