The Drunk Driver's Passenger

Publication Date01 Mar 1965
AuthorW. A. Wilson
DOIhttp://doi.org/10.1111/j.1468-2230.1965.tb01065.x
RIARCH
1965
NOTES
OF
CASES
235
Even if a waiver is expressed as a promise there should be no
difficulty in reading into this promise a statement of fact.
A
creditor who is willing to accept part payment in
full
satisfaction
may express this by stating that the balance has been forgiven and
that he will not ask for payment,
or
he may merely make the first
or
second part of this statement, implying the other. The sense of
the statement remains the same, whichever form it takes. This is
illustrated by the facts of the case of
Tool Metal
Co.
v.
Tungsten
Electric
CO.*
There the evidence concerning the waiver of the
claim to compensation was summarised by Devlin
J.
so
that,
according to one witness, it had been said by a
Mr.
Wickman,
on
behalf of the creditors, that
‘‘
compensation was washed out,”
whereas according to another witness
Mr.
Wickman had said
You
will not be charged compensation.” Without attaching any signifi-
cance to the different tenses used by these witnesses Devlin
J.
declared himself satisfied by their evidence that
some agreement
of some sort was made.”
As
this case shows, the decision of a creditor to waive
or
suspend
a claim,
or
to forgive a debt may be reported either as something
which has already happened
or
as something which will happen in
future. This cannot obliterate the important distinction between
making a gift and promising
a
gift but it offers a method of dealing
with waivers which avoids the difficulties inherent in the concept
of promissory estoppel.
J.
UNOER.
THE DRUNK DRIVER’S
PASSENGER
Two recent Scottish cases have raised a question which has been
discussed, but not decided, in England. In
Bankhead
v.
McCarthy
the pursuer sued for damages in respect of injuries sustained while
he was a passenger in a car driven by the defender. The defender
stated a plea of contributory negligence based
on
the averments
that when the pursuer entered the car he knew that the defender
had been drinking alcoholic liquor to such an extent that his control
of the car was liable to be affected thereby and that by travelling
with the defender in these circumstances the pursuer materially
contributed to his own injuries. The case came before Lord Walker
on the pursuer’s plea to the relevancy
of
these averments
(i.e.,
the
pursuer was arguing that even if these averments were proved they
could not support a finding of contributory negligence).
In the course of the argument, reference was made to
Dann
v.
Hamilton
in which, on somewhat similar facts, Asquith
J.
(as he
then was) repelled a defence of
volenti
non
fit
injuria.
The decision
was subsequently criticised by Professor Goodhart
a
who argued
7
[1955]
2
All
E.R.
657.
1
1963
S.L.T.
144.
2
[1939]
I
K.B.
509.
3
(1939)
55
L.Q.R.
184;
see
also
(1949)
65
L.Q.R.
20.

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