Voluntary assumption of risk, gratuitous passenger
In the so-called gratuitous passenger cases, the defence of voluntary assumption of risk, being a complete defence to negligence, has fallen into some disfavour with the courts in recent years, preference having been given to the more moderate defence of contributory negligence with its consequent apportionment of responsibility.' With one exception, 2 this has also proved to be the case in their dealing with a gratuitous passenger's rights against the drunken driver found to be grossly negligent under the motor vehicle legislation. a As a rule, the plea of volenti and that of contributory negligence go together, so that the defence of contributory negligence may succeed where volenti fails. The defences can cover the same field, so to speak. The essence of volenti is that the plaintiff has abrogated his legal rights.
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G. J. Skene, “Voluntary Assumption of Risk and the Gratuitous Passenger”, Comments, (1973-1974) 1:3 DLJ 605.