Scottish Court of Session Decisions

At advising on 22nd November 1983,—

LORD JUSTICE-CLERK (Wheatley).—On 30th June 1978 the pursuer was a passenger in a motor car driven by the defender which was involved in an accident resulting in certain injuries to the pursuer. The pursuer raised this action against the defender seeking damages for the loss, injury and damage he thereby sustained, and the Sheriff in due course awarded him damages, modified by reason of contributory negligence. The defender appealed the case to the Sheriff Principal who, subject to a minor matter of no relevance to this appeal, adhered to the Sheriff's judgment, and this appeal has been taken against the Sheriff Principal's decision.

The pleadings in the case contain averments normally found in a reparation action arising out of a motor accident, but they have two additional features. In the first place the defender has a plea-in-law, supported by averments, of volenti non fit injuria, and when the case was before the Sheriff Principal the defender added, by way of amendment, a new plea-in-law maintaining that the pursuer was not entitled to recover damages by reason of public policy. The Sheriff found that the defender had been guilty of negligence which caused loss, injury and damage to the pursuer, but he also found that the pursuer had been guilty of negligence by reason of (a) his embarking on the motor car's journey when he knew that the driver, i.e. the defender, was under the influence of alcohol at the time, and (b) his failure to use a seat belt. The Sheriff assessed liability on a 50–50 basis and reduced his computation of damages accordingly. None of these elements in his decision has been challenged by the parties.

The Sheriff found that the defender's plea of volenti non fit injuria had been established at common law, but he further found that by virtue of the provisions of section 148 (3) of the Road Traffic Act 1972 the facts that the pursuer willingly accepted the risk of negligence on the part of the defender did not negative the liability of the defender. The Sheriff Principal adhered to the Sheriff's decision on these matters, but had to deal with a new matter which was introduced before him but which had not been advanced to the Sheriff. This argument was to the effect that public policy should preclude the recovery of damages where the parties are engaged in a common criminal enterprise which was the situation here. There was no record for such an argument; but the defender was allowed to amend his record, without objection, to incorporate a new plea-in-law to cover it. That plea-in-law is numbered 6 (a) and states:

"The pursuer not being entitled to recover damages by reason of public policy for any loss suffered by him, the defender should be assoilzied".

It should be noted that no additional averments were made to support that plea-in-law. In the result, however, the Sheriff Principal rejected this argument, holding that it was a misuse of language to say that the pursuer, because he was being driven by one with excess of alcohol in his blood, was engaged in a criminal enterprise. He pointed out that the defender had been convicted of contraventions of sections 3 and 6 (1) of the Road Traffic Act 1972, but that the pursuer was not charged with acting art and part in the commission of these statutory offences. Nor was there any finding that he was acting art and part, and the Sheriff Principal was not prepared to proceed on the assumption that he was. On the other side of the fence, the Sheriff Principal did not consider that he would be justified in differing from the Sheriff on his finding that the pursuer had willingly accepted the risk of negligence on the part of the defender, but he came to the same conclusion as the Sheriff on the effect of section 148 (3) of the Act.

Before this Court similar general stances were taken. On the basis that the Sheriff was right in his finding on volenti non fit injuriathe defender's counsel submitted in the first place that the effect of that maxim was to exclude the existence of a legal duty by the defender towards the pursuer so that there could never be any liability to be excluded by section 148 (3), and secondly that in any event that subsection had only a limited application which did not extend to cases where the volenti maxim was based on acceptance of the risk in circumstances such as existed here. Pursuer's counsel submitted that the Sheriff was wrong in holding that volenti had been established, but that he had been right in his interpretation and effect of section 148 (3).

