Scottish Court of Session Decisions

LORD WALKER'S OPINION.—The question is whether or not certain averments by the defender are relevant to infer that negligence on the part of the pursuer materially contributed to cause the accident which he sustained. The pursuer is claiming reparation for injuries sustained while travelling as a passenger in a motor car which was driven by the defender into collision with a stationary vehicle in Arklet Road, Glasgow, about 11.30 P.M. on 25th January 1961. The defender pleads that the accident was caused or materially contributed to by the pursuer, who in a drunken condition seized the steering wheel, and so made the defender lose control. Thus far no difficulty arises. But the defender goes on to allege that the pursuer himself had been drinking, and he proceeds:

"It was his (the pursuer's) duty to have regard for his own safety. He was aware that the defender had been drinking alcoholic liquor. He was or ought to have been aware that the defender's control of the car was liable to be affected thereby. He should not have travelled with him in such circumstances. By his own failure in duty he materially contributed to any damage which he suffered."

The pursuer pleads that these averments are irrelevant and ought to be excluded from probation. The defender replies that he has the support of English authority.

The English authorities to which I was referred are Dann v. Hamilton, [1939] 1 K. B. 509; Slater v. Clay Cross Co. Ltd., [1956] 2 Q. B. 264; and Dawrant v. Nutt, [1961] 1 W. L. R. 253. In the first of these cases the plaintiff had been a voluntary passenger in a motor car driven by a driver known to her to be under the influence of drink. She was injured in an accident caused by the drunkenness of the driver, who was killed. In an action against his personal representatives, Asquith, J. (as he then was) repelled a defence of volenti non fit iniuria. No question of contributory negligence had been raised.

Parenthetically, I may say that I am not at all clear that the plea of volenti in England operates in the same way as it does here. In Dann's case, at p. 512, Asquith, J., observed:

"As a matter of strict pleading it seems that the plea volenti is a denial of any duty at all, and, therefore, of any breach of duty, and an admission of negligence cannot strictly be combined with the plea."

That seems to be in line with the earlier English authorities, Baddeley v. Granville, (1887) 19 Q. B. D. 423, and Wheeler v. New Merton Board Mills Ltd., [1933] 2 K. B. 669, which had decided that the plea volenti has no validity against an action on breach of absolute statutory duty; for it is difficult to understand why a common law duty should be less sacrosanct than a statutory one. In Scotland the plea of volenti has never been regarded as being a denial of the duty, but rather as a consent to accept the consequences of a breach of the duty: Stewart's Executrix v. Clyde Navigation Trustees, 1946 S. C. 317. As, however, no plea of volenti has been stated in the present case, it is unnecessary to pursue the matter further.

In Slater's case Denning, L.J. (as he then was), in commenting on Lord Asquith's reply in the Law Quarterly Review (69 L. Q. R. 317) to certain criticisms which had been made in the same journal on the result of his decision in Dann's case, said:

"In so far as he (Lord Asquith) suggested that the plea of contributory negligence might have been available, I agree with him."

That observation is not only qualified, but I think it was also obiter. It related to the possible result of a plea which had not been taken.

In the last of the three cases, Dawrant, the plaintiff, had been injured while travelling as a passenger in a motor cycle combination driven by her husband in darkness and without lights. She knew that the lights had failed. Stable, J., held that by knowingly travelling in an un-illuminated combination, she was in breach of her duty to take reasonable care for her own safety—a duty which she had owed to the defendant who was a user of the highway—and that she was one-quarter to blame for her accident. The learned Judge nowhere explains his view of the causal connexion between her negligence and her accident.

Counsel for the pursuer referred me to a passage from Lord Wood's opinion in M'Naughton v. Caledonian Railway Co., (1858) 21 D. 160, at p. 166, quoted with approval by Lord President Clyde in Robinson v. William Hamilton (Motors) Ltd., 1923 S. C. 838, at p. 842. The passage is a long one, but I think the following makes clear the sense. Lord Wood said:

"It certainly cannot be said that, because the party injured has been guilty of some fault or negligence, he cannot recover. It is not sufficient to disentitle to damages that there has been fault on his part—that he has been doing something which, strictly, he ought not to have done, and without which having been done the injury would not have occurred. The fault must be such as to have directly conduced to the injury suffered, and not merely remotely connected with it."

The notion of "directly conducing" was for long enshrined in the time-honoured plea that negligence on the part of the pursuer "caused or materially contributed to cause" the accident he sustained: see, for example, the use of this phrase by Lord Macmillan in M'Govern v. James Nimmo & Co., 1938 S. C. (H. L.) 18, at p. 27. Section 1 (1) of the Law Reform (Contributory Negligence) Act, 1945, refers to a person suffering damage "as the result partly of his own fault." It was not argued, and I do not think it could have been successfully argued, that in introducing apportionment in place of defence, the Legislature intended there should be apportionment even where the pursuer's own fault did not materially contribute to cause his damage.

Returning now to the averment under challenge, I think that it might be open to a jury to find that the pursuer failed to take reasonable care for his own safety. Whether he did or not would be a question of fact to be decided in the light of the evidence. All would depend on the pursuer's state of knowledge about the defender having taken drink and about his control of the car being liable to be adversely affected. I do not think that the English authority goes so far as to suggest that a passenger might be lacking in care for his own safety by becoming a passenger in a car the driver of which, unknown to him, was under the influence of drink. Yet, being ignorant, an accident might happen to him due to the driver's drunkenness. The fact that he entered the car would no doubt be an historical antecedent but for which his accident would not have happened, but that would not "directly conduce" to his injury in the sense explained by Lord Wood. If he entered the car with knowledge of the driver's condition, I do not see how his knowledge could have varied the conditions of his accident. His accident would be due to exactly the same causes irrespective of his state of knowledge. In the present case, on the defender's averments, a jury would, in my opinion, be perverse if they held that the pursuer's knowledge materially contributed to cause his accident. I shall therefore find the averments irrelevant. The pursuer's third plea will accordingly be sustained and issues approved. As the case is to go to a jury, I shall also order that the defender's averments from the second word "esto" occurring in answer 3 to the end of that answer be deleted.