• In the case of Morris v Murray [1991] 2 Q.B. 6, it was held that a passenger who knowingly and willingly embarks accepts a flight knowing that the pilot is drunk at the time of flight will be unable to claim damages on the defence of volenti non fit injuria that they came to the injury.

Facts of the Case

  • 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.
  • D’s estate pleaded volenti not fit injuria and, in the alternative, contributory negligence. At first instance the former was rejected, but the latter was held for 20% of damages.

Issues

  • 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?

Held by the Court of Appeal (Civil Division)

  • 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.

Lord Justice Fox

  • 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.
  • As such, C knowingly embarked on a flight with a drunk pilot for simple entertainment. C agreed that he was anxious to start the engine and fly. A clearer source of great danger could hardly be imagined.
  • “Volenti as a defence has, perhaps, been in retreat during this century-certainly in relation to master and servant cases. It might be said that the merits could be adequately dealt with by the application of the contributory negligence rules. The judge held that C was only 20 per cent to blame (which seems to me to be too low) but if that were increased to 50 per cent, so that C’s damages were reduced by half, both sides would be substantially penalised for their conduct. It seems to me, however, that the wild irresponsibility of the venture is such that the law should not intervene to award damages and should leave the loss where it falls. Flying is intrinsically dangerous and flying with a drunken pilot is great folly. The situation is very different from what has arisen in motoring cases” [17F].

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