Thursday, 30 June 2022

Dann v. Hamilton 1939

 Dann v. Hamilton 1939


The plaintiff was a passenger in a car which was driven by the drunken driver. The claimant was under no necessity nor coercion to travel by car driven by that person. However, she willingly chooses to do so. The car was involved in an accident, which was caused by the driver’s drunkenness. As a result of the accident, the driver died and the claimant claimed damages for negligence from the driver’s personal representative.


Can the defence of volenti non fit injuria be used in order to preclude from remedy a person who has voluntarily accepted the risk which arises from a driver who is driving a car under the influence of alcohol?

Plaintiff’s Arguments:

The Plaintiff chose to travel in a car. The Driver of the car was intoxicated. Due to the Negligence of the driver, the car met with an accident caused death of the driver and injuries to the Plaintiff.

Defendant’s Arguments:

Defendant took defence of ‘volenti non fit injuria’ which means if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort or delict.

Defendant in his arguments said that the lady Plaintiff was knowing the fact that the driver was drunk that a road traffic accident was highly likely as a result, chose to travel by the car despite being under no compulsion to do that driven either by necessity or something else. An accident occurred on the road, which was caused by the driver’s drunkness and the plaintiff was injured. 


The court found for the defendant, the deceased’s representative. The court held that since the claimant was aware of the drunken state of the driver, by getting into the car, she willingly accepted the increased risks of the accident. However, as held by Asquith J: ‘there may be cases in which the drunkenness of the driver at the material time is so extreme and so glaring that to accept a lift from him is like engaging in an intrinsically and obviously dangerous occupation, intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff.’ In Dann v Hamilton, the driver’s state of drunkenness was hardly that extreme. Therefore, defence of volenti non fit injuria did not apply and the claimant was entitled to recover damages. 

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