Morris v Murray [1991] 2 Q.B. 6

On 3rd March 1981, C (aged 25) was drinking when he received a phone call from D. The two met up in a public house for more drinks. C and D agreed to go on a flight as D had a pilot’s licence. The two drove to the flight club where D’s aircraft was kept. C had flown with D on two previous occasions and considered him a good pilot. After fuelling the craft, D took off downwind in poor flying conditions. With poor visibility, a wind of 20 knots and low clouds, D quickly lost control. The craft went into descent from 300 feet. D was killed in the crash and C was severely injured. C’s memory became episodic after this accident. D’s autopsy showed he had consumed the equivalent of 17 whiskies, more than 3 times the limit for car drivers.

• Had C, by agreeing to go on the flight with D while knowing D had been drinking, waived his right to damages for injuries caused by the accident?

Finding for D, that C must have realised how drunk D was, having been drinking with him for several hours. C had assisted with preparing the aircraft, showing that he was not unwilling or pressured into the flight by D. As such, the defence of volenti non fit injuria was held in full. C could not claim damages. In general, the volenti doctrine can apply to negligence, though it must depend upon the extent of the risk, C’s knowledge of it and what can be inferred as to his acceptance of it. The passenger cannot be said to have waived his claim in respect of negligent acts which he had no reason to anticipate. C had been drinking, but he was capable of driving, helping to prepare the aircraft and make sensible inquiries before take-off. C must have known he was going on a flight with D and D had been drinking heavily. That does not counter C’s evidence that he would not have gone on the flight if sober. However, such evidence does not establish that he was incapable of understanding what he was doing.

Voluntary acceptance of an exceptionally obvious risk may provide a complete defence to negligence. In Morris, the passenger knowingly participated in a flight with a severely intoxicated pilot and accepted the relevant danger; merely knowing of some risk would not by itself establish that defence.

Morris is an exceptional example of volenti succeeding in a negligence claim. The passenger's active participation and understanding of the pilot's condition supported more than a finding of carelessness. Distinguish the complete defence from contributory negligence, which reduces damages, and avoid transferring the result mechanically to road passengers, where statutory restrictions are relevant. The case turns on acceptance of the particular danger and the passenger's capacity to appreciate it despite his own drinking.