IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHELMSFORD CROWN COURT
HIS HONOUR JUDGE RICE
| Royal Courts of Justice | ||
| 3rd August 1990 |
LORD JUSTICE FOX
LORD JUSTICE STOCKER
and
SIR GEORGE WALLER
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| GARY MORRIS |
Respondent (Plaintiff) |
|
| v. |
||
| HENRY MURRAY (Administrator of HARRY HENRY MURRAY Dec.) and JANICE ELLEN MOREY |
Appellants (Defendants) |
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters Ltd., Room 392, Royal Courts of Justice, and 2, New Square, Lincoln’s Inn, London WC2A 3RU)
____________________MR. IVAN KROLICK (instructed by Messrs B. Laddie) appeared on behalf of the Appellants (Defendants).
MR. W. AYLEN Q.C. and MR. S. LEONARD (instructed by Messrs Lee Davies & Co., Harlow) appeared on behalf of the Respondent (Plaintiff).
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HTML VERSION OF JUDGMENT
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On 3rd March 1981 the plaintiff, Mr. Morris, was drinking with a Mr. Moran at a public house in Harlow called the Red Lion. The plaintiff was then about 25 years old. How much they drank there is uncertain. The plaintiff says that they were short of money. He thinks they had two half pints. Mr. Moran thinks it was two pints. The barman, Mr. Aldington, who was a friend of theirs, thinks it was three or four pints.
At about midday, the barman received a telephone call from Mr. Murray, who was a regular customer at the Red Lion and a friend of the plaintiff and Mr. Moran. Mr. Murray was in a public house called the Blue Boar about 25 minutes drive from the Red Lion. He asked if somebody could collect him from the Blue Boar and take him to the Red Lion. The plaintiff and Mr. Moran accordingly drove to the Blue Boar. They drove in Mr. Moran’s car but since Moran had been disqualified from driving the plaintiff drove.
When they arrived at the Blue Boar, they were given further drinks by Mr. Murray. Subsequently, as neither the plaintiff nor Mr. Moran had any money, Murray lent each of them £10 so that they should not feel embarrassed by not being able to buy rounds of drinks.
The party was at some point enlarged by the landlord and his wife. Drinking continued until about four o’clock in the afternoon. They drank spirits. Asked in evidence in chief “Do you remember what you were doing at the Blue Boar?”, the plaintiff replied “Drinking heavily”. By the end of the afternoon the plaintiff and Moran had each spent their £10 or most of it.
There seems to have been a suggestion by Mr. Murray that the landlord and his wife should go on a flight with him. He had a pilot’s licence and kept a light aircraft at a flying club at Stapleford. The offer was declined. In the end the plaintiff and Mr. Murray agreed to go on a flight together and the plaintiff drove Mr. Murray and Mr. Moran to Stapleford.
The plaintiff remembered the car drawing up alongside the aircraft. He agreed in cross-examination that he was anxious to start the engine and go on the flight. He tried to start the engine by turning the propeller but was unable to do so. Either Moran or the plaintiff and Moran together did start the engine. The plane needed fuel and it was filled up at a pump by the plaintiff – Mr. Murray paying for it by cheque.
Flying conditions were poor. Mr. R.G. Matthew, who conducted an inquiry into the crash on behalf of the Chief Inspector of Accidents says (in a written statement which, with others, was read at the trial) that there was a wind of some 20 knots with poor visibility, low cloud and occasional drizzle. The Chief Instructor at the Stapleford Flying Club had cancelled all club flying. Mr. Murray, as I understand it, was not aware of this, but, in any event, it did not prevent him flying his own aircraft if he chose to. The plaintiff asked Mr. Murray whilst they were in the aircraft whether he (Murray) needed to “radio in” to flying control before taking off but Mr. Murray said he did not. That was apparently correct (statement of Mr. P.I. Brand, a flying instructor).
The flight was short and chaotic. Mr. Murray took off down wind. The runway was wet and was uphill. These factors would make take off more difficult. In Mr. Brand’s view, Mr. Murray should have taken off on a different runway and into the wind.
Mr. Reith, a consulting engineer who holds a pilot’s licence, was driving on a nearby road when he saw the plane. He said in his statement that when he saw the plane his initial reaction was that he was looking at a model plane. He could not initially reconcile the flying attitude of the plane, that is to say its almost vertical climb and its close proximity to the ground, with anything other than a model aircraft. The plane was evidently recovering from a descent which brought it close to the ground. It climbed to about 300 feet, then stalled and dived into the ground. Mr. Reith’s opinion from his observation was that the pilot was not in control of the aircraft.
Mr. Murray was killed and the plaintiff was severely injured. The plaintiff in the statement which he made to the police after the accident said that he had flown with Mr. Murray on two previous occasions and thought him a good pilot. He said in evidence at the trial that, although he remembered making a statement and signing it he did not remember saying that he had flown with Mr. Murray twice before. The judge found that since the accident, his memory was episodic.
The autopsy on Mr. Murray showed that from the concentration of ethanol in his body and from his blood alcohol content he had consumed the equivalent of 17 whiskies. The concentration of alcohol was more than three times the limit prescribed for a car driver.
Mr. Murray had for some five years prior to his death lived with a lady, now Mrs. Gibbins, who gave birth to his child on 30th March 1981, about three weeks after the accident.
Letters of administration to the estate of Mr. Murray were granted to Mrs Gibbins and to Mr. Murray’s father on 16th October 1981. The net value of the estate was sworn at about £43,000 for the purposes of the grant.
The child, Ricky, is the person entitled to the estate upon the intestacy.
The writ in this action was issued on 9th February 1984 and served in July 1984. The defendants pleaded violenti not fit injuria and, in the alternative, contributory negligence. The judge rejected the plea of volenti but held that there was contributory negligence to the extent of 20 per cent only.
As to volenti the judge, after referring to Dann v. Hamilton [1939] 1 K.B. 509, and to the judgments of Lord Denning M.R. and Salmon L.J. in Nettleship v. Weston 1971 2 Q.B. 692 then continued as follows:
“In this case it is right to say that the plaintiff was aware that Mr. Murray had been drinking heavily, but Mr. Murray was able, as it were, to start this aeroplane. He even taxied the aeroplane to the place where petrol was sold, paid for the petrol and then was able, albeit in a somewhat inexpert way because his faculties were clearly affected by drink, but he was able to get the plane into the air, albeit it only flew for some three or four minutes before crashing in the way I have described. But, in my view, this is not a case where one can say that the plaintiff consented to run the risk of the actual injuries that he subsequently suffered.
This case falls far short of what would be necessary in order to successfully defend the action on the grounds of volenti non fit injuria. This is a case where, in my view, certainly there was contributory negligence by the plaintiff in that he boarded a plane and allowed himself to be flown when he knew that the defendant had consumed a considerable amount of alcohol. In many ways it is analogous to the facts that prevailed in Owens v. Brimmell [1977] 1 Q.B. 859, because in that case the plaintiff had been in the defendant’s company for most of the evening visiting one public house after another. The defendant had there consumed eight to nine pints of bitter. In that case the learned judge, having considered the question of negligence of the plaintiff in that he agreed to be carried in a car driven by a person whose judgment he must have known would be affected by alcohol, assessed the plaintiff’s contributory negligence at twenty per cent. That is what I propose to do here”.
