SMITH V. CHARLES BAKER & SONS (1891)
CASE TITLE : Smith v Charles Baker and Sons (1891)
CITATION : [1891 ]UKHL 2
PLAINTIFF : Mr. Smith
DEFENDANT : Charles Baker and Sons
BENCH : Lord Halsbury L.C ,Lord Bramwell,Lord Watson
FACTS
In this case, the plaintiff was a worker hired by the defendant to operate a drill for the purpose of cutting rock. Stones were transformed from one side to the other using a crane and each time the stones were conveyed, the crane passed over the plaintiff’s head. A stone fell from the crane and injured him while he was working. He got serious injuries. Although the plaintiff was generally aware of the risk, the employers were negligent in as much as they failed to warn him at the time of the incident (i.e.., the moment when the crane started to pass through).One of his fellow employees had previously raised concerns with the manager about the danger of slinging stones over their heads. He sued his employers for negligence. The jury in the county court ruled in the 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.
ISSUES
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?
ARGUMENTS
Plaintiff
Mr. Smith argued that every time when he saw the crane swing over his head, he would get out of the way and avoid standing under the crane. He complained about the crane being dangerous. On the particular day when the incident happened, he was drilling the ground and he didn’t notice the crane was above his head until the stone fell on him. There was no warning given to him when he was working.
Defendant
Charles Bakers and sons argued that everyone was aware that the construction site is a dangerous place and Mr. Smith had already mentioned that he knew the risk involved. Yet, he was willing to take the risk. Hence, there was no evidence of negligence on the part of the defendants. The defendant relied on the application of the maxim volenti non fit injuria.
JUDGEMENT
The decision of the House of Lords
The plaintiff had not deliberately undertaken the risk. As a result, the mere knowledge or simple understanding of the probability of risk without the assumption of it, does not attract the the maxim ‘volenti non fit injuria’. It must be demonstrated that the plaintiff agreed or comprehended that the risk should be borne by him.
The Court further held that a master is not liable to his servant for injuries caused by any ordinary risk of or incidental to the service. However, the master is required to take all the reasonable care to ensure the safety of his workers and to carry out his activities in such a way that he does not expose those who work for him to any unnecessary risk. Similarly, negligent or careless use of perfectly safe machinery may hold the employer accountable. If, though, the employer fails in his obligation to the employee, and the employee does not directly refuse to continue his service, it may not be assumed that he is willing to bear the risk, if any, emanating from the employment.
In the instant case, there was a negligent practice of swinging stones over the workmen’s heads with the help of a crane, thus exposing them to unnecessary danger. Therefore, the plaintiff was entitled to recover damages.
AUTHOR’S ANALYSIS
From the above case and its judgement, it shows that the consent cannot be inferred from knowledge of the risk, it must also be demonstrated that the plaintiff accepted the risk freely and voluntarily. To prove the defence, the defendant must show that the plaintiff not only had full knowledge of the risk but also willingly consented to take it. Therefore, an employee who continued to work despite knowing he was at risk of being injured by the stones falling from the crane cannot be said to accept the risk. Hence, the defence of consent shall not be applicable here.
WRITTEN BY SUKSHA
2ND YEAR, B.A. LLB
LLYOD LAW COLLEGE
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