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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.

Issue

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?

Held

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.


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