It seems to me logical to consider first of all whether the pursuer's attack on the Sheriffs finding on volenti was well founded. If it was, then the defender's arguments do not get off the ground. In considering this—and indeed the other arguments—it has to be remembered that the Sheriffs findings in fact, which were not challenged by either party, constitute the factual basis against which the legal issues have to be determined. The argument presented by counsel for the pursuer that the findings in fact did not warrant the Sheriffs decision on the point was based on a submission that there was nothing in the findings to show that the accident was caused by reason of the defender's consumption of alcohol. There was accordingly no causal connection between the condition to which the pursuer consented and the accident.

In my opinion this argument can be disposed of shortly. It is true that there is no finding in fact to the effect that there was such a causal connection. Pursuer's counsel fastened on the fact that finding no. 14 simply says—"The accident was caused by the fault of the defender". But if the findings are read as a whole a picture is presented which fills in the bare bones of that finding. The defender's blood alcohol level was 142 milligrammes of alcohol per 100 millimetres of blood (finding no. 16). At the time of the accident all three men in the car—and this of course included the defender—were drunk (finding no. 13). At a bend in the road the defender lost control of the car and it collided with a lamp-post (finding no. 8). No other cause of the defender losing control of the car was advanced. It is clear from the Sheriffs note that he associated the defender's negligent driving which caused the accident with the alcohol which he had consumed, and from the findings as a whole I am of the opinion that he was perfectly entitled to form that inference and act upon it. In my view this argument has to be rejected.

The case for the appellant took three forms. In the first place it was submitted that there must be a duty to take care before any liability can be incurred, and since volenti had been established it meant the pursuer had ab ante absolved the defender from taking reasonable care so far as he was concerned. That meant that there was no duty on the defender's part and accordingly no liability to which the provisions of section 148 (3) could relate. In the second place it was argued that on a proper construction of section 148 (3) the terms thereof did not apply to circumstances such as were present in this case. Finally it was submitted that it would be contrary to public policy to allow one party to a joint criminal enterprise to recover damages from another party in that enterprise in respect of the latter's negligence while engaged in that enterprise.

I accordingly proceed to examine each of these arguments in turn. On a purely technical basis I find it difficult to entertain an argument which seems to run contrary to the defender's own pleadings. In the circumstances of the accident the pursuer in condescendence 3 averred various duties of care which the defender owed to him. Far from asserting that the defender owed no duties of care to the pursuer in the circumstances the defender opened his averments in answer 3 with the words:

"Admitted that certain duties of care were incumbent on the defender…quoad ultra not known and not admitted".

He then ascribed certain duties of care which were incumbent upon the pursuer which he followed up with the averment:

"The pursuer voluntarily assumed the risk of harm to himself by accepting a lift from the defender when he knew him to be so drunk as to be unable to drive the car safely or exercise reasonable care".

That is all that is said in relation to volenti apart from the fourth plea-in-law for the defender:

"Separatim, the pursuer having voluntarily accepted the risk of sustaining injuries such as he has sustained in the said accident, the defender should be assoilzied".

There is no plea-in-law which specifically asserts that the defender owed the pursuer no duty to take care in the circumstances.

This argument of the defender seems to be based on an observation of Asquith J. in Dann v. Hamilton [1939] 1 K.B. 509 where his Lordship said at p. 512:

"As a matter of strict pleading it seems that the plea of 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".

I pause to observe that the same might be said about an admission of duty. In Bankhead v. M'Carthy 1963 SC 263 Lord Walker expressed an obiter view to the effect that he was not at all clear that the plea of volenti in England operates in the same way as it does in Scotland, and quoted the above passage in the opinion of Asquith J. as illustrative of the English view. He went on to say that 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 duty. For my part I am content to examine the Scottish view on the matter for the decision in this case. Although in the case of M'Caig v. Langan 1964 S.L.T. 121 Lord Kilbrandon disagreed with Lord Walker's judgment in Bankhead v. M'Carthy, this was in relation to the decision on contributory negligence and not on what Lord Walker said about volenti. In Wallace v. Culter Paper Mills Co. Ltd. (1892) 19 R. 915 Lord President Robertson, discussing what was involved in volenti, considered the position of a person who was sciens and then went on to say of volens:

"But…there remains over the question whether he ‘accepts the risk’ in this other sense, that he agrees to relieve the master of the consequences of any injury caused by what, ex hypothesi, is the master's fault, and insures himself against the risk".

