Morris v Murray and Another

JurisdictionEngland & Wales
JudgeLORD JUSTICE FOX,LORD JUSTICE STOCKER,SIR GEORGE WALLER
Judgment Date03 August 1990
Judgment citation (vLex)[1990] EWCA Civ J0803-2
Docket Number90/0771
CourtCourt of Appeal (Civil Division)
Date03 August 1990

[1990] EWCA Civ J0803-2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE CHELMSFORD CROWN COURT

HIS HONOUR JUDGE RICE

Royal Courts of Justice

Before:-

Lord Justice Fox

Lord Justice Stocker

and

Sir George Waller

90/0771

Gary Morris
Respondent (Plaintiff)
and
Henry Murray (Administrator of Harry Henry Murray Dec.)

and

Janice Ellen Morey (Administratrix of Harry Henry Murray Dec.)
Appellants (Defendants)

MR. IVAN KROLICK (instructed by Messrs B. Laddie) appeared on behalf of the Appellants (Defendants).

MR. W. AYLEN Q.C. and MR. S. LEONARD (instructed by Messrs Lee Davies & Co., Harlow) appeared on behalf of the Respondent (Plaintiff).

LORD JUSTICE FOX
1

This is an appeal by the defendants from an order of Judge Rice (sitting as a Deputy Judge of the Queen's Bench Division) whereby he awarded the plaintiff a sum of £130,000 damages for personal injuries sustained in the crash of a light aircraft owned and piloted by the late Mr. H.H. Murray ("Mr. Murray").

2

On 3rd March 1981 the plaintiff, Mr. Morris, was drinking with a Mr. Moran at a public house in Harlow called the Red Lion. The plaintiff was then about 25 years old. How much they drank there is uncertain. The plaintiff says that they were short of money. He thinks they had two half pints. Mr. Moran thinks it was two pints. The barman, Mr. Aldington, who was a friend of theirs, thinks it was three or four pints.

3

At about midday, the barman received a telephone call from Mr. Murray, who was a regular customer at the Red Lion and a friend of the plaintiff and Mr. Moran. Mr. Murray was in a public house called the Blue Boar about 25 minutes drive from the Red Lion. He asked if somebody could collect him from the Blue Boar and take him to the Red Lion. The plaintiff and Mr. Moran accordingly drove to the Blue Boar. They drove in Mr. Moran's car but since Moran had been disqualified from driving the plaintiff drove.

4

When they arrived at the Blue Boar, they were given further drinks by Mr. Murray. Subsequently, as neither the plaintiff nor Mr. Moran had any money, Murray lent each of them £10 so that they should not feel embarrassed by not being able to buy rounds of drinks.

5

The party was at some point enlarged by the landlord and his wife. Drinking continued until about four o'clock in the afternoon. They drank spirits. Asked in evidence in chief "Do you remember what you were doing at the Blue Boar?", the plaintiff replied "Drinking heavily". By the end of the afternoon the plaintiff and Moran had each spent their £10 or most of it.

6

There seems to have been a suggestion by Mr. Murray that the landlord and his wife should go on a flight with him. He had a pilot's licence and kept a light aircraft at a flying club at Stapleford. The offer was declined. In the end the plaintiff and Mr. Murray agreed to go on a flight together and the plaintiff drove Mr. Murray and Mr. Moran to Stapleford.

7

The plaintiff remembered the car drawing up alongside the aircraft. He agreed in cross-examination that he was anxious to start the engine and go on the flight. He tried to start the engine by turning the propeller but was unable to do so. Either Moran or the plaintiff and Moran together did start the engine. The plane needed fuel and it was filled up at a pump by the plaintiff—Mr. Murray paying for it by cheque.

8

Flying conditions were poor. Mr. R.G. Matthew, who conducted an inquiry into the crash on behalf of the Chief Inspector of Accidents says (in a written statement which, with others, was read at the trial) that there was a wind of some 20 knots with poor visibility, low cloud and occasional drizzle. The Chief Instructor at the Stapleford Flying Club had cancelled all club flying. Mr. Murray, as I understand it, was not aware of this, but, in any event, it did not prevent him flying his own aircraft if he chose to. The plaintiff asked Mr. Murray whilst they were in the aircraft whether he (Murray) needed to "radio in" to flying control before taking off but Mr. Murray said he did not. That was apparently correct (statement of Mr. P.I. Brand, a flying instructor).

9

The flight was short and chaotic. Mr. Murray took off down wind. The runway was wet and was uphill. These factors would make take off more difficult. In Mr. Brand's view, Mr. Murray should have taken off on a different runway and into the wind.

