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 the defendant was drunk and that a road traffic accident was highly likely as a result, chose to travel by the car despite being under no compulsion to do that driven either by necessity or something else. An accident occurred on the road, which was caused by the driver’s drunkness and the plaintiff was injured. She sued the driver’s personal representative – the defendant, for damages. In the action against him, the personal representative raised the defence of volenti non fit injuria.
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) Applying Smith v Baker & Sons [1891] AC 325, except in extreme cases, the defence of volenti non fit injuria does not apply to the tort of negligence so as to preclude from remedy a person who has knowingly or voluntarily accepted the risk which arises from a driver who is driving a car under the influence of alcohol.
(2) The present case is not one of the extreme cases.
(3) The doctrine of volenti non fit injuria applies to negligence only in cases where the plaintiff by his words or conduct has impliedly agreed to absolve the defendant from liability.
Updated 19 March 2026
This case summary accurately describes the facts, issues, and outcome of Dann v Hamilton [1939] 1 KB 509, and the legal principles stated remain broadly correct as a matter of common law.
However, readers should be aware of two important developments affecting the practical significance of this case in the modern law of negligence.
First, the defence of volenti non fit injuria in the context of road traffic accidents involving passengers is now substantially curtailed by statute. Section 149 of the Road Traffic Act 1988 renders void any agreement or notice purporting to restrict or exclude liability to a passenger in a motor vehicle where compulsory third-party insurance is required. This effectively prevents a driver from relying on volenti as a complete defence in most road traffic accident claims involving passengers, making the precise question in Dann v Hamilton of reduced practical importance in this specific context.
Second, the broader principle identified in the case — that mere knowledge and acceptance of risk does not of itself amount to consent sufficient to raise volenti — has been affirmed and developed in subsequent case law, including ICI Ltd v Shatwell [1965] AC 656 and Pitts v Hunt [1991] 1 QB 24. Pitts v Hunt is particularly relevant as it involved a passenger injured in a road accident caused partly by the driver’s intoxication, where the Court of Appeal held that volenti was unavailable by virtue of what is now s.149 RTA 1988, but also considered the ex turpi causa defence. Students should read Dann v Hamilton alongside these later authorities for a complete picture of the current law.