Lord Adam, under reference to the decision in Smith v. Baker & Sons [1891] AC 325, said:

"I think it was determined in that case that it was a question of fact in each case whether a workman, who has been injured in the course of his employment, has agreed either expressly or by implication to take the risk of the injuries he may have sustained, or, as it is put by Lord Watson, whether he has agreed that, if injury should befall him, the risk was to be his and not his masters, ‘risk’ being here used as applicable to liability for the consequences of the injury, and not, of course, to the personal injury".

Lord M'Laren expressed himself thus:

"In the absence of any evidence tending to show that the workman has agreed to relieve the master of his responsibility for negligence, I should not infer the existence of such an agreement".

Counsel for the defender laid particular emphasis on the last sentence of Lord Kinnear's opinion where he said:

"Upon the evidence in the case I agree that the pursuer's husband did not voluntarily agree to relieve the employer of the liability to fence the machine properly".

This was said to point conclusively to Lord Kinnear's view that volenti relieved the employer of his legal duty to take reasonable care for his employee's safety, but, when regard is had to what his Lordship had said earlier in relation to the employee having taken the risk himself, where he had added, "or, in other words, has agreed to relieve his employer of the consequences of his fault", it seems to me that what he said in the last sentence of his opinion has to be read as "did not voluntarily agree to relieve his employer of his liability for failing to fence the machine properly". In Stewart's Executrix v. Clyde Navigation Trustees 1946 S.C. 317, Lord Normand at p. 328 quoted with acceptance the foregoing views of Lord President Robertson. In the same case Lord Moncrieff at p. 333 said that the case was affected by no circumstances warranting the inference that "the workman had antecedently and tacitly discharged the respondents from their liability for breach of statute and had himself agreed to underwrite the risk of their being in breach". In M'Caig v. Langan 1964 S.L.T. 121 Lord Kilbrandon adopted from the many explanations of the maxim of volenti a passage from Lord M'Dermott in Kelly v. Farrans Ltd. [1954] N.I. 41, at 56, namely:

"The question raised by a plea of volenti non fit injuria is not whether the injured party consented to run the risk of being hurt, but whether the injured party consented to run that risk at his own expense so that he and not the party alleged to be negligent should bear the loss in the event of injury. In other words, the consent that is relevant is not consent to the risk of injury but consent to the lack of reasonable care".

Finally, in Fowler v. Tierney 1974 S.L.T. (Notes) 23 Lord Maxwell said:

"In the normal volenti case there is required, I think, proof that the pursuer has knowingly submitted himself to some special or exceptional risk in such circumstances that the court can infer from the whole facts that he is consenting to run the risk of the other party's negligence at his own expense, or, to put the matter in another way, that he is consenting to lack of reasonable care on the part of the other party".

From these expressions of view as to what is involved in the maxim so far as the law of Scotland is concerned, I can find no support for, but rather refutation of, the contention that its effect here is to establish that on this journey there never was any duty on the defender as the driver of the car to take reasonable care quoad the pursuer; that consequently there could never be any liability on the defender at all; and that consequently there could be no liability which fell within the purview of section 148 (3) of the Road Traffic Act 1972. In my opinion the effect of the maxim was not to relieve the defender from any duty to take care quoad his passengers. On the contrary the maxim proceeds on the basis that there is duty to take care and not be negligent, but the successful establishment of the maxim means that the pursuer has accepted the risk of the defender's negligence in the exercise of his legal duties and has absolved the defender from the consequences arising from that negligence. So even apart from the technical difficulty of accepting it at all, to which I referred earlier, I am of the opinion that the defender's first argument fails.

I now consider the second submission, in relation to the meaning and effect of section 148 (3) aforesaid.

