Winnik v Dick
| Jurisdiction | Scotland |
| Judgment Date | 22 November 1983 |
| Docket Number | No. 5. |
| Date | 22 November 1983 |
| Court | Court of Session (Inner House - Second Division) |
SECOND DIVISION.
NegligenceRoad accidentPassenger aware that driver under influence of alcoholWhether volenti non fit injuria appliedWhether passenger disentitled to recover damages by reason of public policyRoad Traffic Act 1972 (cap. 20), sec. 148 (3)1.
A front passenger in a motor car which was involved in an accident sustained certain injuries. He raised an action against the driver seeking damages. The Sheriff awarded him damages, modified only by reason of contributory negligence. The Sheriff further found that the defender's plea of volenti non fit injuria had been established at common law, but that by virtue of the provisions of sec. 148 (3) of the Road Traffic Act 1972, that finding did not negative the liability of the defender. The defender appealed to the Sheriff Principal who adhered in effect to the Sheriff's interlocutor. The defender also contended before the Sheriff Principal that public policy should preclude the recovery of damages where the parties were engaged in a common criminal enterprise. The Sheriff Principal also rejected this argument. The defender appealed.
Held (1) that the defence of volenti non fit injuriahad been established at common law but the effect of the defence was not to relieve the defender from any duty to take care quoad his passengers but was that the pursuer accepted the risk of the defender's negligence and absolved the defender from the consequences of his negligence.
(2) That there was accordingly a duty to take reasonable care to which the provisions of sec. 148 (3) could relate and on a proper construction of the section did apply to a volenti case in that "liability" meant liability of the user of the vehicle to persons carried therein in respect of whom there was an insurance policy under sec. 145 of the Act.
(3) That the plea that entitlement to damages should be excluded on the ground of public policy because the parties were engaged in a common criminal enterprise was not supported by the evidence and it was
accordingly inappropriate to give an opinion on the law on the subject; and appeal refusedDann v. HamiltonELR [1939] 1 K.B. 509, Bankhead v. M'CarthySC1963 S.C. 263, M'Caig v. LanganUNK1964 S.L.T. 121, Wallace v. Culter Paper Mills Co. Ltd.UNK (1892) 19 R. 915, Smith v. Baxter & SonsELR [1891] A.C. 325, Stewart's Executrix v. Clyde Navigation TrusteesSC1946 S.C. 317, Kelly v. Farrans Ltd.DNI[1954] N.I. 41, Fowler v. Tierney 1974 S.L.T. (Notes) 23, Smith v. JenkinsUNK (1970) A.L.J.R. 78, Ashton v. TurnerELR [1981] Q.B. 137, Lindsay v. PooleUNK 1984 S.L.T. 269, Gregory v. KellyUNK[1978] R.T.R. 426 referred to.
Eric Anderson Winnik was a passenger on the 30th June 1978 in a motor car driven by Kenneth Dick. The vehicle was involved in an accident which resulted in the pursuer sustaining certain injuries. Winnik raised an action against Dick seeking damages for his loss, injury and damage. After a proof before answer the Sheriff awarded the pursuer damages, modified by reason of contributory negligence, and on appeal the Sheriff Principal adhered to the Sheriff's judgment. The appellant appealed against the Sheriff Principal's decision. There was no challenge to the findings in fact, the quantum of damages, or the apportionment of contributory negligence, if such were justified. The appeal was heard before the Second Division on 13th October 1983. The facts and the arguments of the parties appear fully from the opinion of the Lord Justice-Clerk.
At advising on 22nd November 1983,
LORD JUSTICE-CLERK (Wheatley).On 30th June 1978 the pursuer was a passenger in a motor car driven by the defender which was involved in an accident resulting in certain injuries to the pursuer. The pursuer raised this action against the defender seeking damages for the loss, injury and damage he thereby sustained, and the Sheriff in due course awarded him damages, modified by reason of contributory negligence. The defender appealed the case to the Sheriff Principal who, subject to a minor matter of no relevance to this appeal, adhered to the Sheriff's judgment, and this appeal has been taken against the Sheriff Principal's decision.