I should now refer to certain authorities. In Dann v. Hamilton [1939] 1 K.B. 509, the defendant Mr. Hamilton drove the plaintiff and her mother from the area of Staines into London to see the Coronation decorations. They all had tea in London at about six p.m. Between 9.30 p.m. and 10 p.m. they had some beer at a public house in London. How much Hamilton drank was not known. They then drove quite safely to another public house called the Milford Arms near Hounslow. It was about 10.30 p.m. and the premises were just closing, but they met a Mr. Taunton there whom they all knew. Taunton and Hamilton had a drink at the Milford Arms. Hamilton’s condition at that time was described thus by Taunton: “He wasn’t drunk but I could see that he had had one or two drinks”. It was then suggested that they should go to the Osterley Park Club which they did. Hamilton drove. Taunton thought he drove rather fast and swerved slightly but he did not appear to be driving dangerously. At the club Hamilton ordered a round of drinks including a pint of beer for himself, which he drank quickly and then ordered another round.
They returned to the car. Taunton was asked by the women to drive but Hamilton would not let him. He agreed to drive Taunton to his house about a mile away. Taunton said he drove at excessive speed and there was talk in the car that they were going too fast. Hamilton stopped the car after a while and he and Taunton went to the road side. Taunton said he thought Hamilton was very drunk but agreed to return to the car after obtaining a promise from him. Asquith J. doubted whether, if Hamilton was as drunk as Taunton suggested, he would have accepted Hamilton’s promise. The remainder of the drive on the way to Taunton’s house seems to have been safe enough except for a burst of high speed near the end. When Taunton got out he said to the two women “You have got more pluck than I have”, to which the plaintiff replied “You should be like me. If anything is going to happen it will happen”. The car then drove on and was involved in a very bad accident shortly afterwards in which Hamilton was killed and the plaintiff was injured. Asquith J. held that the volenti defence was not applicable and gave judgment for the plaintiff. Contributory negligence which at that time would have been a complete defence to the action was not pleaded and despite the judge’s invitation to the defendant’s counsel to amend (see Note by Lord Asquith in 69 Law Quarterly Review at page 317) was never relied on.
The decision has been criticised (see, for example, Sir Owen Dixon in Insurance Commissioner v. Joyce 77 C.L.R. 39 at page 59, Salmon L.J. in Nettleship v. Weston 1971 2 QB 691 at page 704 and Professor Fleming (Law of Torts 7th Edition at pages 272 and 274). But I need not examine the question of its correctness since it was approved by this court in Slater v. Clay Cross [1956] 2 Q.B. 265 (though I do not read that approval as going beyond the decision on its facts). The present case is, however, far removed on its facts from Dann v. Hamilton. In that case the plaintiff was engaged in a quite ordinary social outing to London and back, with a driver who was not drunk when the drive started and, indeed, who was not drunk until quite a late stage when it was not very easy for the plaintiff to extricate herself without giving offence. The whole situation seems to me to bear little resemblance to the drunken escapade, heavily fraught with danger from the first, upon which the plaintiff and Mr. Murray embarked in this case. It is said on behalf of the plaintiff that Dann v. Hamilton was a stronger case than the present for the application of the volenti maxim having regard to the fatalistic reply given by the plaintiff to Taunton when he finally left the car. That remark might be a good reason for saying that the case should have been decided in favour of the defendant (see for example Fleming op. cit., page 272, note 55) but Asquith J., in fact, gave no weight to it.
The reasoning of Asquith J. was that a person who voluntarily travels as a passenger with a driver who is known to the passenger to have driven negligently in the past cannot properly be regarded as volens to future acts of negligence by the driver. Should it then make any difference that the driver is likely to drive negligently on the material occasion, not because he is shown to have driven negligently in the past, but because he is known by the plaintiff to be under the influence of drink? Asquith J. thought not and held that the plaintiff by embarking in the car, or re-entering it with the knowledge that through drink the driver had materially reduced his capacity for driving safely, did not implicitly consent to or absolve the driver from liability from any subsequent negligence on his part whereby she might suffer harm.
Having reached that conclusion, however, Asquith J. at page 518 continued as follows:
“There may be cases in which the drunkenness of the driver at the material time is so extreme and so glaring that to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation, intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff. It is not necessary to decide whether in such a case the maxim ‘violenti non fit injuria’ would apply, for in the present case I find as a fact that the driver’s degree of intoxication fell short of this degree”.
The question before us, I think, is whether, as a matter of law, there are such cases as Asquith J. refers to and, if so, whether this present case is one of them.
As to the first of these questions there is a fundamental issue whether the volenti doctrine applies to the tort of negligence at all. In Woldridqe v. Sumner [1963] 2 QB 43 at page 69 Diplock L.J. said:
“… In my view, the maxim in the absence of expressed contract has no application to negligence simpliciter where the duty of care is based solely on proximity or ‘neighbourship’ in the Atkinian sense. The maxim in English law presupposes a tortious act by the defendant. The consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk … and requires on the part of the plaintiff at the time at which he gives his consent full knowledge of the nature and extent of the risk that he ran”.
Asquith J. himself raised the same question in Dann v. Hamilton at pages 516-517. He drew a distinction between two kinds of case. First, where a dangerous physical condition has been brought about by the negligence of the defendant and, after it has arisen, the plaintiff -fully appreciating its dangerous character elects to assume the risk. In that sort of case Asquith J. regarded the volenti maxim as capable of applying. That, however, is not this case. Diplock L.J. indeed would not have regarded the maxim as truly applicable and was of the opinion that the correct test of liability of the person creating the risk was whether it was reasonably foreseeable by him that the plaintiff would so act in relation to it as to endanger himself – which is the principle of the “rescue” cases.
The second class of case was where the act of the plaintiff relied on as a consent precedes and is claimed to licence in advance a possible subsequent act of negligence. Dann v. Hamilton itself was an instance of that class in which Asquith J. held on the facts the maxim not to be applicable. But as I have indicated he left open the question of extreme cases. Lord Diplock’s observations in Woldridge v. Sumner were in relation to a case which was concerned with injury to a spectator at a sporting event. He said at page 67:
“The matter has to be looked at from the point of view of the reasonable spectator as well as the reasonable participant; not because of the maxim volenti non fit injuria, but because what a reasonable spectator would expect a participant to do without regarding it as blameworthy is as relevant to what is reasonable care as what a reasonable participant would think was blameworthy conduct in himself. The same idea was expressed by Scrutton L.J., in Hall v. Brooklands: ‘What is reasonable care would depend upon the perils which might reasonably be expected to occur, and the extent to which the ordinary spectator might be expected to appreciate and take the risk of such perils” (Diplock L.J.’s emphasis).
But a participant may, to the damage of a spectator, do something which a reasonable spectator in the context of the sport as it is normally understood would never anticipate. That may be negligence simpliciter and, since the spectator could not contemplate it, he could not be met by the defence of volenti. But in a case, such as the present, where a person voluntarily decided to participate in something which is itself necessarily dangerous, it seems to me that different considerations must arise.
Nettleship v. Weston (supra) was a case of a driving instructor injured by the negligent driving of the pupil. It is not, as a decision, of much relevance to the present case since, before giving the lesson, the instructor had asked for and obtained an assurance that there was in existence a policy of insurance. He was in fact shown a comprehensive policy which covered a passenger. That was unhopeful ground for a volens plea. There are, however, observations of Lord Denning and Salmon L.J. to which I should refer. Lord Denning at page 201 said:
“Knowledge of the risk of injury is not enough. Nothing will suffice short of an agreement to waive any claim for negligence. The plaintiff must agree expressly or impliedly to waive any claim for any injury that may befall him due to the lack of reasonable care by the defendant: or more accurately due to the failure by the defendant to measure up to the duty of care which the law requires of him”.