[His Lordship quoted the subsection, and continued.] Counsel for the defender maintained that the provisions of that subsection had no bearing on a volenti case. As I understood the argument it was that the references to sections 143 and 145 of the Act in the subsection meant that "liability" therein related throughout to the liability of the user of the car to indemnify third parties entitled to indemnity under a policy of insurance and not in the three lines following (b) to his liability to a passenger in respect of a breach of a legal duty in the use of the car. In my opinion that latter liability in the subsection means the liability in law owed by the user of the vehicle to persons carried therein in respect of whom an insurance policy under section 145 has been issued. The words used seem to me clearly to relate to the maxim by their very terms. I accordingly reject this argument.

This brings me to the "public policy" argument. This was an argument conjured up by counsel for the defender during the debate before the Sheriff Principal. It was not addressed to the Sheriff for very obvious reasons. There was neither averment nor plea on the record to warrant it. There was accordingly no evidence led in support of it to ascertain inter alia the nature and degree of the crime in which the pursuer and defender were alleged to be engaged in jointly. Even the insertion of the new plea-in-law during the debate before the Sheriff Principal made not the slightest difference to the position so far as averment was concerned and the plea itself, standing in unsplendid isolation, is so vague as to be meaningless. In my opinion it should never have been allowed. It was argued before us that the ingredients of the ground on which the plea is based can be found in the findings in fact. I disagree. Defender's counsel were in doubt as to the "crime" in which the pursuer and defender were jointly engaged by way of a common criminal enterprise, and suggested for instance that it was a contravention of the Road Traffic Act 1972 with which neither the defender nor the pursuer had been charged. In view of all these considerations I do not regard a refusal to entertain this ground of appeal as simply a technical decision. The defence which counsel sought to erect is one which could have far reaching effects, and is one which could give rise to delicate decisions on what is embraced in "crime" in this context. It would be very unfortunate if such matters had to be decided on barren pleadings and the absence of evidence which exist here. I am accordingly of the opinion that this defence should not be entertained in the circumstances here present, and in that situation it seems to me to be inadvisable to express any views on the law on the subject.

For these various reasons I would refuse the appeal and affirm the interlocutor of the Sheriff Principal dated 6th March 1981.

LORD HUNTER .—Three questions were the subject of argument in this appeal:

1. (1) whether the pursuer was disentitled to recover damages "by reason of public policy";

2. (2) whether, on the facts found, a plea of volenti non fit injuria would, apart from the provisions of section 148 (3) of the Road Traffic Act 1972, be successful; and

3. (3) whether, in the event of the second of the foregoing questions being answered in the affirmative, the said section 148 (3) of the Act of 1972 applied, with the effect that liability of the defender should not in the circumstances be treated as negatived.

If the first of these three questions were to be answered in a sense favourable to the appellant a decision on the other two questions would not strictly be necessary. It is accordingly convenient to deal at the outset with the question of public policy. In my opinion this point can, in any event, be disposed of on a short ground of pleading.

It was argued on behalf of the defender and appellant that the pursuer was disentitled to claim reparation from him in respect that, at the material time, they were joint participants in a criminal enterprise. It was submitted that the pursuer's claim was defeated by application of the brocard ex turpi causa non oritur actio, either because in law one joint participant would not in such circumstances be held to owe a duty of care to the other joint participant or beacuse on grounds of public policy the Court would not countenance nor adjudicate on a claim by one such joint participant against another. I see no reason why a Scottish Court should not, on the basis of one or other or both of these principles, arrive in appropriate circumstances at a result the same as that reached in several cases in other jurisdictions, to which we were referred. See e.g. Smith v. Jenkins (1970) 44 A.L.J.R. 78; Ashton v. Turner [1981] Q.B. 137. Indeed, we were referred to a recent Outer House case in which the Lord Ordinary after considering English and Australian decisions bearing on the matter, applied the first of the two principles to which I have referred. Lindsay v. Poole 1984 S.L.T. 269.

