QUEENSLAND. Negligence-Accident-Gratuitous passenger in motor car-Claim against driver for
injuries-Drunkenness of driver and passenger-Duty of driver to passenger- Acceptance of risk-Volenti non fit injuria-Motor Vehicles Insurance Acts BRISBANE,
1936 to 1945 (Q.) (1 Edw. VIII. No. 31-9 Geo. VI. No. 27), 8. 3 (2). June 14, 15,
In an action for damages for personal injuries sustained in an accident to a motor car by the plaintiff, a gratuitous passenger, it appeared that although the accident was due to the intoxication of the driver, the passenger was also intoxicated and had been in the company of the driver for several hours, drinking liquor with him, and continuing the trip whilst both were drinking intoxicants at intervals.
The trial judge found that the plaintiff knew of the driver's intoxication and voluntarily encountered the obvious risk associated with the drunken condition of the driver and that there was no breach of duty by the driver to him and gave judgment for the defendant.
Held that the findings of the trial judge should not be disturbed; by McTiernan and Williams JJ. on the ground that the defence of volenti non fit injuria had been established, as the passenger knew and appreciated the danger of the situation and voluntarily consented to take the obvious risk associated therewith; by Webb J. on the ground that in the circumstances there was no breach of any duty owed by the driver to the passenger.
Insurance Commissioner v. Joyce, (1948) 77 C.L.R. 39, applied. Decision of the Supreme Court of Queensland (Matthews J.) affirmed.
APPEAL from the Supreme Court of Queensland.
An action was commenced in the Supreme Court of Queensland by Stanley Adrian Roggenkamp against Albert George Bennett claiming damages for injuries sustained whilst a passenger in a
motor car owned by the defendant and negligently driven by the defendant's son Noel James Bennett. Under the provisions of S. 3 (2) of The Motor Vehicles Insurance Act 1936 to 1945 for the purpose of a claim for personal injuries the son was deemed to have driven the car in the course of the defendant's service.
The defence was a denial of the negligence alleged and also raised the following: Volenti non fit injuria, contributory negligence and that in the circumstances there was no breach by the driver of any duty owed to the plaintiff.
The action was tried by Matthews J., without a jury, who gave judgment for the defendant. The facts appear from the following portions of his Honour's judgment :-
On the evidence before me I find that on the day in question the plaintiff and the defendant's driver who had known each other in Java and who had not met for a period of about two years came together at some time during the forenoon of 20th May; they made arrangements to go for a few days to Southport, or the South Coast, if they could get some…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Roggenkamp v Bennett [1950] HCA 23
Case
[1950] HCA 23
Decision Date
CaseChat Overview and Summary
This case involved an appeal to the High Court of Australia from a decision of the Supreme Court of Queensland. The appellant, Roggenkamp, was a gratuitous passenger in a motor vehicle owned by the respondent, Bennett, and driven by Bennett's son. Roggenkamp claimed damages for injuries sustained in an accident, alleging negligent driving. The primary defence raised was that Roggenkamp, being intoxicated and having voluntarily participated in the drinking with the driver, had voluntarily accepted the risks associated with the driver's condition.
The legal issues before the High Court were whether the trial judge's findings that the respondent had established the defences of *volenti non fit injuria* and that there was no breach of duty owed by the driver to the passenger were correct. Specifically, the court had to determine if Roggenkamp, by his own intoxication and continued participation in drinking with the driver, had fully appreciated and voluntarily accepted the obvious risks of travelling with a driver in such a state.
The High Court, by majority, dismissed the appeal. McTiernan and Williams JJ. held that the defence of *volenti non fit injuria* was established, finding that Roggenkamp knew and appreciated the danger and voluntarily consented to the risk. They affirmed the trial judge's findings of fact regarding the extent of intoxication and Roggenkamp's participation in it. Webb J. dismissed the appeal on the ground that, in the circumstances, there was no breach of any duty owed by the driver to the passenger, a position consistent with the reasoning in *Insurance Commissioner v. Joyce*. The court found that the trial judge's findings of fact, including the degree of intoxication and Roggenkamp's awareness of it, were well-supported by the evidence and should not be disturbed.