Dube, a passenger in a car driven by Labar, was injured when it turned over. Both had been drinking the night before and on the day of the accident, and it appeared that Dube had also been drinking in the car as a passenger. Dube took over as driver when Labar was unable to start the car after stopping to pick up two hitchhikers. The appellant got into the car as a passenger after a short exchange in which the respondent asserted that he was capable of driving. The accident occurred shortly thereafter. The car veered as Labar turned to speak to one of the hitchhikers in the back seat. Dube attempted to grab the wheel and straighten out the car's course but his attempts eventually resulted in the car's overturning. The appellant was unsuccessful at trial as the jury found that volenti non fit injuria applied and a subsequent appeal on whether volenti applied to a negligence case on the highways was dismissed.
- Does the volenti non fit injuria defence apply here?
Appeal dismissed with costs to the respondent.
Estey, writing for the court, discusses that in order for volenti non fit injuria to apply as a defence the defendant must prove that the plaintiff, expressly or through implication, agreed to exempt the defendant from liability for any damage suffered by the plaintiff. It will only apply in cases where it can be said that there was an understanding on the part of both parties that the liability had been waived. Obviously, this does not occur very frequently in car accident cases, and even more infrequently in cases involving intoxication, as you must be in the right state of mind to properly agree to waive the other party’s liability.
In applying this to the case at bar Estey decides that it is clear that Dube voluntarily assumed the risk when he took the wheel and that while there had been some confusion with expressing the question of volenti non fit injuria and contributory negligence to the jury at trial, their answers indicated that they had not been confused.
In order for the volenti non fit injuria defence to apply there must be an agreement between the two parties, either express or implied, that the plaintiff waives the liability owed to him by the defendant (both physical and legal risk) for personal injury.