Salmon L.J. in the same case (at page 704) adopted, in a dissenting judgment a different approach. He said that if, to the knowledge of the passenger, the driver is so drunk as to be incapable of driving safely, a passenger having accepted a lift cannot expect the driver to drive other than dangerously. The duty of care, he said, springs from relationship. The relationship which the passenger has created in accepting a lift in such circumstances, cannot entitle him to expect the driver to discharge a duty of care which the passenger knows that he is incapable of discharging. The result is that no duty is owed by the driver to the passenger to drive safely. The difficulty about this analysis is that it may tend to equate “sciens” with “volens” – which is not the law. However, there must be cases where the facts are so strong that “volens” is the only sensible conclusion. Salmon L.J. said that, alternatively, if there is a duty owed to the passenger to drive safely, the passenger by accepting the lift clearly assumed the risk of the driver failing to discharge that duty.
I doubt whether the gap between Lord Denning’s approach and that of Salmon L.J. is a very wide one. On the one hand you may have an implicit waiver of any claims by reason of an exhibited notice as to the assumption of risk (see Bennett v. Tuqwell [1971] 2 W.L.R. 847 – which was decided before the Road Traffic Act 1972). On the other hand, if it is evident to the passenger from the first that the driver is so drunk that he is incapable of driving safely, the passenger must have accepted the obvious risk of injury. You may say that he is volens or that he has impliedly waived the right to claim or that the driver is impliedly discharged from the normal duty of care. In general, I think that the volenti doctrine can apply to the tort of negligence, though it must depend upon the extent of the risk, the passenger’s knowledge of it and what can be inferred as to his acceptance of it. The passenger cannot be volens (in the absence of some form of express disclaimer) in respect of acts of negligence which he had no reason to anticipate and he must be free from compulsion. Lord Pearce in Imperial Chemical Industries v. Shatwell 1965 AC 656 at 687 said:
“… as regards common law negligence the defence of volenti non fit injuria is clearly applicable if there was a genuine full agreement, free from any kind of pressure, to assume the risk of loss. In Williams v. Port of Liverpool Stevedoring Co. Ltd. [1956] 1 W.L.R. 551, Lynskey J. rejected the defence where one stevedore was injured by a deliberate negligence of the whole gang (to which the plaintiff gave ‘tacit consent’) in adopting a dangerous system of unloading. There was an overall duty on the master to provide a safe system of work, and it is difficult for one man to stand out against his gang. In such circumstances one may not have that deliberate free assumption of risk which is essential to the plea and makes it as a rule unsuitable in master and servant cases owing to the possible existence of indefinable social and economic pressure. If the plaintiff had been shown to be a moving spirit in the decision to unload in the wrong manner it would be different. But these are matters of fact and degree”.
We were referred to the case of Slater v. Clay Cross (supra) but in that case the plaintiff, while she could be regarded as accepting the risks of walking down a narrow railway tunnel (which she and other villagers had long been in the habit of using as a short cut) she did not accept the risk that the driver would drive the train negligently.
Before coming to the facts it is perhaps worth noting how the volenti doctrine is stated. Lord Herschell in Smith v. Baker [1891] AC 325 said at page 360:
“… The maxim is founded on good sense and justice. One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong”.
If the plaintiff had himself been sober on the afternoon of the flight it seems to me that, by agreeing to be flown by Mr. Murray, he must be taken to have accepted fully the risk of serious injury. The danger was both obvious and great. He could not possibly have supposed that Mr. Murray, who had been drinking all the afternoon, was capable of discharging a normal duty of care.
But as he himself had been drinking, can it be assumed that he was capable of appreciating the risks? The matter was not very deeply examined at the trial, but he was certainly not “blind drunk”. In cross-examination, he agreed with the description “merry”. He was capable of driving a car from the Blue Boar to the airfield; and he did so for the purpose of going on a flight with Mr. Murray. He helped to start the aircraft and fuel it. Immediately before take-off he asked Mr. Murray whether he should not “radio in” (a sensible inquiry). None of this suggests that his faculties were so muddled that he was incapable of appreciating obvious risks. Moreover, he gave no specific evidence to the effect “I was really too drunk to know what I was doing”. Nor did anyone else give such evidence about him.
He was asked, and answered as follows (Transcript page 37G):
“Q Looking back on it now, Mr. Morris, you must have been aware that Murray had been drinking too much, do you agree? A. As I had too much to drink I probably had not noticed that he had.
Q. I understand that, but I ask you to look back on it. A. Looking back, yes, definitely”.
In my opinion, on the evidence the plaintiff knew that he was going on a flight; he knew that he was going to be piloted by Mr. Murray; and he knew that Mr. Murray had been drinking heavily that afternoon. The plaintiff’s actions that afternoon, from leaving the Blue Boar to the take-off suggest that he was capable of understanding what he was doing. There is no clear evidence to the contrary. I think he knew what he was doing and was capable of appreciating the risks. I do not overlook that the plaintiff’s evidence was that, if he had been sober, he would not have gone on the flight. That is no doubt so but it does not establish that he was in fact incapable of understanding what he was doing that afternoon.
If he was capable of understanding what he was doing, then the fact is that he knowingly and willingly embarked on a flight with a drunken pilot. The flight served no useful purpose at all; there was no need or compulsion to join it. It was just entertainment. The plaintiff co-operated fully in the joint activity and did what he could to assist it. He agreed in evidence that he was anxious to start the engine and to fly. A clearer source of great danger could hardly be imagined. The sort of errors of judgment which an intoxicated pilot may make are likely to have a disastrous result. The high probability was that Mr. Murray was simply not fit to fly an aircraft. Nothing that happened on the flight itself suggests otherwise -from the take-off down wind to the violence of the manoeuvres of the plane in flight.
The situation seems to me to come exactly within Lord Asquith’s example of the case “where the drunkenness of the driver at the material time is so extreme and so glaring that to accept a lift from him is like engaging in an intrinsically and obviously dangerous operation”. I think that in embarking upon the flight the plaintiff had implicitly waived his rights in the event of injury consequent on Mr. Murray’s failure to fly with reasonable care.
The facts go far beyond Dann v. Hamilton, Nettleship v. Weston and Slater v. Clay Cross. It is much nearer to the dangerous experimenting with the detonators in I.C.I, v. Shatwell (supra). I would conclude, therefore, that the plaintiff accepted the risks and implicitly discharged Mr. Murray from liability from injury in relation to the flying of the plane.
The result, in my view, is that the maxim volenti non fit injuria does apply in this case. The judge appears to have been influenced by the fact that Mr. Murray managed to get the plane airborne. He did, but the take-off down wind was irregular and the bizarre movements of the plane in flight must raise the greatest doubts whether he was in proper control of it. The judge thought that the case was analogous to Owens v. Brimmell [1977] 1 Q.B. 849. But the volenti defence was not in issue in that case.
Considerations of policy do not lead me to any different conclusion. Volenti as a defence has, perhaps, been in retreat during this century – certainly in relation to master and servant cases. It might be said that the merits could be adequately dealt with by the application of the contributory negligence rules. The judge held that the plaintiff was only 20 per cent to blame (which seems to me to be too low) but if that were increased to 50 per cent, so that the plaintiff’s damages were reduced by half, both sides would be substantially penalised for their conduct. It seems to me, however, that the wild irresponsibility of the venture is such that the law should not intervene to award damages and should leave the loss where it falls. Flying is intrinsically dangerous and flying with a drunken pilot is great folly. The situation is very different from what has arisen in motoring cases.
