Wheeler v New Merton Board Mills Ltd [1933] 2 KB 669
Employer liability for a personal injury arising from the employer’s breach of a statutory duty and defence of volenti non fit injuria.
Facts
An eighteen-year-old workman was working at a machine for cutting cardboard with revolving sharp knives and, whilst collecting the shavings, the machine cut off his fingers and hand. The machine was a dangerous machine that should have been fenced and/or guarded pursuant to the Factory Workshop Act 1901, and the employer was in breach of his obligation to do so. It was submitted that the employee was aware that the machine could have been stopped by a lever whilst he was collecting the shavings, yet never did so.
Issue
The question arose as to whether, in the presence of a breach of a statutory duty by the employer, the doctrine of volenti non fit injuria, namely that the employee knowingly took the risk, was a defence to the employer’s liability for the injury caused by the dangerous machine.
Held
The Court held that the doctrine of volenti non fit injuria was not a defence to a personal injury claim against an employer arising from the breach of a statutory duty on the part of the employer. The Court of Appeal held that it was bound by previous, binding authorities that have refused to permit volenti non fit injuria in respect of an employer’s breach of a duty imposed by statute. On the facts of the case, the employer was in breach of a term of the Factory Workshop Act 1901 in leaving the dangerous machine without a fence and unguarded, and the employer’s knowledge of the danger was not a defence to the employer’s liability in respect of this breach. Thus, the employer’s liability for the injury was upheld.
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Updated 20 March 2026
This article accurately summarises the decision in Wheeler v New Merton Board Mills Ltd [1933] 2 KB 669 and correctly states the legal principle established by the Court of Appeal, namely that volenti non fit injuria is not available as a defence to an employer where liability arises from a breach of statutory duty.
That principle remains good law. The unavailability of volenti as a defence to a claim for breach of statutory duty in the employment context has been consistently affirmed in subsequent case law and is well established in English tort law. Readers should note, however, that the specific statutory provisions at issue in this case — the Factory and Workshop Act 1901 — have long since been repealed and replaced. The regulation of workplace machinery and guarding is now governed primarily by the Provision and Use of Work Equipment Regulations 1998 (PUWER) and the Health and Safety at Work etc. Act 1974, among other instruments.
Additionally, readers should be aware of a significant development affecting breach of statutory duty claims more broadly: the Enterprise and Regulatory Reform Act 2013 (s.69) removed the right of employees to bring civil claims for breach of health and safety regulations (where the regulations themselves did not expressly provide for civil liability). As a result, many claims that previously proceeded as breach of statutory duty must now be framed in negligence instead. This does not affect the underlying principle in Wheeler regarding volenti, but it does limit the practical contexts in which that principle will now be applied in a civil breach of statutory duty action.