The pleadings in the case contain averments normally found in a reparation action arising out of a motor accident, but they have two additional features. In the first place the defender has a plea-in-law, supported by averments, of volenti non fit injuria, and when the case was before the Sheriff Principal the defender added, by way of amendment, a new plea-in-law maintaining that the pursuer was not entitled to recover damages by reason of public policy. The Sheriff found that the defender had been guilty of negligence which caused loss, injury and damage to the pursuer, but he also found that the pursuer had been guilty of negligence by reason of (a) his embarking on the motor car's journey when he knew that the driver, i.e. the defender, was under the influence of alcohol at the time, and (b) his failure to use a seat belt. The Sheriff assessed liability on a 5050 basis and reduced his computation of damages accordingly. None of these elements in his decision has been challenged by the parties.
The Sheriff found that the defender's plea of volenti non fit injuria had been established at common law, but he further found that by virtue of the provisions of section 148 (3) of the Road Traffic Act 1972 the facts that the pursuer willingly accepted the risk of negligence on the part of the defender did not negative the liability of the defender. The Sheriff Principal adhered to the Sheriff's decision on these matters, but had to deal with a new matter which was introduced before him but which had not been advanced to the Sheriff. This argument was to the effect that public policy should preclude the recovery of damages where the parties are engaged in a common criminal enterprise which was the situation here. There was no record for such an argument; but the defender was allowed to amend his record, without objection, to incorporate a new plea-in-law to cover it. That plea-in-law is numbered 6 (a) and states: "The pursuer not being entitled to recover damages by reason of public policy for any loss suffered by him, the defender should be assoilzied". It should be noted that no additional averments were made to support that plea-in-law. In the result, however, the Sheriff Principal rejected this argument, holding that it was a misuse of language to say that the pursuer, because he was being driven by one with excess of alcohol in his blood, was engaged in a criminal enterprise. He pointed out that the defender had been convicted of contraventions of sections 3 and 6 (1) of the Road Traffic Act 1972, but that the pursuer was not charged with acting art and part in the commission of these statutory offences. Nor was there any finding that he was acting art and part, and the Sheriff Principal was not prepared to proceed on the assumption that he was. On the other side of the fence, the Sheriff Principal did not consider that he would be justified in differing from the Sheriff on his finding that the pursuer had willingly accepted the risk of negligence on the part of the defender, but he came to the same conclusion as the Sheriff on the effect of section 148 (3) of the Act.
Before this Court similar general stances were taken. On the basis that the Sheriff was right in his finding on volenti non fit injuriathe defender's counsel submitted in the first place that the effect of that maxim was to exclude the existence of a legal duty by the defender towards the pursuer so that there could never be any liability to be excluded by section 148 (3), and secondly that in any event that subsection had only a limited application which did not extend to cases where the volenti maxim was based on acceptance of the risk in circumstances such as existed here. Pursuer's counsel submitted that the Sheriff was wrong in holding that volenti had been established, but that he had been right in his interpretation and effect of section 148 (3).
It seems to me logical to consider first of all whether the pursuer's attack on the Sheriffs finding on volenti was well founded. If it was, then the defender's arguments do not get off the ground. In considering thisand indeed the other argumentsit has to be remembered that the Sheriffs findings in fact, which were not challenged by either party, constitute the factual basis against which the legal issues have to be determined. The argument presented by counsel for the pursuer that the findings in fact did not warrant the Sheriffs decision on the point was based on a submission that there was nothing in the findings to show that the accident was caused by reason of the defender's consumption of alcohol. There was accordingly no causal connection between the condition to which the pursuer consented and the accident.
In my opinion this argument can be disposed of shortly. It is true that there is no finding in fact to the effect that there was such a causal connection. Pursuer's counsel fastened on the fact that finding no. 14 simply says"The accident was caused by the fault of the defender". But if the findings are read as a whole a picture is presented which fills in the bare bones of that finding. The defender's blood alcohol level was 142 milligrammes of alcohol per 100 millimetres of blood (finding no. 16). At the time of the accident all three men in the carand this of course included the defenderwere drunk (finding no. 13). At a bend in the road the defender lost control of the car and it collided with a lamp-post (finding no. 8). No other cause of the defender losing control of the car was advanced. It is clear from the Sheriffs note that he associated the defender's negligent driving which caused the accident with the alcohol which he had consumed, and from the findings as a whole I am of the opinion that he was perfectly entitled to form that inference and act upon it. In my view this...
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