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Tort - Volenti non fit injuria II

Updated on August 7, 2017

In situations where a passenger gets into a car with the knowledge that the driver is drunk, whether the defense of volenti would apply or otherwise is dependent on the how drunk the driver actually is.

In Dann v Hamilton (1939) the plaintiff got into the car with the driver and a few other passengers knowing that the driver had been drinking. One of her friends had earlier refused to get into the car because of the condition the driver was in. The car later crashed with the plaintiff in it, and the plaintiff sued. The defendant raised the defense of volenti and the court rejected the defense.

The courts determined that in order for volenti to apply in instances where passengers had gotten into a vehicle with the knowledge that the driver was drunk, the condition of the driver must be so striking or glaring that it is akin to waiting for a bomb to explode or walking on the edge of a cliff. The reluctance to allow the defense of volenti in such instances may once again be due to public policy reasons.

In Bowater v Rowley Regis Corp (1944) the plaintiff was employed by the defendant to collect road sweepings which were gathered in a cart and the plaintiff was ordered to use a rather temperamental horse to pull his cart. The plaintiff protested knowing that the horse was prone to bad behavior but his protests were ignored. A few weeks later the horse misbehaved and the plaintiff was thrown off the cart and as a result incurred injuries. The plaintiff sued and the defendant raised the defense of volenti.

The decision of the court was in line with the decision in Smith v Baker (1891). In order for the courts to allow the defense of volenti the plaintiff must have acted freely and independently and the plaintiff in this instance cannot be said to have acted freely and independently especially when he had voiced his objections to using the horse. He was compelled to use the horse by his employer and the act of compelling the plaintiff to use the horse robbed the defendant of the defense of volenti.

Even if the plaintiff had accepted the risk that does not mean to say that he had accepted the risk of the defendant’s negligence. In White v Blackmore (1972) the plaintiff was a participant in a jalopy car race and he had entered it with full knowledge of the risks that were involved. The plaintiff was subsequently watching the race when one of the cars crashed into the safety ropes and because the ropes were not constructed in the proper manner the resulting accident was fatal.

The plaintiff’s estate sued and the defendant pleaded volenti. The defendant argued that the plaintiff had accepted the risk by being a part of the race or by being a driver in the race and furthermore there were exemption clauses posted in clear view of anyone in attendance that purported to exempt the organizers from liability as a result of personal injury.

The plaintiff’s estate was successful. The court held that despite the fact that the plaintiff had accepted the risk of personal injury by participating in the races, he had not accepted the risk of the defendants negligence. The plaintiff died not as a result of participating in the races but as a result of the defendants lack of diligence and therefore the defendants could not argue that the plaintiff had voluntarily accepted the risk.

In Morris v Murray (1991) after a night of heavy drinking, the defendant who was a pilot suggested to the plaintiff that they take the defendant’s airplane, a light aircraft, out for a spin and the plaintiff agreed. The pair took off from the airport and crashed shortly afterwards. The defendant was killed while the plaintiff sustained serious injuries. The plaintiff sued and the defendant’s estate raised the defense of volenti. The defense of volenti was allowed and the defendant was found not liable.

The decision in the case is in line with what was said in Dann v Hamilton (1939) in that both the plaintiff and defendant in Morris v Murray (1991) were glaringly, strikingly, and blaringly drunk to the extent that it would have been more than obvious to anyone who they’d come across that they were intoxicated and to get into a vehicle with someone who was intoxicated to that level would be similar to inviting an accident.

© 2017 Kathiresan Ramachanderam and Dyarne Jessica Ward

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