Court case[1991] 2 QB 6

The plaintiff and Murray spent the afternoon drinking together; Murray drank the equivalent of about seventeen measures of whisky. Murray then suggested a joy ride in his light aircraft. The plaintiff drove him to the airfield, helped him start the engine and refuel, and went up with him, although the weather was poor and the airfield was closed. The plane crashed soon after take-off; Murray was killed and the plaintiff severely injured. The plaintiff sued Murray's estate in negligence; the estate pleaded volenti non fit injuria and contributory negligence.

The Court of Appeal held that the defence of volenti non fit injuria succeeded and the plaintiff recovered nothing. The plaintiff, though he had been drinking, was not so drunk as to be incapable of understanding the risk; Murray's intoxication was extreme and glaringly obvious, and flying is an activity in which drunkenness creates a very high risk. By embarking on the flight in those circumstances the plaintiff had implicitly waived his right to damages for injury caused by Murray's failure to fly carefully. Dann v. Hamilton was distinguished on the degree of intoxication and the nature of the activity.