The Gazette 1967/71

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