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Smith v Baker [1891] AC 325
Contributory negligence: knowledge by the plaintiff; "Volenti
non fit injuria" Facts
The plaintiff was employed by railway contractors to drill holes in
a rock cutting near a crane worked by men in the employ of the
contractors. The crane lifted stones and at times swung over the
plaintiff's head without warning. The plaintiff was fully aware of
the danger to which he was exposed by thus working near the crane
without any warning being given, and had been thus employed for
months. A stone having fallen from the crane and injured the
plaintiff, he sued his employers in the County Court under the
Employers Liability Act 1880.
The Decision
It was held by the House of Lords, reversing the decision of the
Court of Appeal (Lord Bramwell dissenting), that the mere fact that
the plaintiff undertook and continued in the employment with full
knowledge and understanding of the danger arising from the
systematic neglect to give warning did not preclude him from
recovering; that the evidence would justify a finding that the
plaintiff did not voluntarily undertake the risk of injury; that the
maxim "Volenti non fit injuria" did not apply; and that the action
was maintainable.
Note
The House of Lords decision in Smith v. Baker & Sons [1891]
was the first case in which the defence of "Volenti non fit injuria"
was limited in employee situations.
It is a question of fact in each case whether the knowledge of the
plaintiff in the particular circumstances made it so unreasonable
for him to do what he did as to constitute contributory negligence.
When a workman engaged in an employment not in itself dangerous is
exposed to danger arising from an operation in another department
over which he has no control - the danger being created or enhanced
by the negligence of the employer - the mere fact that he undertakes
or continues in such employment with full knowledge and
understanding of the danger is not conclusive to show that he has
undertaken the risk so as to make the maxim "Volenti non fit injuria"
applicable in case of injury. The question whether he has so
undertaken the risk is one of fact and not of law. And this so both
at common law and in cases arising under the Employers Liability Act
1880.
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