It must, however, be observed that in Lindsay v. Poole, supra, the defender had in his written pleadings expressly and specifically raised the question of public policy. The contention that the defender owed no duty to the pursuer in the course of a joint criminal activity was supported not only by a plea-in-law in appropriate terms but also by specific averments of fact. Moreover, it is clear that the matters thus distinctly raised in the pleadings were fully explored at the proof. The procedure adopted in the present case was in marked contrast to that followed in Lindsay v. Poole . There was not a hint in the written pleadings that the question of public policy was to be raised until, during the concluding stages of the hearing of the appeal to the learned Sheriff Principal, the defender was allowed to add to the record by amendment his plea-in-law 6 (a). The plea-in-law so added at that very late stage was not supported by any averments of fact. In the foregoing circumstances it is hardly surprising that the question of public policy now sought to be raised on behalf of the defender and appellant was not explored at the proof in the present case, which was before answer, or, so far as appears from the findings and note of the learned Sheriff, made the subject of argument before him. It is clear, from the authorities cited to us, that the question whether two parties were participants in a joint criminal activity with the effect that one might in the circumstances be disabled from claiming reparation from the other is in a case like the present likely to be a question of fact and degree. Moreover, in such cases, the matters of fact and degree may, as the authorities show, be relatively narrow. To allow such matters to be raised at the stage when they were ultimately raised in the present case during an appeal after a concluded proof would in my opinion involve unjustifiable disregard of the rules of fair notice. It was somewhat faintly argued on behalf of the defender and appellant that the question of public policy was sufficiently raised by his third plea-in-law in the closed record as it originally stood. However, this plea, which is in the usual general terms, does not, in my opinion, contain any hint of the separate positive defence now sought to be put forward on the defender's behalf. It may be added that the very late contention that on grounds of public policy the defender at the material time owed no duty of care to the pursuer fits very ill with the defender's admission in the first sentence of answer 3 that "certain duties of care were incumbent on the defender". In the circumstances I am accordingly clearly of opinion that the attempted defence based on public policy is not open to the defender on his pleadings. I should add that, although I would on this question decide against the defender and appellant on the ground of lack of fair notice on record, I am far from satisfied that the question is even arguable on the basis of the findings in fact made by the Sheriff, which I did not understand to be challenged on either side of the bar in relation to this aspect of the appeal.

On the question whether, apart from any provisions of section 148 (3) of the Road Traffic Act 1972, the defender had succeeded in establishing the defence of volenti non fit injuria, I am of opinion that counsel for the defender and appellant made no real progress in their attempt to displace the reasoning and conclusions of the Sheriff and the Sheriff Principal. We heard some interesting argument regarding the jurisprudential content of the concept of volenti non fit injuria, and particularly on the question whether technically the plea involves a denial of any duty of care. See e.g.Dann v. Hamilton [1939] 1 K.B. 509 per Asquith J. at p. 512; Bankhead v. M'Carthy 1963 SC 263, per Lord Walker at p. 265. Leaving out of account cases arising between employer and employee and other analogous cases which stand in a somewhat special position, I would myself, so far as concerns the law of Scotland, respectfully adopt the formulations by Lord Kilbrandon in M'Caig v. Langan 1964 S.L.T. 121, at p. 124, and by Lord Maxwell in Fowler v. Tierney 1974 S.L.T. (Notes) 23, at p. 23. On the facts, as found by him, the learned Sheriff was, in my opinion, well entitled to make the inference which he incorporated in finding in fact (19). In the circumstances disclosed in the findings in fact this was, in my opinion, a case in which, to the knowledge of the pursuer, who had been in company with him on what is accurately described by the Sheriff Principal as a drinking expedition throughout the evening, the drunken condition of the defender at the material time was "extreme" and "glaring", to adopt the language of Asquith J. in Dann v. Hamilton, supra, at p. 518. In these circumstances I am satisfied that the pursuer, when he entered the car for the return journey to Gorebridge from Edinburgh, appreciated that the defender was incapable of exercising reasonable care and so consented to the lack of reasonable care on his part. It was suggested that the learned Sheriff had not found in fact that the accident in which the pursuer sustained his injuries was a result of the drunken condition of the defender. It is true that there is no specific finding to this effect, but in my opinion this is an inevitable inference from the whole findings in fact, including in particular findings in fact (3), (4), (5), (6), (8) and (13) to (16) inclusive, no other cause of the defender's loss of control of the car having been suggested.

