Morris v Murray

The defence of volenti non fit injuria may defeat a claim in negligence where the claimant fully knows the nature and extent of an obvious risk and freely agrees to absolve the defendant from the consequences of failing to exercise reasonable care. Knowledge alone is insufficient; acceptance may nevertheless be inferred from words and conduct.

A person who knowingly and willingly participates in a recreational flight piloted by someone manifestly incapable through intoxication may be taken to accept the risk of negligent flying. The court must consider the degree and obviousness of the intoxication, the danger inherent in the proposed activity, the claimant’s capacity to appreciate the risk, any compulsion, and the extent of the claimant’s participation.

The plaintiff was severely injured during a recreational flight in a light aircraft owned and piloted by Mr Murray, who was killed in the crash. Both men had been drinking heavily. The plaintiff had accompanied the pilot throughout the drinking, drove him to the airfield, helped to start and refuel the aircraft, and was anxious to fly.

Judge Rice awarded the plaintiff £130,000 in damages. He rejected the administrators’ defence of volenti non fit injuria, but found the plaintiff contributorily negligent to the extent of 20 per cent. The administrators appealed.

The central issue was whether the plaintiff knew and freely accepted the risk that the heavily intoxicated pilot would fail to fly with reasonable care, so that the complete defence of volenti non fit injuria applied.

1. Appeal allowed unanimously. The plaintiff’s claim was barred by volenti non fit injuria. The judgment below was set aside.
2. Fox L.J. held that the defence may apply to negligence. It depends upon the extent of the risk, the claimant’s knowledge, and what may properly be inferred about acceptance. The claimant must consent to the lack of reasonable care that may produce the risk. In the absence of an express disclaimer, the defence does not extend to negligent acts which the claimant had no reason to anticipate. The agreement must also be free from compulsion.
3. The danger was both obvious and extreme. The plaintiff knowingly and willingly embarked upon a recreational flight with a pilot who had been drinking heavily throughout the afternoon. He actively assisted the venture, which had no useful purpose and involved no necessity or pressure. His conduct implicitly waived any claim arising from the pilot’s failure to fly with reasonable care.
4. Stocker L.J. agreed. Whether a claimant’s responsibility should be addressed through volenti or contributory negligence depends upon the facts. Relevant matters include the degree of the defendant’s intoxication, how obvious that condition was to the claimant, the skill and danger involved in the proposed activity, and the extent of the potential risk. Piloting an aircraft demands greater skill and carries materially greater danger than ordinary motoring.
5. The plaintiff’s own drinking did not prevent acceptance of the risk. There was no evidence that he was incapable of appreciating its nature and extent. His driving to the airfield, helping to start and fuel the aircraft, and asking about radio contact demonstrated comprehension and purposeful participation. Sir George Waller agreed that the plaintiff’s active involvement and knowledge permitted only the inference that he accepted the risk.
6. Stocker L.J. added that, had contributory negligence governed, the plaintiff’s responsibility could not have been assessed below 50 per cent. Questions concerning devastavit or the administration of the pilot’s estate did not arise in this personal-injury action.

1. Court of Appeal: Allowed the administrators’ appeal unanimously, set aside the judgment below and held that the plaintiff’s claim was barred by volenti non fit injuria. Leave to appeal to the House of Lords was refused.
2. Judge Rice, sitting as a Deputy Judge of the Queen’s Bench Division: Awarded £130,000 for personal injuries. He rejected volenti non fit injuria and assessed contributory negligence at 20 per cent.