Court case[1939] 1 KB 509

The plaintiff, a young woman, and her mother went to London in a car driven by Hamilton. During the evening Hamilton drank a considerable quantity of alcohol in the plaintiff's company. On the return journey the plaintiff's mother got out to take a bus, and the plaintiff chose to continue in the car with Hamilton, though she knew he had been drinking. Shortly afterwards, as a result of his negligent driving, the car collided with another vehicle; Hamilton was killed and the plaintiff injured. She sued his estate.

Asquith J held that the defence of volenti non fit injuria failed and gave judgment for the plaintiff. The maxim might apply where the drunkenness of the driver was so extreme and so glaring that accepting a lift was like "engaging in an intrinsically and obviously dangerous occupation, intermeddling with an unexploded bomb or walking on the edge of an unfenced cliff". But on the facts the driver's intoxication was not of that degree, and the plaintiff, by travelling with a driver she knew had been drinking, had not consented to release him from liability for negligence. Contributory negligence was not pleaded, and the judge did not consider it.