I turn accordingly to the final question, namely whether, upon the assumption that the defence of volenti non fit injuria would otherwise succeed, the pursuer and respondent should nonetheless be able to pray in aid, in order to elide the effect of the defence, the provisions of section 148 (3) of the Act of 1972. That subsection, which apparently had as its object, or at any rate as its main object, the overruling by legislation of certain English decisions, enjoyed a brief life as section 1 (2) of the Motor Vehicles (Passenger Insurance) Act 1971 before being included in the Act of 1972, which was a consolidating statute. The subsection is somewhat convoluted in its drafting, which may perhaps account for the fact that the two reported decisions in England to which we were referred appear to go in opposite directions. Gregory v. Kelly [1978] R.T.R. 426, per Kenneth Jones J. at p. 430; Ashton v. Turner, supra, per Ewbank J. at pp. 147–148. Both the cases referred to were decisions by single judges, and the question arising under section 148 (3) of the Act of 1972 was dealt with in somewhat telegraphic terms, which suggests that the point may not have been very fully argued in either case. In Gregory v. Kelly the decision on this particular point was based on a concession, so that the brief observation by Kenneth Jones J. was technically obiter. The actual decision in Ashton v. Turner was based on the principle of public policy, and therefore the consideration of the defence of volenti non fit injuria together with the attendant question of the effect of section 148 (3) was not strictly necessary to the decision. In the present case the learned Sheriff and Sheriff Principal reached the same conclusion on the effect of the subsection as that reached by Kenneth Jones J., and in my opinion, on interpretation of the subsection, their conclusions were sound.

The argument presented by counsel for the appellant on the effect of section 148 (3) was based on a narrow and, in my opinion, rather refined interpretation of a particular part of its provisions. The argument was not based to any extent on the use of the phrase "so carried" in that part of the subsection which provides:—

"and the fact that a person so carried has willingly accepted as his the risk of negligence on the part of the user shall not be treated as negativing any such liability of the user".

No doubt this approach by counsel for the appellant was based, and in my opinion correctly based, on the view that the phrase "a person so carried" simply means a person carried in or upon the vehicle while the user is using it in circustances such that under section 143 of the Act there was required to be in force in relation to his use of it such a policy of insurance or security as is mentioned in section 143 (1), namely a policy of insurance or security in respect of third party risks complying with the requirements of Part VI of the Act. Clearly the pursuer was a person "so carried", and the contrary was not suggested by counsel for the appellant. It was, however, submitted by counsel for the appellant that the use of the word "liability" in the part of the statutory provision which I have quoted supra involved that the provision could not be designed to negative the defence of volenti non fit injuria, since that defence by its nature involved, in the event of the defence being upheld, the absence of a duty of care and therefore the absence of any liability for breach of a duty of care. I trust I do not do violence to the nature of the argument presented on behalf of the appellant, since at times it appeared to me to be nebulous and somewhat difficult to grasp. Its success would I think involve that the provisions of section 148 (3) could never apply to what has been called a "normal" case of volenti non fit injuria. This would seem to be a somewhat startling proposition having regard to the terms of the subsection. However, the proposition was one from which junior counsel for the appellant at any rate did not shrink.

