159 / 736
figure, at 10 per cent. Judgement accordingly.
(Kelly v. WRN Contracting Ltd. and Another;
Burk (Third Party)
)
Negligance—Infant Plaintiff, Volenli non jit injuria
The infant plaintiff and the infant defendant used
to ride from time to time in each other's cars.
Neither of them was insured against injury to
passengers, and both knew this. Some three weeks
before the accident the defendent fixed a notice
to the facial panel of his car immediately in front
of the passenger seat stating that passengers rode
in the vehicle at their own risk and that neither
the owner or the driver would be liable for per
sonal injury loss or damage however caused. On
the day of the accident the plaintiff remembered
that he had left something in a cafe and persuaded
the Defendant to drive him back there in the Def
endants car by offering to contribute to the cost
of the petrol for the journey which was under ten
shillings. On the journey back home the Defend
ant as a result of his admitted negligence drove
his car into a wall injuring the plaintiff. In an
action for damages for personal injuries by the
plaintiff against the Defendant, the Defendant
pleaded volenti non fit injuria relying on the
notice fixed to the panel of his car.
It was held (Devon Assizes: John Stephensen
J.: January 25, 1968) that the plea succeeded and
the defendant was entitled to judgement. As there
was no contract between the parties, but merely
a friendly arrangement to go on the journey, the
notice was not part of a contract and was unen
forceable against the plaintiff. However a plea
of volenti was open to a defendant against an
infant plaintiff and on the facts the plaintiff was
volens, for the terms of the notice were appreciated
by him, and therefore he had agreed to be carried
at his own hisk and to exempt the defendant from
liability for negligence.
(Buckpitt v Oats (1968) I All E.R. 1145.)
Road Traffic Act—Driving Under Age
The defendant was
found driving a motor
coach, which ranked as a heavy motor car under
s.253
(3) of the Road Traffic Act 1960, and
consequently could not lawfully be driven by a
person under 21. The defendant was 20 at the
time of the alleged offence and he pleaded guilty
before the magistrates to driving while disqualified,
contrary to s. 110 of the Act of 1960. He was fined
and disqualified for a period of 12 months. He
applied for an order of certiorari to quash his
conviction on the ground that he had been wrong
ly charged under s.110 in that that section should
be applied only where the disqualification was a
disqualification by order of the court.
It was held
(Q.B.D. Div. Ct.: Lord Parker
L.C.J., Winn L.J. and Ashworth J.: February 19,
1968) that the prosecution had in effect a right
to elect to proceed against the applicant either
for an offence of driving under age contrary to s. 5
of the Act of 1960 (carrying comparatively minor
penalties and only discretionary disqualification)
or to proceed under s. 110 (carrying greater pen
alties and obligatory disqualification). Where
Parliament intended disqualification to be confined
to disqualification by order of the court (e.g. in
ss. 10 and 109) it said so expressly. In the present
case the applicant had been properly charged and
convicted and his application for an order of
certiorari would be refused.
(R. v. Saddlesworth Justices, ex p. Stable (1968)
1 All E.R. 1189).
Master and Servant: Owner driver not a
"Servant":
In a contract between the plaintiff, a company
marketing and selling concrete and L a driver,
L was declared to be an independent contractor.
A condition of the contract was that L would at
his own expense carry concrete for the plaintiff
and make available throughout the contract per
iod a vehicle bought by him from a Finance organ
isation associated with the plaintiff. L was to re
pair and insure the vehicle and paint it in the
plaintiff's colours and to attach to it a mixing unit
belonging to the plaintiff company and to drive
the vehicle himself or with the company's consent
hire a competent driver. L was obliged
to wear
the company's uniform and comply with the com
pany's rules. The Minister of Pensions and Nat
ional Insurance determined that L was an employ
ed person "for the purposes of the National In
surance Act, 1965."
It was held on an appeal against this decision
that whether a party to a contract was a servant
or an independant contractor was a conclusion of
Law which depended on the rights conferred and
duties imposed by the contract and a declaration in
17