I should mention that the defence of volenti has been abrogated in relation to passengers in motor vehicles covered by comprehensive insurance (Road Traffic Act 1972, section 148). It is not suggested, however, that there is any similar enactment relating to aircraft and applicable to this case.
In the circumstances, I do not need to deal with the quantum of damages upon which the defendants appeal. As to the question of devastavit by the administrators upon which there has been argument before us, I do not think this is a matter for this action. This is an action for damages for personal injuries. The question of devastavit, it seems to me, is one to be raised in administration proceedings if damages were awarded but not paid or not paid in full.
LORD JUSTICE STOCKER: I adopt with gratitude the exposition of the facts set out in the judgment of Fox L.J., which I have read in draft. I add observations of my own since we are differing from the conclusion of the learned judge and in deference to the detailed arguments which have been addressed to us by counsel on both sides and because, so far as I am aware, the facts of the case are unique and raise matters of some importance.
This appeal is not concerned with precise formulation of the elements necessary to support a plea of volenti non fit injuria. It is sufficient for the purpose of this case to accept, as counsel on both sides have done, that in order to defeat an otherwise valid claim on the basis that the plaintiff was volens the defendant must establish that the plaintiff at the material time knew the nature and extent of the risk and voluntarily agreed to absolve the defendant from the consequences of it by consenting to the lack of reasonable care that might produce the risk. It is common ground and long established that knowledge of the risk is not sufficient but there must also be consent to bear the consequences of it. This appeal is concerned with the application of the doctrine to the facts of the case. We have been referred to a number of cases illustrative of the application of the maxim to the facts of the case in question. It is clear that there are two main categories of case in which this problem falls to be considered, viz. (1) Where the relevant breach of duty precedes the exposure of the victim to the risk of injury. Such cases may involve a “rescue” situation, but in general present problems which are simpler to solve than the second category since the nature and the extent of the risk can more readily be assessed where the dangerous situation has already been created. The second category in which the application of the maxim falls to be considered arises in circumstances where the question of volenti arises in advance of the negligent act which creates the danger. In such cases the question is whether or not there is some factor known to the plaintiff from which he should conclude that a risk is likely to be created by the existence of that factor. In the instant case and in several of the cases in which this situation has fallen to be examined the relevant factor is the state of intoxication of the defendant. This category also includes cases in which the person injured is a spectator at a game or contest to which the public are admitted. Though of assistance to the resolution of the instant appeal such a case usually involves considerations which do not here arise. Cases in which the intoxication of the defendant constitutes the relevant condition from which the application of the doctrine is to be considered usually relate to motoring cases in which the injured plaintiff is a passenger in a motor car driven by a defendant who has exhibited a greater or lesser degree of intoxication.
We have been referred to a number of cases decided both in the courts of this country and in Dominion jurisdictions. Though many of them contain dicta with regard to the precise formulation of the doctrine and its legal effect they are relevant to the issues that arise in this appeal in three respects:
(1) To the question whether the maxim can ever been applied in cases in which the negligence – i.e., the breach of duty of care – arises solely out of the Donoqhue v. Stevenson concept of a duty owed by one person to another without that duty being imposed by any special relationship such as master and servant or occupier and licensee.
(2) Whether or not the appropriate method of reflecting the plaintiff’s own responsibility in such circumstances is through contributory negligence rather than through the principle of volenti.
(3) As examples of the application of the maxim in comparable situations.
It is in respect of these matters that the authorities cited to us fall to be considered.
The appropriate starting point is the case of Dann v. Hamilton [1939] 1 K.B. 509. The facts of that case were that the plaintiff knew that the driver of the car in which she was a passenger was under the influence of drink and therefore the chances of an accident were substantially increased. Nevertheless, she chose to remain in the car and was injured owing to the negligent driving of the defendant. She had previously made a remark “if anything is going to happen, it will happen”.
Asquith J. considered textbook and other authorities to the effect that the maxim had no application to the law of negligence and to the fact that most authorities were concerned with what I have described as the first category of case in which the maxim has arisen viz. where the negligent act has already occurred before the plaintiff is exposed to risk from it. The judge did not deal with contributory negligence since he was not invited by counsel to do so. He expressed his decision in these terms at pages 518 and 519:
“… Then, to take the last step, suppose that such a driver is likely to drive negligently on the material occasion, not because he is known to the plaintiff to have driven negligently in the past, but because he is known to the plaintiff to be under the influence of drink. That is the present case. Ought the risk to be any different? After much debate I have come to the conclusion that it should not, and that the plaintiff, by embarking in the car, or re-entering it, with knowledge that through drink the driver had materially reduced his capacity for driving safely, did not impliedly consent to, or absolve the driver from, liability for any subsequent negligence on his part whereby she might suffer harm.
There may be cases in which the drunkenness of the driver at the material time is so extreme and so glaring that to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation, intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff, it is not necessary to decide whether in such a case the maxim volenti non fit injuria would apply, for in the present case I find as a fact that the driver’s degree of intoxication fell short of this degree. I therefore conclude that the defence fails and the claim succeeds. I arrive at this conclusion with the less reluctance in that it would be unjust that the deceased man’s estate should be protected from suit by the mere fact that he got drunk before committing the final act of negligence, whereas, if he had committed the same act when sober, his estate would have been liable”.
It seems to me that this judgment was one of fact rather than law since Asquith J. clearly envisaged examples in which the application of the maxim could defeat a plaintiff’s claim. This decision has met with criticism both by academic writers and by judges in subsequent cases. In some cases his decision has been applied and in others rejected.
In Insurance Commission v. Joyce 77 C.L.R. 39 the High Court of Australia was faced with a situation which did not differ greatly from the facts in Dann v. Hamilton. An accident was caused by the negligence of the driver of a car due to his intoxication and his passenger, the plaintiff, was injured. As neither the plaintiff nor the defendant gave evidence there was considerable doubt about the proper finding on causation and it was this fact which induced Dixon J. to dissent from the views of his brethren. The majority of the court, Latham C.J. and Rich J., held that the plaintiff’s claim failed though they differed as to their grounds for so holding. Dixon J. considered that case of Dann v. Hamilton and cited the passage already set out in this judgment and said, at page 57:
“If he knowingly accepts the voluntary services of a driver affected by drink, he cannot complain of improper driving caused by his condition, because it involves no breach of duty”.
“The second principle that has been applied is that referred in English law to the title volenti non fit injuria under which is placed the voluntary assumption of risk which in the United States seems to exist as a separate rule. Here, too, some actual notice of the state of the driver must be necessary. But of course knowledge of what is apparent may readily be inferred. The result of the application of this principle, it may be thought, should not differ from the result brought about by the first”.
And later at page 59 he considers the decision of Dann v. Hamilton and cites the passage which has already been set out in this judgment. He concludes:
“No doubt the issue his Lordship propounded for decision was one of fact but, with all respect, I cannot but think that the plaintiff should have been precluded. Every element was present to form a conscious and intentional assumption of the very risk for which she suffered”.
It is clear there that Dixon J. would have found the maxim established in Dann v. Hamilton and have rejected the plaintiff’s claim, though in fact he preferred the solution to the problem based on the duty which arose out of the relationship of driver to his passenger.
Although not a case involving a motor vehicle or a state of intoxication Dann v. Hamilton was considered by the Court of Appeal in Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B. 264. Stated shortly the facts were that the plaintiff, a pedestrian, used a short tunnel as a walkway in accordance with local usage known to the defendants who had a small gauge railway line running through it. The plaintiff was injured by a train, the driver of which had failed to comply with his instructions with regard to speed and warning signals. Denning L.J. cited the case of Dann v. Hamilton together with the explanation given by Lord Asquith that he considered contributory negligence would have been applied if raised and said at page 270:-
“… In so far as he decided that the doctrine of volenti did not apply, I think the decision was quite correct. In so far as he suggested that a plea of contributory negligence might have been available, I agree with him.