10

Mr. Reith, a consulting engineer who holds a pilot's licence, was driving on a nearby road when he saw the plane. He said in his statement that when he saw the plane his initial reaction was that he was looking at a model plane. He could not initially reconcile the flying attitude of the plane, that is to say its almost vertical climb and its close proximity to the ground, with anything other than a model aircraft. The plane was evidently recovering from a descent which brought it close to the ground. It climbed to about 300 feet, then stalled and dived into the ground. Mr. Reith's opinion from his observation was that the pilot was not in control of the aircraft.

11

Mr. Murray was killed and the plaintiff was severely injured. The plaintiff in the statement which he made to the police after the accident said that he had flown with Mr. Murray on two previous occasions and thought him a good pilot. He said in evidence at the trial that, although he remembered making a statement and signing it he did not remember saying that he had flown with Mr. Murray twice before. The judge found that since the accident, his memory was episodic.

12

The autopsy on Mr. Murray showed that from the concentration of ethanol in his body and from his blood alcohol content he had consumed the equivalent of 17 whiskies. The concentration of alcohol was more than three times the limit prescribed for a car driver.

13

Mr. Murray had for some five years prior to his death lived with a lady, now Mrs. Gibbins, who gave birth to his child on 30th March 1981, about three weeks after the accident.

14

Letters of administration to the estate of Mr. Murray were granted to Mrs Gibbins and to Mr. Murray's father on 16th October 1981. The net value of the estate was sworn at about £43,000 for the purposes of the grant.

15

The child, Ricky, is the person entitled to the estate upon the intestacy.

16

The writ in this action was issued on 9th February 1984 and served in July 1984. The defendants pleaded violenti not fit injuria and, in the alternative, contributory negligence. The judge rejected the plea of volenti but held that there was contributory negligence to the extent of 20 per cent only.

17

As to volenti the judge, after referring to Dann v.Hamilton [1939] 1 K.B. 509, and to the judgments of Lord Denning M.R. and Salmon L.J. in Nettleship v. Weston 1971 2 Q.B. 692 then continued as follows:

"In this case it is right to say that the plaintiff was aware that Mr. Murray had been drinking heavily, but Mr. Murray was able, as it were, to start this aeroplane. He even taxied the aeroplane to the place where petrol was sold, paid for the petrol and then was able, albeit in a somewhat inexpert way because his faculties were clearly affected by drink, but he was able to get the plane into the air, albeit it only flew for some three or four minutes before crashing in the way I have described. But, in my view, this is not a case where one can say that the plaintiff consented to run the risk of the actual injuries that he subsequently suffered.

This case falls far short of what would be necessary in order to successfully defend the action on the grounds of volenti non fit injuria. This is a case where, in my view, certainly there was contributory negligence by the plaintiff in that he boarded a plane and allowed himself to be flown when he knew that the defendant had consumed a considerable amount of alcohol. In many ways it is analogous to the facts that prevailed in Owens v. Brimmell [1977] 1 Q.B. 859, because in that case the plaintiff had been in the defendant's company for most of the evening visiting one public house after another. The defendant had there consumed eight to nine pints of bitter. In that case the learned judge, having considered the question of negligence of the plaintiff in that he agreed to be carried in a car driven by a person whose judgment he must have known would be affected by alcohol, assessed the plaintiff's contributory negligence at twenty per cent. That is what I propose to do here".

18

I should now refer to certain authorities. In Dann v. Hamilton [1939] 1 K.B. 509, the defendant Mr. Hamilton drove the plaintiff and her mother from the area of Staines into London to see the Coronation decorations. They all had tea in London at about six p.m. Between 9.30 p.m. and 10 p.m. they had some beer at a public house in London. How much Hamilton drank was not known. They then drove quite safely to another public house called the Milford Arms near Hounslow. It was about 10.30 p.m. and the premises were just closing, but they met a Mr. Taunton there whom they all knew. Taunton and Hamilton had a drink at the Milford Arms. Hamilton's condition at that time was described thus by Taunton:"He wasn't drunk but I could see that he had had one or two drinks". It was then suggested that they should go to the Osterley Park Club which they did. Hamilton drove. Taunton thought he drove rather fast and swerved slightly but he did not appear to be driving dangerously. At the club Hamilton ordered a round of drinks including a pint of beer for himself, which he drank quickly and then ordered another round.

19

They returned to the car. Taunton was asked by the women to drive but Hamilton would not let him. He agreed to drive Taunton to his house about a mile away. Taunton said he drove at...

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