Court of Cassation

Drunk driving, contributory negligence of the injured passenger is not automatic

The accident after agreeing to be transported in a vehicle driven by an intoxicated person

by Eleonora Alampi

19 September 2024

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Key points

Adjudicating a dispute on the merits in the interest of the law
Two principles of EU passenger law

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It is not always and in any event at fault who, after accepting to be transported in a vehicle driven by a person in a state of intoxication, becomes involved in a road accident attributable to the driver's responsibility. Instead, it is always up to the court of merit to assess in concrete terms, according to all the circumstances of the case, the existence and degree of the fault of the driver in causing the accident.

This was established by Order 24920/2024 of the Court of Cassation on the appeal against a sentence according to which the appellant, by agreeing to be transported in a vehicle driven by a person in an obvious state of intoxication, had contributed to the occurrence of the damage (personal injury) suffered by him.

Adjudicating a dispute on the merits in the interest of the law

The Supreme Court, while declaring the appeal inadmissible, decided to examine the dispute on the merits in the interest of the law. The subject matter of RCA insurance is governed by Directive 2009/103/EC, so that it seemed appropriate for the Court to ascertain whether the interpretation of Article 1227, paragraph 1 of the code, intended to exclude or reduce the right to compensation for the damage of a person transported in a motor vehicle driven by a person in a state of intoxication, was compatible with EU law.

Ue, aumenta la produzione di birra analcolica

This rule stipulates that if the creditor's fault contributed to causing the damage, the compensation shall be reduced in accordance with the seriousness of the fault and the extent of the consequences resulting therefrom, excluding altogether compensation for damage that the creditor could have avoided by using ordinary diligence. Directive 2009/103/EC, the Court observes, aims to include all transported persons in the insurance benefits.

An objective that would risk being thwarted if by law, or even by a contractual clause, passengers who knew (or should have known) that the driver of the vehicle was under the influence of alcohol were excluded from insurance cover. Nevertheless, Article 13 of the directive leaves it to the autonomy of the Member States to dictate the rules of civil liability, providing for the possibility of co-liability of the passenger, who knew, or should have known, that the driver of the vehicle was under the influence of alcohol at the time of the accident.

L’auto tedesca in panne

Two principles of EU passenger law

The antinomy of the rule with respect to the EU legislator's objective of including all persons transported in the insurance benefits had already prompted the intervention of the Court of Justice, which, in case C-537/03, had affirmed two important principles of law, according to which it would not be compatible with EU law to have national legislation that denied the passenger compensation for the damage or limited it to a disproportionate extent, while it would be permitted for member states to limit the compensation due to the passenger "on the basis of a case-by-case assessment" of exceptional circumstances. In continuity with these principles, the Court of Cassation concluded that the possible contributory negligence of the passenger must be ascertained by the court of merit having regard to all the relevant circumstances of the case.