Applying that decision to this case, it seems to me that when this lady walked in the tunnel, although it may be said that she voluntarily took the risk of danger from the running of the railway in the ordinary and accustomed way nevertheless she did not take the risk of negligence by the driver. Her knowledge of the danger is a factor in contributory negligence, but is not a bar to the action”.
In my view this case raised questions similar to those which arise in the “spectator sports” cases and involves the question whether or not the negligence giving rise to the injury occurred outside the ambit of the risks inherent in the general use of the tunnel.
I do not read Denning L.J.’s words as meaning more than he approved the decision of Asquith J. in Dann v. Hamilton on its facts.
In 1956 the Supreme Court of Canada in Car & General Insurance Corporation Ltd. v. Seymour and Maloney [1956] 2 Dominion Law Reports 369 considered the position of a passenger injured by the negligent driving of a person who was under the influence of drink. The journey was a long one and the driver did not exhibit symptoms of intoxication at the outset of the journey but did so later. The importance of the position for the purposes of the instant appeal is that the court held that the time at which the application of the maxim volenti non fit injuria is to be considered is the knowledge and consent of the passenger at the time of the inception of the journey. Rand J. rejected the criticism of Dann v. Hamilton by Dixon J. in the Joyce case on this basis.
In Wooldridqe v. Sumner [1963] 2 QB 43, again a spectator sports case, in which a photographer attending the National Horse Show was injured by a horse ridden by a very experienced rider, the object of the competition was to complete the appropriate circuit in the fastest time and the rider was attempting to achieve this and the court found that that rider through an error of judgment had taken a corner too fast and that thereafter, for some other reason, the horse became temporarily out of control. This case is relied upon by the plaintiff in the instant appeal in support of the proposition that the maxim has no application to the tort of negligence “simpliciter”. In his judgment Sellers L.J. said at page 57:
“If the conduct is deliberately intended to injure someone whose presence is known, or is reckless and in disregard of all safety of others so that it is a departure from the standards which might reasonably be expected in anyone pursuing the competition or game, then the performer might well be held liable for any injury his act caused. There would, I think, be a difference for instance in assessing the blame which is actionable between an injury caused by a tennis ball hit or a racket accidentally thrown in the course of play into the spectators at Wimbledon and a ball hit or a racket thrown into the stands in temper or annoyance when play was not in progress.
The relationship of spectator and competitor or player is a special one, as I see it, as the standard of conduct of the participant, as accepted and expected by the spectator, is that which the sport permits or involves. The different relationship involves its own standard of care.”.
“… In my view, the maxim in the absence of expressed contract has no application to negligence simpliciter where the duty of care is based solely upon proximity or ‘neighbourship’ in the Atkinian sense. The maxim in English law pre-supposes a tortious act by the defendant. The consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care that may produce that risk (see Kelly v. Farrans Ltd. [1954] N.I. 41 per Lord MacDermott), and requires on the part of the plaintiff at the time at which he gives his consent full knowledge of the nature and extent of the risk that he ran”.
He then cites authorities in support of that proposition and continues:
“In Dann v. Hamilton Asquith J. expressed doubts as to whether the maxim ever could apply to license in advance of a subsequent act of negligence, for if the consent precedes the act of negligence the plaintiff cannot at that time have full knowledge of the extent as well as the nature of the risk which he will run. Asquith J. however, suggested that the maxim might nevertheless be applicable to cases where a dangerous physical condition had been brought about by the negligence of the defendant, and the plaintiff with full knowledge of the existing danger elected to run the risk thereof”.
It is clear that Diplock L.J. was expressing this view in the context of the facts of the case then before him and it seems to me that the meaning that he was seeking to express is to be derived by earlier passages in his judgment. At page 66 Diplock L.J. said, after citing the case of Hall v. Brooklands Auto-Racing Club:
“… In which the actual participants in the game or competition have been sued as well as the occupiers of the premises on which it took place, but juries have acquitted the participants of negligence and the cases are reported only upon the duty owed by an occupier of premises to invitees. Such duty is not based upon negligence simpliciter but flows from a consequential relationship between the occupier and the invitee; there is thus no conceptual difficulty in implying a term in that consensual relationship (which in the reported cases has in fact been a contractual relationship) that the occupier need take no precautions to protect the invitee from all or from particular kinds of risk incidental to the game or competition which the spectator has come upon the premises to watch.
In the case of a participant however, any duty of care which he owed to the spectator is not based upon any consensual relationship between them but upon mere ‘proximity’ if I may use that word as a compendious expression of what makes one person a ‘neighbour’ of another in the sense of Lord Atkin’s definition in Donoqhue v. Stevenson …”
“The matter has to be looked at from the point of view of the reasonable spectator as well as the reasonable participant; not because of the maxim volenti non fit injuria, but because what a reasonable spectator would expect a participant to do without regarding it as blameworthy is as relevant to what is reasonable care as what a reasonable participant would think was blameworthy conduct in himself. The same idea was expressed by Scrutton L.J. in Hall v. Brooklands: ‘What is reasonable care would depend upon the perils which might reasonably be expected to occur, and the extent to which the ordinary spectator might be expected to appreciate and take the risk of such perils“.
It seems to me that the sense in which Diplock L.J., therefore, was making the remarks cited at page 69 is that he was drawing a distinction between dangers created in the actual course of the game or contest even if through some casual lack of care of skill and the situation which arises where a spectator is injured by some negligent or reckless act by a participant which occurs quite outside the ambit of the game in question. In such a case the spectator’s cause of action will necessarily have to be based upon the Atkinian neighbour principle since that is the nature of the duty which the competitor would owe to the spectator in those particular circumstances. It seems to me, therefore, that the maxim would not apply in those circumstances since whereas the spectator would anticipate danger from the performance of the game itself he could not anticipate or condone in advance something which he could not possibly foresee as being likely to occur.
For my part I do not derive great assistance from the case of Nettleship v. Weston (C.A.) [1971] 2 QB 691 since although it concerned a claim by a passenger against a driver it was not a case of intoxication. The passenger had offered to give driving lessons to the wife of a friend. Before doing so he had enquired whether or not there was in force a policy of insurance and he was given the assurance that there was and was shown a fully comprehensive policy which covered a passenger in the event of accident. It therefore seems to me quite clear that the maxim would have no application – he did not consent to accept the risk of injury or condone in advance the learner’s negligence. I find it therefore surprising that reliance was placed upon the maxim at all. Observations by the members of the court have to be read in the light of those facts. At page 701G Lord Denning M.R. said:
“… The plaintiff must agree, expressly or impliedly, to waive any claim for injury that may befall him due to the lack of reasonable care by the defendant; or, more accurately, due to the failure of the defendant to measure up to the standard of care that the law requires of him. That is shown in England by Dann v. Hamilton [1939] 1 K.B. 509; and Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B. 264; and in Canada by Lehnert v. Stein (1962) 36 D.L.R. (2d); and in New Zealand by Morrison v. Steamship Co. Ltd. of New Zealand [1964] N. Z. L.R. 468. The doctrine has been so severely curtailed that in the view of Diplock L.J. …”
and (on page 69) he cites the passage which I have already set out in this judgment. Lord Denning continued:
“Applying the doctrine in this case it is clear that Mr. Nettleship did not agree to waive any claim for injury that might befall him. Quite the contrary, he enquired about the insurance policy so as to make sure that he was covered”.
