VOLENTI NON FIT INIURIA.

1891. SMITH v. BAKER AND SONS, L. R. 1891, A. C. 325.

One who has invited or assented to an act being done towards him, or who voluntarily enters upon a course of action involving a particular risk to himself, of which he is aware, cannot be heard to complain if he suffer thereby.

Volenti non fit iniuria.

APPEAL from a decision of the Court of Appeal.

1891.

SMITH

v.

SONS.

The appeal arose in an action brought by the appellant in the County Court of Yorkshire, held at Halifax, to recover damages BAKER AND against the respondents (who were railway contractors) for injuries sustained by him whilst in their employment. The appellant had been working for the respondents on the Halifax High Level Railway for some months prior to the day on which he received his injuries. The duties assigned to him when he first entered their employment were to fill skips or crates with stones, which were to be lifted by a steam-crane, in order to be put into wagons. He was next engaged in slinging stones on to the crane, and about two months before the accident he was set to work a hammer and drill with two other servants of the respondents, he working the drill whilst they worked the hammer. On the day of the accident he was sent with two others to drill a hole in the rock in a cutting. Whilst they were thus employed, stones were being lifted from the cutting, which was seventeen or eighteen feet deep. The crane was on the top of the cutting, near the edge. In slinging a stone a chain was put round it and a hook hitched into one of the links. To this chain the chain from the crane was fastened. When the stones were clear of the bank the arm of the crane was jibbed in the one or the other direction, according to the position of the wagons into which the stone was to be loaded. If it was jibbed in one direction it passed over the place where the appellant was working. Whilst he was working the drill, a stone in the course of being lifted fell upon him, and caused serious injuries. No warning was

1891.

SMITH

v.

BAKER AND

SONS.

given that the stone was to be jibbed in that direction. The
plaintiff in his evidence stated that the men were jibbing over
his head, that whenever he saw them he got out of the way, but
at the time that the stone fell upon him he was working the drill
and so did not see the stone above. One of his fellow workmen
had in the plaintiff's hearing previously complained to the ganger
of the danger of slinging stones over their heads, and the plain-
tiff himself had told the crane-driver that it was not safe. In
cross-examination the plaintiff stated that he was a navvy, and
accustomed to this particular work for six or seven years. He
had been at it long enough to know that the work was dangerous;
he had been at the same class of work in the same cutting when
they were jibbing overhead every day; he was doing that safely
for four or five months. Sometimes he could see the stones
being craned up above him; when he saw them he got out of the
way. At the close of the plaintiff's case the defendants' counsel
submitted that the plaintiff must be nonsuited on
his own
admission as to his knowledge of the risk, citing Thomas v.
Quartermaine'. The learned judge (Judge Snagge), however,
refused to nonsuit. The only witness called for the defendants
was Hanson, the ganger, who was superintending the work on the
day of the accident, and under whose orders the plaintiff was.
Hanson stated that they had put the sling-chain on to the stone
in the ordinary way, but no explanation was given or suggestion
made as to what was the cause of the disaster. He said the rule
at the works was that every one should look out for himself; it
was part of the plaintiff's employment to look out; the men
ought to have stopped work while the stone was being jibbed
round; that would be the safe way; he told the men to get out
of the way. After the defendants' case closed the learned judge
left several questions to the jury, which were answered by them
as follows:-
:-

1.-Q. Was the machinery for lifting the stone from the cutting, taken as a whole, reasonably fit for the purpose for which it was applied?-A. No.

2.-Q. Was the omission to supply special means of warning when the stones were being jibbed a defect in the ways, works, machinery and plant?-A. Yes.

1 1 L. R. 18 Q. B. D. 685.

3.-Q. If so, were the employers (or some person engaged by them to look after the condition of the works, &c.) guilty of negligence in not remedying that defect?-4. Yes.

4.-Q. Was the plaintiff guilty of contributory negligence?A. No.

5.-Q. Did the plaintiff voluntarily undertake a risky employment with a knowledge of its risks?—4. No.

6.-Q. Amount of damages (if any) ?—A. £100.

Application was made on behalf of the defendants to have judgement entered for them, notwithstanding the findings of the jury, on the ground that the case ought not to have been allowed to go to them, the plaintiff having admitted that he knew of the risk and voluntarily incurred it. The learned judge directed judgement to be entered for the plaintiff for £100, the amount of damage assessed by the jury. Notice of a motion to set aside the judgement and to have judgement entered for the defendants was afterwards given in the Queen's Bench Division. The grounds stated in that notice, so far as are now material, were as follows:-

'That the case ought not to have been allowed by the judge to go to the jury, the plaintiff having admitted that he knew of the risk which caused his injury, and voluntarily incurred it.