In my opinion, on interpretation of section 148 (3) read as a whole, the first main provision down to the end of subparagraph (b) is designed to deal with the "contract" type of case, of which the "notice" cases were the most common example. The situation where there had been an antecedent agreement or understanding, whether intended to be legally binding or not, was dealt with by providing that certain terms contained or purported to be contained in such an antecedent agreement or understanding should be of no effect. I am further of opinion that the second main provision of section 148 (3), which I have quoted above, was designed to deal with the normal case of volenti non fit injuria where, to use the words of Lord Maxwell in Fowler v. Tierney, supra at p. 23:

"the pursuer has knowingly submitted himself to some special or exceptional risk in such circumstances that the court can infer from the whole facts that he is consenting to run the risk of the other party's negligence at his own expense or, to put the matter in another way, that he is consenting to lack of reasonable care on the part of the other party".

It will be observed that the terms of the second main provision of the subsection fit this formulation very closely. It is my view that the legislature intended in that provision to express in modern statutory terms the jurisprudential content of the normal case of volenti non fit injuria. In my opinion the phrase "such liability", when used in section 148 (3), means no more and no less than any such liability of the user in respect of persons carried in or upon the vehicle as is required by section 145 of the Act to be covered by a policy of insurance, including in terms of subsection (3) (a) of that section any liability in reparation incurred in respect of bodily injury to any person caused by, or arising out of, the use of a vehicle on a road. Upon that interpretation there is, in my view, no room for the ingenious argument presented on behalf of the appellant. When applied to the circumstances of the present case the word "liability" used in the second main provision of section 148 (3) means in my view the defender's liability in reparation to the pursuer in respect of bodily injury to the pursuer caused by and arising out of the use of the car in question on the road. The result, in my opinion, is that that liability in reparation, which on the findings would otherwise be negatived as a result of application of the maxim volenti non fit injuria, is not to be treated as negatived. Indeed, I am inclined to think that, if one were to apply the plain terms of the second main provision of section 148 (3), without any preconceptions as to the jurisprudential content of the maxim volenti non fit injuria, they would on the findings in the present case result in the liability of the defender to the pursuer in reparation not being treated as negatived.

For the foregoing reasons I am of opinion that the attack by counsel for the appellant on the decisions and reasoning of the learned Sheriff and Sheriff Principal has failed, and, accordingly, I agree that the appeal should be refused and that the interlocutor of the Sheriff Principal of 6th March 1981 should be affirmed.

LORD ROBERTSON .—The appeal in this case by the defender is against an interlocutor of the Sheriff Principal of the Lothians and Borders dated 6th March 1981 adhering, apart from a minor matter which is of no moment, to a judgment of the Sheriff. The pursuer on 30th June 1978 was a passenger in a car driven by the defender, and received injuries in a road accident near Danderhall, Midlothian. The Sheriff found in fact that the accident was caused by the fault of the defender which caused loss, injury and damage to the pursuer assessed at £750. By reason however, of the fact that the pursuer knew that the defender at the time of the accident was so drunk as to be incapable of driving the car safely, the Sheriff held that the pursuer thus willingly accepted as his the risk of negligence by the defender which might result in injury to him. So the Sheriff held that the defender's plea of volenti non fit injuria had been established at common law. He further held, however, that in terms of section 148 (3) of the Road Traffic Act 1972 this plea did not negative the liability of the defender. By reason of contributory negligence the Sheriff reduced the pursuer's damages by 50 per cent. The contributory negligence consisted of negligence by the pursuer by reason of (a) his embarking on the car journey when he knew that the driver was under the influence of drink and (b) failing to wear a seat belt.

On appeal there was no challenge to the findings in fact, the quantum of damages, or the apportionment of contributory negligence, if such were justified. The defender based his appeal on two main grounds, videlicet:—(a) that the Sheriff was correct in holding that the plea of volenti non fit injuriahad been established at common law, but that he erred in holding that by virtue of section 148 (3) of the 1972 Act this plea was negatived; if this plea was not so negatived the defender's liability was wholly elided: and (b) as the pursuer was engaged in a common criminal enterprise with the defender at the time of the accident, public policy precluded him from recovering damages from the defender.