“Any driver normally owes exactly the same duty to a passenger in his car as he does to the general public, namely, to drive with reasonable care and skill in all the relevant circumstances. As a rule, the driver’s personal idiosyncrasy is not a relevant circumstance. In the absence of a special relationship what is reasonable care and skill is measured by the standard of competence usually achieved by the ordinary driver. In my judgment, however, there may be special facts creating a special relationship which displaces this standard or even negatives any duty, although the onus would certainly be upon the driver to establish such facts. With minor reservations I respectfully agree with and adopt the reasoning and conclusions of Sir Owen Dixon in his judgment in The Insurance Commissioner v. Joyce. I do not agree that the mere fact that the driver has, to the knowledge of his passenger, lost a limb or an eye or is deaf can affect the duty which he owes the passenger to drive safely. It is well known that many drivers suffering from such disabilities drive with no less skill and competence than the ordinary man. The position, however, is totally different when, to the knowledge of the passenger, the driver is so drunk as to be incapable of driving safely. Quite apart from being negligent, a passenger who accepts a lift in such circumstances clearly cannot expect the driver to drive other than dangerously.
The duty of care springs from relationship. The special relationship which the passenger has created by accepting a lift in the circumstances postulated surely cannot entitle him to expect the driver to discharge a duty of care or skill which ex hypothesi the passenger knows the driver is incapable of discharging. Accordingly, in such circumstances, no duty is owed by the driver to the passenger to drive safely, and therefore no question of volenti non fit injuria can arise.
The alternative view is that if there is a duty owed to the passenger to drive safely, the passenger by accepting a lift has clearly assumed the risk of the driver failing to discharge that duty. What the passenger has done goes far-beyond establishing mere ‘scienter‘. If it does not establish ‘volens’, it is perhaps difficult to imagine what can.
Such a case seems to me to be quite different from Smith v Baker & Sons [1891] AC 325 and Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B. 264. Like Sir Owen Dixon, I prefer to rest on the special relationship between the parties displacing the prima facie duty on the driver to drive safely rather than on the grounds of volenti non fit injuria. Whichever view is preferable, it follows that, in ! spite of the very great respect I have for any judgment of Lord Asquith, I do not accept that Dann v. Hamilton [1939] 1 K.B.509 was correctly decided …
I should like to make it plain that I am not suggesting that whenever a passenger accepts a lift knowing that the driver has had a few drinks, this displaces the prima facie duty ordinarily resting on a driver, let alone that it establishes volenti non fit injuria. Indeed, Sir Owen Dixon dissented in Joyce’s case, because he did not agree that the evidence was capable of establishing that the plaintiff passenger knew that the driver was so drunk as to be incapable of exercising ordinary care and skill. In practice it would be rare indeed that such a defence could be established”.
In Bennett v. Tuqwell [1971] 2 W.L.R. 847 Ackner J. considered the effect of the maxim volenti non fit injuria in the light of an express notice “Passengers entering this vehicle do so at their own risk” which had been exhibited by the defendant upon his father’s motor car which he was driving. The relevance of the decision to the instant appeal lies in the view which Ackner J. took as to the question whether or not an injured passenger is volens is an objective and not a subjective one. He said at page 851H:
“Can the defendant invoke the defence of ‘volenti non fit injuria’? The gist of this defence is not so much the assent to the infliction of injury as the assumption of the risk of such injury: …”
Then he cites Fleming on Torts and Salmond on Torts, and continues:
“Mr. Levene submits that a subjective test is the appropriate one and that I am concerned with what is in the innermost recesses of the parties’ minds. I do not accept that this is so. What is required is an objective approach. Legal enquiry into a person being ‘volens’ is not into what he feels or inwardly consents to, but into what his conduct or words evidence what he is consenting to: …”.
This is a matter which arises on this appeal and I will have to consider hereafter when I turn to the more detailed facts of this case.
Support for the proposition that the appropriate method by which to reflect a passenger’s voluntary assumption of risk is by apportionment on the basis of contributory negligence rather than the application of the volenti maxim is to be derived from the judgment of Watkins J. in Owens v. Brimmell [1977] Q.B. 859. In my view the judge based his conclusion on the fact that the authorities entitled him to treat the matter as one of contributable negligence rather than a finding that the claim was barred by the application of the principle of volenti. Other authorities base the decision on the application of that maxim.
In Ashton v. Turner and Anr. [1981] 1 Q.B. 137 Ewbank J. having found against the plaintiff on the basis of public policy also found that the volenti maxim would have defeated his claim also since the plaintiff knew that the driver was in an intoxicated condition.
The last authority to which I feel it is necessary to refer is a recent case in this court of which we have been provided with the handed-down version of the judgment. That is the case of Andrew James Pitts, v. the Personal Representatives of Mark James Hunt, deceased and Richard Mark Jewell. The facts were that the plaintiff, who was 18 years of age, was a pillion passenger on a motor cycle driven by the defendant who was 16 years of age. To the plaintiff’s knowledge the defendant rider of the motor cycle was neither insured nor had he a licence. The driving followed nearly four hours of attendance at a disco in which a substantial amount of drink had been taken by both. The judge described the driving as “reckless, irresponsible and idiotic”, and it was found that the method of driving was deliberate in order to frighten the public. The learned judge and the Court of Appeal dismissed the plaintiff’s appeal against the rejection of his claim on three grounds. Firstly that they were engaged in a joint illegal enterprise and that the claim was barred by the maxim ex turpi causa non oritur actio. The learned judge also found that the claim would be defeated on the basis of the maxim volenti non fit injuria, but for the fact that that defence was not possible in the context of a motor accident by virtue of section 148(iii) of the Road Traffic Act 1972. Beldam L.J. clearly found that this statutory provision did prevent the operation of the maxim but equally clearly was of the view that but for the provision the maxim would have operated to defeat the plaintiff’s claim. At page 24 he said:
“As to the defence raised that the appellant voluntarily undertook to run the risk of injury by taking part in such a foolhardy, risky and illegal activity, I would have been prepared to say that it was obvious from the description of the appellant’s behaviour whilst he was participating that he had done so. However the learned judge accepted that the effect of section 148(iii) of the Road Traffic Act was that any agreement or understanding that the risk of injury would be the appellant’s was of no effect”.
He then continued by considering whether or not the judge was correct in so interpreting that provision of the Road Traffic Act. Balcombe and Dillon L.JJ. both considered that the defence of volenti could not be relied upon by virtue of that statutory provision, but neither dissented from the view expressed by Beldam L.J. as to the application of the maxim had it not been for that statutory provision.
I have referred to these authorities at some length in order to resolve the questions to which I have already referred.
As to the first and second questions, is the maxim volenti non fit injuria available as a defence in a case which is concerned with the tort of negligence? Or is the appropriate procedure to deal with the matter on the basis of contributory negligence?
I have no doubt that in appropriate cases the maxim can apply so as to defeat the plaintiff’s claim. It has been held to be so in a number of cases which have been cited and was so held in the recent case of Pitts to which I have just referred. For the reasons that I have already given I consider that Diplock L.J.’s dicta, approved as it was by Lord Denning in Nettleship v Weston, was not intended to apply to a driver/ passenger situation. This is so because, as I believe, it was not intended so to apply or on the basis that a special relationship does exist between a driver and his passenger. Where a plaintiff is aware that his driver is to some extent intoxicated his responsibility can be reflected by an apportionment on the basis of contributory negligence. Whether such a course is appropriate or whether the maxim volenti applies depends upon the facts of each case. In particular it is relevant to consider the degree of intoxication and the nature of the act to be performed by the driver. In motoring cases it may well be that an apportionment on the basis of contributory negligence will usually be the appropriate course but in my view to pilot an aircraft requires a far higher standard of skill and care than driving a motor car and the effect of intoxication becomes all the more important. It seems to me from the authorities cited that this is the approach which the courts ought to apply to this problem – How intoxicated was the driver? How obvious was this to the plaintiff, and the extent of the potential risk to the plaintiff if he voluntarily accepts the offer of carriage?
