Priestley v Gilbert

Priestley v Gilbert
Citation	Priestley v Gilbert (1973), 40 DLR (3d) 349
Appellant	Priestley
Respondent	Gilbert
Year	1973
Court	Court of Appeal for Ontario
Judge	Schroeder JA
Country	Canada
Province	Ontario
Area of law	Voluntary assumption of risk
Issue	What circumstances are needed for the volenti non fit injuria defence to apply?

Facts

Priestly and Gilbert had a long day of drinking together. They were both severely intoxicated and the respondent was driving. There was a serious car accident caused by the defendant's negligence killing two people in the other car and seriously injuring the appellant. The case was dismissed at trial on a volenti non fit injuria defence.

Issue

1. Does volenti non fit injuria apply in this situation?
2. Does it matter that the plaintiff was drunk?

Decision

Appeal dismissed with costs to the defendant.

Reasons

The judge states clearly that the appellant voluntarily assumed the risk associated with being in the car with the respondent by drinking together with him all day and having no reservations about driving with him. It is identical in law to a situation where he was sober, realized how drunk the defendant was, but still knowingly got in the car as a passenger. This assent is not negated simply because he was intoxicated.

Ratio

Drinking together with someone until you are both intoxicated and then voluntarily being a passenger while he or she drives implies that you have voluntarily assumed all of the risks associated with the drive - the fact that you are intoxicated and cannot properly understand the severity of this decision does not make volenti non fit injuria inapplicable.