Taking advantage of the appeal the pursuer cross-appealed upon the question whether the Sheriff and the Sheriff Principal were entitled on the evidence to hold that the plea volenti non fit injuria had been established at all. In that event the defender's arguments would fail ab initio.

Logically the latter argument for the pursuer comes first and may be dealt with shortly. In my opinion it is not well-founded. It was based upon a strict reading of the pursuer's pleadings and the findings in fact. In particular it was said that there was no finding in fact in terms that the accident was caused by reason of the defender's consumption of alcohol: there was thus no finding of a causal connection between the drunken condition of the defender consented to by the pursuer, and the accident. For the reasons given by your Lordship in the chair I reject this argument. The bare finding of fault in fact 14 is that the accident was caused by the fault of the defender, and taking that along with the various findings relating to the defender's drunken condition I am satisfied that this argument is not well founded and falls to be rejected.

Of the two arguments presented on behalf of the defender, argument (b) may also be dealt with shortly. This argument was not based upon the requisite pleadings and appears to have been developed for the first time during the debate before the Sheriff Principal. A new plea No. 6a was added at that time, but it is in the vaguest and most general terms. It has no averments to support it and of course was not pursued in evidence. In these circumstances there is insufficient material upon which the matter of public policy in relation to this alleged "crime" can be considered. This argument falls to be rejected.

The remaining argument relates to the effect of section 148 (3) of the Road Traffic Act 1972 upon the plea of volenti non fit injuria.On the assumption that in the circumstances the plea was established do the provisions of the said section 148 (3) operate to nullify the effect of the plea ?

[His Lordship quoted the subsection and continued:] The first argument for the appellant was based on a broad submission as to the nature of the plea of volenti. If facts had been found which established volenti that meant that in the circumstances the pursuer had ab ante released the defender from taking reasonable care for the pursuer's safety. In other words, no duty or breach of duty, and no liability, arose. On this hypothesis there could then be no "such liability" as is specified in section 148 (3) and this section simply did not apply to the circumstances of the case.

I agree that this argument is not really open to the defender upon his pleadings, which give no support to the argument that the defender owed no duty of care to the pursuer: indeed the defender asserts the contrary. In any event I consider that the true nature of the plea of volenti in Scots law is as set out by Lord Kilbrandon in M'Caig v. Langan 1964 S.L.T. 121 and Lord Maxwell in Fowler v. Tierney 1974 S.L.T. (Notes) 23. In my opinion the plea of volenti does not mean that the defender never had any duty to take reasonable care for the safety of the pursuer on the journey, but means rather that the pursuer knowingly accepted the risk of the defender's negligence in the exercise of his legal duties towards him and absolved the defender from the consequences of his negligence. In other words the pursuer consented to lack of reasonable care on the part of the defender. I reject this argument.

On the main argument submitted on behalf of the defender as to the meaning and effect of section 148 (3) it was said that the phrase "any antecedent agreement is understanding between them (whether intended to be legally binding or not) shall be of no effect…" was restricted to express written notice by the defender disclaiming liability. But, a meaning has to be given to the words after (a) and (b) in the section—videlicet "and the fact that a person so carried has wholly accepted as his the risk of negligence on the part of the user shall not be taken as negativing any such liability of the user". It is to be noted that these words would seem to fit exactly a person to whom the plea of volenti is applicable. This in my opinion indicates that the provisions of section 148 (3) are not restricted to the formal, written agreement, but may also apply to the case where without a formal agreement there is expressly or impliedly a willing acceptance of the risk by the pursuer. The phrase "such liability" refers back to the provisions of section 145 dealing with the liability of the user of the car to persons carried therein in terms of section 145.

I am content to affirm the interlocutor of the Sheriff Principal dated 6th March 1981 to refuse the appeal.