Winnik v Dick: 1984

The respondent, was a passenger in a motor car who was injured in an accident. He raised an action of damages against the driver, the appellant, who had been convicted of an offence under the Road Traffic Act 1972. The men had been drinking together in public houses for most of the day and when the respondent entered the appellant’s car to return home, he knew that the appellant was drunk. The appellant contended that he was not liable in damages to the respondent inter alia because the respondent had voluntarily accepted the risk of an accident.
Held: After reviewing the Scotish cases: including McCaig v Langan and Fowler v Tierney: ‘From these expressions of view as to what is involved in the maxim so far as the law of Scotland is concerned, I can find no support for, but rather refutation of, the contention that its effect here is to establish that on this journey there never was any duty on the defender as the driver of the car to take reasonable care quoad the pursuer […]. In my opinion the effect of the maxim was not to relieve the defender from any duty to take care quoad his passengers. On the contrary the maxim proceeds on the basis that there is duty to take care and not be negligent, but the successful establishment of the maxim means that the pursuer has accepted the risk of the defender’s negligence in the exercise of his legal duties and has absolved the defender from the consequences arising from that negligence.’


Lord Justice-Clerk, Lord Wheatley


1984 SLT 185



Cited by:

CitedMcTear 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 . .
Lists of cited by and citing cases may be incomplete.

Road Traffic, Negligence

Updated: 05 July 2022; Ref: scu.226757