Morris v Murray [1990] EWCA Civ 10

The plaintiff went on a flight with a pilot who had consumed the equivalent of 17 whiskies after spending the afternoon drinking together. The aircraft crashed, killing the pilot and severely injuring the plaintiff. The Court of Appeal held that the defence of volenti non fit injuria applied, as the plaintiff had knowingly and willingly embarked on an obviously dangerous activity.

Facts

On 3rd March 1981, the plaintiff Mr Morris spent the afternoon drinking heavily with Mr Murray at public houses. Mr Murray consumed the equivalent of at least 17 whiskies, more than three times the legal limit for driving. Despite this, the plaintiff drove Mr Murray to an airfield where Murray kept a light aircraft. The plaintiff assisted in starting the aircraft and refuelling it. Flying conditions were poor with a 20-knot wind, low cloud, and drizzle. The Chief Instructor had cancelled all club flying.

Mr Murray took off down wind, a highly dangerous manoeuvre. The aircraft exhibited erratic behaviour in flight, appearing to be out of control, before stalling and crashing. Mr Murray was killed and the plaintiff was severely injured.

Issues

Whether the defence of volenti non fit injuria applied

The defendants argued that the plaintiff had voluntarily assumed the risk of injury by embarking on a flight with a pilot he knew to be heavily intoxicated.

Whether the plaintiff’s own intoxication prevented him from appreciating the risk

The plaintiff had also been drinking heavily, raising the question of whether he was capable of understanding and accepting the risks involved.

Judgment

The Court of Appeal unanimously allowed the appeal, holding that the defence of volenti non fit injuria succeeded. Fox LJ identified that Asquith J in Dann v Hamilton had left open the question of extreme cases where drunkenness was so glaring that accepting a lift was like engaging in an intrinsically dangerous occupation.

Fox LJ concluded that the plaintiff knew what he was doing, was capable of appreciating the risks, and had knowingly and willingly embarked on a flight with a drunken pilot. The court found that the plaintiff’s actions demonstrated understanding: he drove to the airfield, helped start and refuel the aircraft, and asked sensible questions about radioing control.

Stocker LJ emphasised the fundamental difference between driving a motor car and piloting an aircraft, stating that flying requires greater accuracy of control and that flying with a pilot who has consumed a large quantity of alcohol is extremely dangerous. He found the plaintiff had not only known the risks but had agreed to take them through his active participation.

The court distinguished this case from Dann v Hamilton, noting that in the earlier case the journey was an ordinary social outing where the driver only became significantly intoxicated at a late stage. In contrast, this was a drunken escapade heavily fraught with danger from the first.

Implications

This case establishes that volenti non fit injuria can apply to the tort of negligence in extreme circumstances, particularly where the danger is obvious and great. The decision confirms that there is a spectrum of cases: where intoxication is moderate, contributory negligence may be the appropriate response; where intoxication is extreme and glaring, volenti may provide a complete defence.

The case highlights that different activities carry different levels of inherent risk, with flying requiring higher standards of care than driving. The court’s observations about the need for compulsory insurance for aircraft passengers prompted calls for legislative or administrative action.

The judgment also confirms that the test for whether a plaintiff was volens is largely objective, based on conduct and circumstances rather than subjective inner thoughts. A plaintiff cannot escape the consequences of voluntary assumption of risk simply because intoxication lowered their inhibitions.

Verdict: Appeal allowed. The plaintiff's claim was dismissed on the ground that the defence of volenti non fit injuria succeeded. The plaintiff had knowingly and willingly embarked on an obviously dangerous activity and had implicitly waived his rights to claim for injury consequent on Mr Murray's failure to fly with reasonable care.

Source: Morris v Murray [1990] EWCA Civ 10