Volenti and passengers in motor vehicles (Road Traffic Act 1988 s.149)
Mia accepted a lift home from a party in England from her friend Jonah, knowing that he had drunk a lot of alcohol. Before setting off, at Jonah's insistence, she signed a note saying: 'I travel entirely at my own risk and will not sue Jonah for any injury.' Jonah, whose use of the car was covered by compulsory motor insurance, drove negligently and crashed, injuring Mia. Jonah's insurers argue that Mia consented to the risk.
Which of the following best describes the insurers' argument?
Choose one answer to see the reasoning.
Worked answer
Correct answer A: Volenti cannot be relied on against Mia and the signed note has no effect, although her damages may be reduced for contributory negligence.
THE RULE TO REMEMBER
A passenger's agreement or willing acceptance of the risk of the driver's negligence does not negative the insured driver's liability (RTA 1988 s.149), though contributory negligence may still reduce damages.
Volenti and passengers in motor vehicles (Road Traffic Act 1988 s.149)
Section 149 of the Road Traffic Act 1988 applies where a vehicle is being used in circumstances requiring compulsory insurance. Under s.149(2) any antecedent agreement or understanding between the user and a passenger, whether or not intended to be legally binding, is of no effect so far as it purports to negative or restrict the user's liability to the passenger that must be covered by insurance. Under s.149(3) the fact that a passenger has willingly accepted the risk of the driver's negligence is not to be treated as negativing that liability. So neither Mia's signed note nor her knowledge that Jonah was drunk gives the insurers a defence of consent. That does not leave the insurers without an argument: by choosing to travel with a driver she knew to be drunk, Mia may be found contributorily negligent under the Law Reform (Contributory Negligence) Act 1945, and her damages reduced accordingly.
Why B is wrong: Section 149(2) makes any antecedent agreement restricting the driver's liability to a passenger of no effect.
Why C is wrong: Section 149(3) provides that willing acceptance of the risk of the driver's negligence does not negative liability.
Why D is wrong: Travelling with a drunk driver is not, without more, the kind of criminal conduct that bars a passenger's claim for illegality.
Why E is wrong: Section 149(4)(b) treats any agreement made at any time before the liability arose as antecedent, so timing does not save it.
A little more practice done.
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