In the light of these observations I turn next to the crucial issue in this case. Did the plaintiff voluntarily accept the risk of injury, and of the defendant’s likely breach of duty in negligence with full knowledge of the facts?
I therefore first consider the position on the basis that the plaintiff himself was sober, or at least not so intoxicated as the result of alcohol as to be incapable of assessing the risk. I would unhesitatingly answer this question “yes”. The facts were:
1. The deceased pilot had consumed at least the equivalent of 17 whiskies and when absorption rate is considered over the period of time involved must, in fact, have consumed rather more.
2. The plaintiff was drinking with him over several hours and knew how much the defendant had had to drink.
3. The risk of accident was manifest to any sober person when the activity to be carried out involves flying an aeroplane. The risk is far greater than driving a car in a similar condition of insobriety. The plaintiff had flown with the deceased pilot before; he co-operated and, indeed, encouraged the deceased pilot throughout; he drove the pilot to the airfield and filled the aeroplane with aviation spirit. The purpose of going to the airfield can only have been to fly in the aircraft. That the pilot was in fact incapable of flying the aircraft is demonstrated by a number of factors. Firstly he took off down wind and uphill, a highly dangerous manoeuvre itself, and in fact only just managed to get airborne shortly fore the end of the runway. Evidence suggests that the aircraft was out of control virtually at all times thereafter.
4 The plaintiff not only accepted the offer of being taken for a joy ride in the aircraft, but actively sought it. Discussion as to this possibility had taken place at the first public house, the Red Lion in Harlow, and again took place at the Blue Boar when the deceased pilot was present. Without the plaintiff’s co-operation the flight in the aircraft could never have taken place at all since the deceased pilot had no motor car and the other man was disqualified from driving.
Thus on the basis that the plaintiff himself was capable of appreciating the full nature and extent of the risk and voluntarily accepted it, I would have no doubt whatever that this maxim would have applied to defeat his claim. If this was not a case of volenti non fit injuria I find it very difficult to envisage circumstances in which that can ever be the case.
However, the position is that the plaintiff himself must have consumed an amount of drink not dissimilar to that consumed by the deceased pilot and, therefore, the question falls to be considered whether or not his own condition was such as to render him incapable of fully appreciating the nature and extent of the risk and of voluntarily accepting it.
This matter does not seem to have been canvassed to any great extent in evidence and was not argued in any great detail before this court. Passages possibly relevant to it appear from the transcript of the evidence. At page 37G he was asked:
” Looking back on it now, Mr. Morris, you must have been aware that Murray had been drinking too much, do you agree? A. As I had had too much to drink, I probably had not noticed that he had”.
“Do you think now – I know you have had an accident, perhaps it is a bit unfair – do you accept that flying in a private aeroplane is an intrinsically dangerous pastime? Do you agree with that? Yes, I do.
Q What do you think about flying in a private aeroplane with a drunken pilot? What is your view about that? A. It is a silly thing to do.
Q Do you say that had you been sober you would not have done it, is that what you say? A. No doubt.
Q But you say the reason why you went was because you yourself had been drinking, is that right? A. That is correct.
Q You were not so drunk that you were unconscious, were you? You were merry, is that a way of putting it? A. I would say so”.
“Who drove to the aerodrome? A. I do not recall, but I assume it was me”.
At letter F-H on page 38 the following questions and answers occurred:
“Q … you were anxious to get on this flight, were you not? A. I was anxious to start the engine.
Q And to fly? A. Well, I imagine so.
Q Had you been sober you would have been aware that if you fly with a drunken pilot there is a danger that you could crash? A. I agree.
Q Had you been sober you would not have gone, is that correct? A. Yes, I believe so”.
These answers in my view have to be read in the context of the express finding of fact by the judge that the plaintiff’s memory was episodic by reason of his injuries. Unhappily, the learned judge did not seem to consider at all the problem which arises in the context of the plaintiff’s own state of intoxication. This may well be because it does not seem to have been canvassed except in the sense indicated by the passages cited above. It has been submitted to this court that the proper test of this, that is to say the plaintiff’s appreciation of the risk, and his consent to it, is an objective one and the passage which I have cited from Ackner J. in Bennett v. Tugwell is relied upon. I do not, for my part, go so far as to say that the test is an objective one (though if it is not a paradoxical situation arises that the plaintiff’s claim could be defeated by the application of the maxim if he was sober, but he could recover damages if he was drunk), but unless there is specific evidence either from the plaintiff himself or from some other source that the plaintiff was in fact so intoxicated that he was incapable of appreciating the nature and extent of the risk and did not in fact appreciate it, and thus did not consent to it, it seems to me that the court is bound to judge the matter in the light of the evidence which is put before it for consideration. In this case the plaintiff did not say “I did not appreciate the risk as I was too drunk”. What he did say was that, looking back on it, he would not have gone on the flight had he not been drunk. This is a wholly different proposition. The evidence seems to me to establish that the plaintiff was not so drunk as to be incapable of appreciating the risk or of knowing really the state of intoxication of the deceased pilot. Amongst the factors which tend to this conclusion seem to me to be that he himself drove the car to the aerodrome with no other object than of going on a flight with the deceased pilot. He himself assisted to start the engine by swinging the propeller and filling it with petrol. He queried with the pilot whether he should “radio in” to Control. I do not feel that he can have done these things if he was in any way seriously incapacitated by alcohol or unaware of knowing just what it was he was doing. He must have known a number of facts such as the amount of drink the deceased pilot had taken and the risks in general terms at least of flying in an aircraft. He was not himself so drunk as to be in a state of incomprehension. He himself assented to the proposition that he was “merry”. In my view, therefore, there was no evidence before the judge, even if the matter had been fully canvassed, which could have justified the proposition that the plaintiff’s own condition was such as to render him incapable of appreciating the nature of the risk and its extent or indeed that he did in fact fail to appreciate the nature and extent of such risk. My conclusion, therefore, is that this case does fall within the exceptional circumstances stated by Asquith J. in Dann v. Hamilton. I quote again:
“There may be cases in which the drunkenness of the driver at the material time is so extreme and so glaring that to accept a lift from him is like engaging in an intrinsically and obvious dangerous occupation”.
