The plaintiff agreed to be flown by the defendant in his light aircraft though he knew the defendant was inebriated. The plaintiff drove the car which took them to the airfield and he helped to start and refuel the aircraft, which was piloted by the friend. Shortly after take-off the aircraft crashed, killing the pilot and severely injuring the plaintiff. At first instance the court found the defendant failed in his claim of non fit injuria, but the plaintiff succeeded in negligence.
Held: The defendant’s appeal was allowed. The defence of volenti non fit injuria applied, and the claim failed. The plaintiff willingly embarked upon the flight, knowing that the pilot was drunk; that the danger in embarking upon the flight was both obvious and great and the plaintiff was not so drunk as to be incapable of appreciating the nature and extent of the risk involved, and, therefore, he was to be taken to have fully accepted the risk of serious injury and implicitly discharged the pilot from liability for negligence in relation to the flying of the aircraft; and that, accordingly, the maxim volenti non fit iniuria applied as a defence to the plaintiff’s claim.
Fox LJ said: ‘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 . . None of [the facts] suggests that his facilities were so muddled that he was incapable of appreciating obvious risks . . I think he knew what he was doing and was capable of appreciating the risks. . . 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.’
Judges:
Fox, Stocker LJJ, Sir George Walker
Citations:
[1990] 3 All ER 801, Times 18-Sep-1990, [1991] 2 QB 6, [1990] EWCA Civ 10
Links:
Jurisdiction:
England and Wales
Citing:
Distinguished – Dann v Hamilton 1939
The maxim volenti non fit injuria, which originates from Roman law, is a notorious source of confusion. The court doubted whether the maxim ever could apply to license in advance a subsequent act of negligence, for if the consent precedes the act of . .
Cited by:
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – Reeves (Joint Administratrix of the Estate of Martin Lynch, Deceased) v Commissioner of Police for Metropolis CA 10-Nov-1997
The fact that the deceased committed suicide whilst in custody does not necessarily absolve the police of blame if the deceased was a known suicide risk. . .
Lists of cited by and citing cases may be incomplete.
Negligence, Personal Injury
Updated: 08 June 2022; Ref: scu.190035
