Published: Wed, 07 Mar 2018
Smith v Baker & Sons
 AC 325; 55 JP 660; 60 LJQB 683; 40 WR 392;
[1891-4] All ER Rep 69; 65 LT 467; 7 TLR 679
NEGLIGENCE, EMPLOYER’S LIABILITY, DEFENCE AGAINST NEGLIGENCE CLAIMS, VOLENTI NON FIT INJURIA, ACCEPTANCE OF RISK, EFFECT OF KNOWLEDGE OF EMPLOYEE, ACCIDENT AT WORK
The plaintiff was employed by a railway company to drill holes in a rock, near a crane, operated by men employed by the railway company. The crane lifted stones and at times swung them over the plaintiff’s head without warning. The plaintiff was fully aware of the danger he was exposed to by working near the crane. One time, a stone fell off the crane and injured the plaintiff. He sued his employers for negligence under the now repealed Employers’ Liability Act 1880. The jury in the county court ruled in favour of the plaintiff. The defendants appealed to the Court of Appeal which reversed the decision of the county court. The plaintiff appealed to the House of Lords.
Is the defence of volenti non fit injuria applicable to cases where an employee whose occupation is not in itself dangerous suffers injury from an activity carried out in another department of which he is fully aware but nevertheless continues to work?
The appeal was allowed.
(1) The mere fact that the plaintiff undertook or continued employment with the full knowledge that there is danger arising out of another activity in the workplace, is not enough to show that maxim volenti non fit injuria is applicable.
(2) The question of whether the plaintiff has undertaken such a risk is a one of fact, not of law. The evidence in the present case shows that the plaintiff did not voluntarily undertook the risk of injury. This is so in common law and in cases arising under the Employers’ Liability Act 1880.
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