Morris v Murray [1990] EWCA Civ 10

The plaintiff was injured in a plane crash after a day of heavy drinking with the pilot. He willingly embarked on the flight, knowing the pilot was drunk. The court held the plaintiff had voluntarily accepted the obvious and great risk.

Facts

The plaintiff, Mr Morris, and his friend, Mr Murray, spent an afternoon drinking heavily, consuming the equivalent of 17 whiskies each. Mr Murray, who held a pilot’s licence, then suggested they go for a flight in his light aircraft. The plaintiff drove them both to the airfield and assisted Mr Murray in preparing the aircraft for take-off. The weather was poor. Shortly after take-off, the aircraft crashed, killing Mr Murray and severely injuring the plaintiff. A post-mortem examination revealed that Mr Murray’s blood alcohol level was significantly over the legal limit for driving. The plaintiff brought an action in negligence against the deceased’s personal representative.

Issues

The central legal issue before the Court of Appeal was whether the defence of volenti non fit injuria (to a willing person, no injury is done) could be successfully invoked by the defendant. Specifically, the court had to determine:

Application of Volenti non fit injuria

Could the plaintiff be said to have voluntarily assumed the risk of injury by embarking on a flight with a pilot he knew to be severely intoxicated?

Capacity to Consent

Was the plaintiff so drunk that he was incapable of appreciating the nature and extent of the risk involved, thereby nullifying any valid consent?

Judgment

The Court of Appeal, by a majority (Fox and Stocker LJJ, with Sir George Waller dissenting), allowed the appeal, overturning the trial judge’s decision. The majority held that the defence of volenti non fit injuria applied and the plaintiff’s claim failed.

The Majority Opinion

Lord Justice Fox, delivering the leading judgment, concluded that the danger involved in the flight was both obvious and extreme. He distinguished this case from earlier authorities such as Dann v Hamilton, where the defence had failed in the context of a passenger accepting a lift from a drunk driver. Lord Justice Fox reasoned that the level of risk in this case was so great and so self-evident that the plaintiff’s agreement to embark on the flight constituted acceptance of that risk. He stated:

In my opinion, on the evidence, the plaintiff knew that he was going on a flight with a drunken pilot… The danger was both obvious and great… There was a wild, irresponsible and foolhardy expedition upon which the plaintiff embarked for his own pleasure and I can see no reason in justice why he should be compensated by the first defendant.

Lord Justice Stocker agreed, focusing on the plaintiff’s capacity. He argued that despite his intoxication, the plaintiff’s actions in driving to the airfield and assisting with the plane demonstrated that he was not so incapacitated as to be unable to appreciate the risk.

In my view, his evidence, and the objective evidence, clearly indicates that he was not so drunk as to be totally incapacitated… Accordingly, in my view, the plaintiff must have been aware of the risks he was running even though his judgment may have been clouded by the effects of alcohol.

The Dissenting Opinion

Sir George Waller, in his dissent, would have dismissed the appeal. He believed that the plaintiff’s own severe intoxication meant that he could not fully comprehend the specific risks he was taking. In his view, this lack of full appreciation prevented the application of the volenti defence.

In my opinion, in this case the plaintiff was not capable of measuring the extent of the risk which he was taking, and therefore the maxim volenti non fit injuria does not apply.

Implications

The decision in Morris v Murray is a significant authority on the defence of volenti non fit injuria in the law of tort. It establishes that where a person knowingly and willingly embarks on an activity that is ‘glaringly’ or ‘obviously’ dangerous due to the intoxication of another participant, the defence may succeed. The case clarifies that there is a point at which the degree of intoxication and the inherent danger of the activity are so extreme that the court will infer a voluntary assumption of risk, distinguishing it from cases where accepting a lift from a moderately drunk driver might only amount to contributory negligence. It underscores that for the volenti defence to apply, the risk must be so manifest that the plaintiff’s participation can be seen as a full acceptance of the potential consequences.

Verdict: The appeal was allowed. The judgment for the plaintiff was set aside and his claim was dismissed.

Source: Morris v Murray [1990] EWCA Civ 10