Legal Case Summary
Dann v Hamilton [1939] 1 KB 509; [1939] 1 All ER 59; 108 LJKB 255; 83 Sol Jo 155; 160 LT 433; 55 TLR 297
NEGLIGENCE, ROAD TRAFFIC ACCIDENT, DEFENCE AGAINST NEGLIGENCE CLAIMS, VOLENTI NON FIT INJURIA, PERSONAL INJURY, INTOXICATION, MOTOR VEHICLE, EFFECT OF KNOWLEDGE OF THE RISK
Facts
The plaintiff, knowing that Hamilton was under the influence of drink and that this substantially increased the risk of an accident, chose to travel by the car although under no compulsion of necessity or otherwise. An accident occurred on the road, which was caused by the driver’s drunkenness, and the plaintiff was injured. Hamilton was killed. She sued Hamilton’s widow, as his personal representative, for damages. The defendant raised the defence of volenti non fit injuria.
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Issues
Can the defence of volenti non fit injuria be used in order to preclude from remedy a person who has voluntarily accepted the risk which arises from a driver who is driving a car under the influence of alcohol?
Decision / Outcome
The decision was in favour of the plaintiff.
(1) Knowledge of a risk did not necessarily amount to consent to it. Asquith J discussed Smith v Baker & Sons [1891] AC 325, while distinguishing its employment context. The plaintiff’s decision to travel with Hamilton, knowing that drink had impaired his driving, did not establish an implied agreement to absolve him from liability for subsequent negligent driving.
(2) The judge left open whether the defence might apply where the driver’s intoxication was so extreme and glaring that accepting a lift was like meddling with an unexploded bomb. The present case fell short of that situation.
(3) Contributory negligence was not pleaded. The decision therefore concerned the complete defence of volenti non fit injuria, rather than whether the plaintiff had herself failed to take reasonable care. Judgment was entered for the plaintiff for £235 19s 4d.
