Morris v Murray

Facts

Murray and Morris spent an afternoon drinking heavily together. Murray, who held a pilot's licence, then proposed a flight in his light aircraft, and Morris agreed to go. The aircraft crashed soon after take-off, Murray was killed, and Morris was seriously injured. Morris sued Murray's estate in negligence. It was accepted that Murray had been grossly intoxicated and that this was a cause of the accident.

Issue

Whether a passenger who flies with a pilot he knows to be seriously affected by drink is barred by volenti non fit injuria; whether his own intoxication prevented him from appreciating the risk; and whether the defence was displaced by the Law Reform (Contributory Negligence) Act 1945.

Held

Appeal dismissed. Morris had accepted the risk of injury from the pilot's drunkenness, so volenti applied and the claim failed in full.

Ratio

• Volenti non fit injuria requires that the claimant knew of the risk and its extent and agreed, expressly or by conduct, to accept it; a passenger who agrees to fly with a pilot whose drunkenness is such that the danger is obvious, and who is not too intoxicated to appreciate it, accepts the risk of injury.
• Volenti is a complete defence and is not replaced by apportionment under the Law Reform (Contributory Negligence) Act 1945.

The judgments

Key reasoning

• Flying requires a high degree of skill and co-ordination, so that even a modest impairment makes a serious accident much more probable; the risk of flying with a very drunk pilot was therefore plain and the claimant must have understood it.
• The decision in Dann v Hamilton [1939] 1 KB 509, where a passenger in a car with a drunk driver was not barred, was distinguished because the risk in that case was not of the same obvious gravity, and the claimant's own intoxication did not show that he failed to appreciate the risk.
• The statutory rule which prevents volenti being raised against passengers in motor vehicles did not apply to an aircraft, so the common law defence remained available.

Where it fits in the module

On the FHS Tort list under exclusion and volenti non fit injuria. Morris v Murray shows the conditions for the defence: knowledge of the nature and extent of the risk, and genuine agreement to accept it. It is the standard example of the defence succeeding, in contrast to Nettleship v Weston [1971] 2 QB 691 and Dann v Hamilton, and it can be read with Reeves v Commissioner of Police of the Metropolis [2000] 1 AC 360 on the courts' reluctance to apply the defence, and with Pitts v Hunt [1991] 1 QB 24 on illegality. It raises the debate whether all-or-nothing defences are justified when apportionment is available.

Criticisms

• Volenti is a complete defence, whereas contributory negligence permits apportionment, and a drunk passenger who is partly responsible for his own injury could be dealt with by reducing damages instead of denying them entirely.
• Finding that a claimant who was himself drunk appreciated the full nature and extent of the risk is hard to reconcile with the standard of knowledge that volenti requires, and may disguise a policy judgment that people who take part in such conduct should not recover.
• Distinguishing Dann v Hamilton on the basis that flying is more dangerous than driving turns a doctrine of consent into a question of degree, and invites inconsistent results.