'That on the plaintiff's own admissions, made on the trial of the action, a nonsuit ought to have been entered by the judge.

'That the entry of the said judgement for the plaintiff was and is bad in law, and that the judge ought not to have entered judgement for the plaintiff.'

The Divisional Court (Huddleston, B., and Wills, J.), before whom the appeal came, thinking that there was a conflict between the decisions of the Court of Appeal in the cases of Yarmouth v. France1 and Thomas v. Quartermaine 2, which they were unable to reconcile, and which it was desirable that the Court of Appeal should explain, dismissed the appeal, at the same time granting leave to appeal.

The Court of Appeal (Lord Coleridge, C. J., Lindley and Lopes L. JJ.), reversed the judgement of the Court below and entered judgement for the defendants, mainly, or it may be said exclusively, on the ground that there was no evidence of negligence on the part of the defendants, although the Lord Chief Justice 1 L. R. 19 Q. B. D. 647. 2 L. R. 18 Q. B. D. 685.

1891.

SMITH

v.

BAKER AND

SONS.

1891.

SMITH

V.

BAKER AND

SONS.

expressed an opinion that the judgement of the County Court judge ought to be set aside on another ground also; namely, that the plaintiff had been engaged to perform a dangerous operation and took the risk of the operation he was so called upon to perform.

LORD HALSBURY, L. C.-My Lords, the objection raised, and the only objection raised, to the plaintiff's right to recover was that he had voluntarily undertaken the risk. That is the question, and the only question, which any of the courts, except the County Court itself, had jurisdiction to deal with. Now, the facts upon which that question depends are given by the plaintiff himself in his evidence. Speaking of the operation of slinging the stones over the heads of the workmen, he said himself that it was not safe, and that whenever he had sufficient warning, or saw it, he got out of the way. The ganger told the workmen employed to get out of the way of the stones which were being slung. The plaintiff said he had been long enough at the work to know that it was dangerous, and another fellow workman in his hearing complained that it was a dangerous practice.

My lords, giving full effect to these admissions, upon which the whole case for the defendants depends, it appears to me that the utmost that they prove is that in the course of the work it did occasionally happen that stones were slung in this fashion over workmen's heads, that the plaintiff knew this, and believed it to be dangerous, and whenever he could he got out of the way. The question of law that seems to be in debate is whether upon these facts, and on an occasion when the very form of his employment prevented him looking out for himself, he consented to undergo this particular risk, and so disentitled himself to recover when a stone was negligently slung over his head or negligently permitted to fall on him and do him injury.

My lords, I am of opinion that the application of the maxim Folenti non fit iniuria is not warranted by these facts. I do not think the plaintiff did consent at all. His attention was fixed upon a drill, and while, therefore, he was unable to take precautions himself, a stone was negligently slung over his head without due precautions against its being permitted to fall. My lords, I emphasize the word 'negligently' here, because, with

all respect, some of the judgements below appear to me to alternate between the question whether the plaintiff consented to the risk, and the question of whether there was any evidence of negligence to go to the jury, without definitely relying on either proposition.

1891.

SMITH

v.

BAKER AND
SONS.

Lord

L. C.

Now, I say that here evidence of negligence must by the form of procedure below be admitted to have been given, and the sole Halsbury, question to be dealt with is that with which I am now dealing. For my own part, I think that a person who relies on the maxim must show a consent to the particular thing done. Of course, I do not mean to deny that a consent to the particular thing may be inferred from the course of conduct, as well as proved by express consent; but if I were to apply my proposition to the particular facts of this case, I do not believe that the plaintiff ever did or would have consented to the particular act done under the particular circumstances. He would have said, 'I cannot look out for myself at present. You are employing me in a form of employment in which I have not the ordinary means of looking out for myself; I must attend to my drill. If you will not give me warning when the stone is going to be slung, at all events let me look out for myself, and do not place me under a crane which is lifting heavy stones over my head when you keep my attention fixed upon an operation which prevents me looking out for myself.'

It appears to me that the proposition upon which the defendants must rely must be a far wider one than is involved in the maxim, Volenti non fit iniuria. I think they must go to the extent of saying that wherever a person knows there is a risk of injury to himself, he debars himself from any right of complaint if an injury should happen to him in doing anything which involves that risk. For this purpose, and in order to test this proposition, we have nothing to do with the relation of employer and employed. The maxim in its application in the law is not so limited; but where it applies, it applies equally to a stranger as to any one else; and if applicable to the extent that is now insisted on, no person ever ought to have been awarded damages for being run over in London streets; for no one (at all events some years ago, before the admirable police regulations of later years) could have crossed London streets without knowing that there was a risk of being run over.

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