To accept a flight in an aeroplane piloted by a pilot who has had any significant amount of drink, let alone the amount which manifestly this pilot had had, is to engage in an intrinsically and obviously dangerous occupation. For these reasons, in my judgment, the learned judge ought to have found that the plaintiff’s claim should be rejected on the basis of the application of the maxim volenti non fit injuria. It is, in my view, not necessary to refer in any detail to the judgment of the learned judge. He gave his judgment, perhaps unwisely, impromptu. He was referred to the case of Dann v. Hamilton but drew the conclusion that the proper approach in the case was to apply contributory negligence principles rather than those of volenti. Part of his reasons on page 12 are clearly wrongly expressed, either by reason of false transcription or perhaps because he omitted certain sentences from his own note. Although he purported to consider the case of The Insurance Commissioner v. Joyce and Nettleship v. Weston it does not appear that, in fact, he drew any appropriate conclusions from either. Although he cited from the passage of Salmon L.J. in Nettleship v. Weston he did not point out that Salmon L.J. considered that Dann v. Hamilton was wrongly decided. The conclusion of the learned judge is expressed in these terms at page 13 of the judgment:
“In this case it is right to say that the plaintiff was aware that Mr. Murray had been drinking heavily, but Mr. Murray was able, as it were, to start this aeroplane. He even taxied the aeroplane to the place where petrol was sold, paid for the petrol and then was able, albeit in a somewhat inexpert way because his faculties were clearly affected by drink, but he was able to get the plane into the air, albeit it only flew for some three or four minutes before crashing in the way I have described. But, in my view, this is not a case where one can say that the plaintiff consented to run the risk of the actual injuries that he subsequently suffered.
This case falls far short of what would be necessary in order to successfully defend the action on the grounds of volenti non fit injuria. This is a case where, in my view, certainly there was contributory negligence by the plaintiff in that he boarded a plane and allowed himself to be flown when he knew that the defendant had consumed a considerable amount of alcohol”.
In my view the judge clearly drew the wrong conclusion from the fact that the pilot did succeed in getting the aircraft airborne. The correct conclusion, it seems to me, was the fact that he took off down wind, a highly dangerous procedure, indicated he was not capable of flying the aircraft properly
In my view the learned judge really did not consider the full implications of such authorities as were cited to him and for the reasons I have endeavoured to give I think the conclusion that he reached was an incorrect one.
If I am wrong about this and the matter should be considered on the basis of contributory negligence it seems to me that the learned judge was again in error in his apportionment. On the facts that have been recited I could not find that the plaintiff’s own share of responsibility could be assessed at less than 50% and that is the apportionment that for my part I would have made.
In view of the conclusion that I have reached it is not necessary to express any views on any of the other issues. I would simply say that so far as the assessment of damages is concerned it does seem to me that the learned judge’s conclusion was over favourable to the plaintiff with regard to his assessment of past and future earnings and did not sufficiently take into account the full cost of maintaining an infant child over a period of some years. For these reasons I doubt whether the assessment of damage was correct, but express no further view upon the matter.
None of the other issues arise, in my view. There was no point in the learned judge assessing the extent of the defendant’s estate – this was not an issue which arose in the case. His task was simply to find on liability and assess the damages. The other issues such as plene administravit and the question of devastavit were matters for the Chancery Division and should not have been considered by the judge in this action however laudable the attempt to do so in order to save court time may have been.
For the reasons I would allow this appeal and hold that the plaintiff’s claim fails.
I should add that I agree with the comment made (a few weeks ago) by this court sitting in its criminal jurisdiction that urgent steps should be taken to ensure that no aircraft can be flown at all unless there is in force, in relation to all risks a policy of insurance in favour of any third party including a passenger. The aircraft concerned in this accident crashed upon agricultural land with minimal damage to crops. It was out of control and might have crashed anywhere. It does not require any exercise of imagination to envisage that had it crashed upon a main road, or in the centre of a village, that the consequent damage might have been of disaster proportion. Whether the appropriate steps can be taken through administrative channels – e.g. by the refusal of a licence without there being in force a comprehensive policy of insurance of the type to which I have referred, or whether legislation will be required to achieve this end I do not know, but I would hope that urgent consideration will be given to this problem.
SIR GEORGE WALLER: I agree with the judgments of my Lords. I will briefly express my reasons. I do not repeat the account of what happened which has already been set out by my Lords. I would just emphasise certain of the facts before the aircraft took off. The deceased lent the plaintiff and Moran each £10 so that they could each pay for a round of drinks in turn and so between lunchtime and four o’clock each one of the three would have the same number of drinks. Murray had at least the equivalent of 17 whiskies and the plaintiff would have had a similar amount. At four o’clock the plaintiff drove the other two to the airfield for the plaintiff to fly with the deceased. The plaintiff agreed that it was a joy ride. According to his inquest statement the plaintiff had twice flown with the deceased before. When they arrived at the aircraft the plaintiff helped to start it and also to refuel it.
These facts show that the plaintiff was actively co-operating; it was a joy ride for the plaintiff piloted by the deceased who the plaintiff must have known had had a great deal to drink. To fly an aircraft having drink taken is adding to the risk of flying. It is difficult to conceive anything more dangerous than to fly with a pilot who has consumed the equivalent of 17 whiskies. The evidence was that the deceased took off down wind, a major and very dangerous error on his part. With a 20 knot wind he was fortunate to become airborne. It is not clear what happened next save that one witness thought the aircraft was doing a roll and another witness saw it stall and crash to the ground.
The question which arises on this appeal is whether the defence of volenti non fit injuria is made out. There is no previous authority concerning a flying accident in which the pilot was under the influence of alcohol. We have, however, been referred to some cases where a passenger in a motor vehicle has been injured and the driver had been drinking. In Dann v. Hamilton [1939] 1 K.B. 509 Asquith J., while conceding, without deciding, that there may be cases in which the drunkenness of the driver may be so great that to accept a lift might give rise to the maxim volenti non fit injuria, held that on the facts of the case before him where the woman plaintiff continued to accept a lift after the driver had had more drink, the defence of volenti did not arise. There was some criticism of the decision in the legal press, but in Slater v. Clay Cross Co. Ltd. [1956] 2 Q.B. 264 Denning L.J. expressed his agreement with the decision.
In Nettleship v. Weston [1971] 2 QB 691 an experienced driver giving instruction to the wife of a friend suffered injury when the car ran into a lamp post. The Court of Appeal held that the maxim volenti non fit injuria did not apply because the experienced driver had made careful inquiry about insurance before he went in the car. Lord Denning repeated his approval of Dann v. Hamilton but Salmon L.J. did not accept that Dann v. Hamilton was correctly decided and Megaw L.J, expressed doubt as to the correctness of the decision. Other cases have been cited by my Lords but I do not repeat them here.
As I have already mentioned, the plaintiff himself had been drinking, but it does not appear to have been suggested at the trial nor was it suggested in argument before us that the plaintiff had had so much drink that he was not capable of agreeing to accept the risk of injury. No doubt this was because on the facts such a proposition was really unarguable. He had flown before, driven to the airfield and helped to start the plane and he knew what the deceased had had to drink. Although in cross-examination he said that if he had been sober he would not have flown, he was, because of the matters I have mentioned, perfectly capable of making a decision.
The motoring cases to which I have referred were the nearest to the facts of the present case. In my opinion, however there is a fundamental difference between the driving of a motor car and the piloting of a light aeroplane. Flying is much more risky than driving a motor car and requires greater accuracy of control. To fly with a pilot who has taken a small amount of alcohol is to increase the risk. To fly with a pilot who has consumed a large quantity of alcohol is very dangerous indeed. In this case, as I have already said, the plaintiff was taking a very active part in the arrangements. He drove to the airfield; he had flown twice before with the deceased; he helped to start the aircraft; he helped to fill it with petrol; and he had been drinking with the pilot all the afternoon. In my judgment, having engaged himself to take part from the beginning, he not only knew the risks but the only implication is that he agreed to take them. I would allow the appeal against the decision of the learned judge.
I should add that I agree with the observations of Stocker L.J. about contributory negligence and damages.
Order: Appeal allowed, judgment set aside, with costs of appeal and below, not to be enforce without leave of the court; inquiry as to costs against the Legal Aid Board referred to the Registrar legal aid taxation; leave to appeal to House of Lords refused.
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