Dann v Hamilton
Citations: [1937 D No 1828];  1 KB 509.
The claimant got into the back of a car driven by the defendant, who she knew to be drunk. She was not under any compulsion, nor was there any necessity for her to get in. The claimant had driven around with the defendant earlier in the evening, and was aware that he had been driving negligently.
The defendant got into an accident due to his drunken state. The defendant was killed and the claimant was injured. The claimant sued the defendant’s estate in negligence. The defendant’s estate admitted negligence, but raised the defence of volenti non fit injuria.
- Did the defence of volenti non fit injuria bar the claimant from succeeding in negligence?
The Court held in favour of the claimant. This was not the kind of extreme case where getting into an obviously dangerous situation would trigger the defence.
This Case is Authority For…
Asquith J explained that to establish volenti non fit injuria, the defendant must first show that the claimant had complete knowledge of the danger. They must then show that the claimant also consented to it. However, he stated that complete knowledge does not by itself imply consent to waive liability for the risk.
Asquith J went onto say that voluntarily getting into a car with a drunk driver does not indicate that the claimant has waived liability for any injury sustained as a result. The justification was that it is much harder to rely on acts done at a time when there is merely a risk of negligence as authorising possible negligence. Clearer evidence of consent is needed.
Asquith J did speculate that it might be possible in extreme cases for volenti to apply to drunk driving scenarios. In particular, he thought serious issues would arise if the drunkenness of the driver was so extreme and obvious that:
‘to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation, intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff’.
This was not the case on the present facts, however.