Roggenkamp v Bennett [1950] HCA 23

High Court of Australia McTiernan, Williams and Webb JJ. Roggenkamp v Bennett [1950] HCA 23

ORDER Appeal dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered.

June 23 McTiernan and Williams JJ.

This was an action of negligence in which the appellant was the plaintiff and the respondent the defendant. The appellant claimed damages for injuries which he alleged he suffered in consequence of the negligent driving of a motor car by the respondent's son.

The respondent was the owner of the car and by s. 3 (2) of The Motor Vehicles Insurance Act 1936 to 1945 Q. the son is deemed to have driven the car in the course of the respondent's service.

The respondent's statement of defence put the allegation of negligence in issue and set up the following defences: volenti non fit injuria, contributory negligence and that in the circumstances there was no breach by the defendant's driver of any duty owed to the appellant.

The action was tried by Matthews J. without a jury in the Supreme Court of Queensland and he gave judgment for the defendant. This appeal is brought by the appellant against this judgment.

It appears from the reasons for judgment of Matthews J. that at the trial the respondent did not dispute that it was a correct inference from the evidence that the appellant's injuries were caused by the failure of the respondent's son to exercise proper care in the management and control of the car. The respondent relied upon the defences of volenti non fit injuria, contributory negligence and that there was no breach of any duty owed to the appellant. Matthews J. decided that these defences were made out and his judgment is based upon his finding for the respondent on those defences.

As defences to an action for damages for injuries caused by the negligent driving of a motor car, these three defences are discussed in the case of Insurance Commissioner v. Joyce [5] . The instant case is like that case in that there is evidence that the driver's failure to control the motor car was due to intoxication and the appellant was a gratuitous passenger.