DR.

RAM MNOHAR LOHIYA NATIONAL LAW UNIVERSITY

PROJECT OF LAW OF TORTS

TOPIC-CASE ANALYSIS

SUBMITTED TO BY PROF. L.N. ABHIJITANAND PROF. OF LAW

SUBMITTED MATHUR ROLLNO.04 SEMESTERIst

CONTENTS

1-HEADING

2-NAME OF PARTIES

3-BENCH

4-DATE OF JUDGMENT

5-FACTS

6-ISSUES

7-JUDGMENT

8-MAJORITY OPINION

9-MINORITY OPINION

10-CONCURRING OPINION

11-COMMENTS

SMITH V BAKERS & SONS 1891 AC 325

1-PARTIES-:

APPELLANT- SMITH

RESPONDENT- BAKETS & SONS

2-COURT NAME- HOUSE OF LORDS

3-PAGE NO.-325

BENCH
There were 5 judges in this bench namelyLORD HALSBURY, LORD BRAMWELL, LORD WATSON, LORD HERSCHELL, LORD MORRIS

DATE OF JUDGMENT

JULY, 21 1891

FACTS
Appeal was brought by the plaintiff on the action from a decision of Appeal (LORD COLERIDGE, C.J. LINDERLEY & LOPES, L.JJ)reversing the decision of the Queens Bench Division (HUDDLESTON,

B., & WILLS, J.), affirming the decision of the learned judge of Halifax
Country Court. The action was brought by the appellant in the court by the appellant, a navvy, to recover the damages against the respondents, who were railway contractors, for injuries sustained by him while in their employment. The appellant has been engaged on the respondents works for some months prior to the day on which he received his injuries. The duty assigned to him was to work a hammer and drill with two other servants of the respondents, he working the drill and the other two were working hammer. On the day of the accidents he was sent with two other to drill a hole. While they were thus employed, stones were being lifted from a cutting, which was seventeen or eighteen feet deep. 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 waggons into which the stones was to be loaded. If it was jibbed in one direction, it was passed over the place where the appellant was working. While he was working the drill, a stone in the course of being lifted fell upon him and caused him serious injuries.

ISSUES

There were three issues which were raised during the proceedings.

(i)- RISK OF INJURIES VOLUNTARY TAKEN BY THE APPELLANT. (ii)-APPLICATION OF VOLENTI NON FIT INJURIA. (iii)-THE LIABILITY OF THE EMPLOYER.

(i)- Risk of injuries voluntary taken by the appellant:The appellant was aware of the risks involved in the job, yet he engaged himself in that job. The appellant had undertaken to do work which was intrinsically dangerous notwithstanding that reasonable care has been taken to render it as little dangerous as possible he voluntarily subjects himself to the risks inevitably accompanying it, and , if he suffers, the doctrine of volenti non fit injuria is open to his employers in defence to any claim made by him. But here the risk was taken to a reasonable limit i.e. the appellants expectation was certain that he can secure injuries but to a limited extent. The injuries he suffered during work were beyond his expectations and foreseeability.

(ii)-Application of volenti non fit injuria:-

The doctrine of volenti non fit injuria had no application to harm sustained by a workman from the negligene of his employers in not warning him of the moment of a recurring danger, although the man knew the risk of injury and when did the injury recur. But where the risk to the employee has been enhanced or created by the negligence of the employer in not providing a safe system of work the mere continuance by the employee in his service with knowledge of the risk does not preclude the employee, it he suffers from such negligence, from recovering in respect of the employers breach of duty. Whatever the dangers of the employment which the employee undertakes , among them is not to be numbered the risk of the employers negligence and the creation or enhancement of the danger thereby engendered, unless the employee specially agrees to take that risk.

(iii)-THE LIABILITY OF EMPLOYER:-

At common law a master who employees the servant in work of a dangerous character is bound to take all reasonable precautions for the workmans safety. The employer's duty to his employees is commonly dealt with under four headings, the provision:-

(a) competent staff; (b) a safe place of work; (c) proper plant and equipment; and (d) a safe system of work.

These are simply aspects of the broader duty to see that reasonable care for the safety of employees is taken.

COMPETENT STAFF The employer has an obligation to select competent fellow employees, and a correlative duty to give them proper instruction in the use of equipment SAFE PLACE OF WORK An employer must take such steps as are reasonable to see that the premises are safe. Although this was not mentioned by Lord Wright in Wilson & Clyde Coal (above), it has been accepted by the courts, eg Lord Greene MR in:

ADEQUATE PLANT AND EQUIPMENT An employer has a 'duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition' (per Lord Herschell, Smith v Baker [1891] AC 325, 362). If necessary equipment is unavailable and this leads to an accident he will be liable, although he is not necessarily bound to adopt the latest improvements and equipment (Toronto Power Co v Paskwan [1915] AC 734). If the employee would not have used the safety equipment if it had been supplied the employer's breach of duty is not the cause of injury (McWilliams v Sir William Arrol & Co [1962] 1 All ER 623). Section 1(1) of the Employers' Liability (Defective Equipment) Act 1969 (which reversed the decision of the House of Lords in Davie v New Merton Board Mills [1959] AC 604) makes an employer liable if an employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by the employer, and the defect is attributable wholly or partly to the fault of a third party, whether identifiable or not. An employer will not be liable if a worker fails to make proper use of the equipment supplied, nor where the employee acted foolishly in choosing the wrong tool for the job, assuming that, where necessary, the employee has been given adequate instruction in the use of the equipment. avidson v Handley [1945] 1 All ER 235, 236

SAFE SYSTEM OF WORKING It is a question of fact whether a particular operation requires a system of work in the interests of safety, or whether it can reasonably be left to the employee charged with the task. It is usually applied to work of a regular type where the proper exercise of managerial control would specify the method of working, give instruction on safety and encourage the use of safety devices.

But the master was not able to reasonable care of all above mentioned duties.

*CRITICISM:- According to me the master was liable for the injuries faced by
him during his work because the plaintiff was responsible for in his voluntary action to a reasonable extent. Beyond this master was responsible for taking reasonable care regarding to the machinery. The master was bound to see that his machinery and work both were free from defect. The danger was created or enhanced by the negligence of the employer - the mere fact that he undertaken or continued 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.

JUDGMENT
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.

MAJORITY JUDGMENT
The majority opinion was given by-

LORD HALSBURY,L.C.,LORD WATSON, LORD HERSCHELL, LORD MORRIS. ACCORDING TO LORD HALSBURY:-

In this case, as I have pointed out, there was no warning and no signal, but the employer or his representative employed the plaintiff under such conditions as disabled him from using his eyes for protecting himself against the risk. It seems to me, therefore, your Lordships that the judgment of the Court of Appeal be reversed, and the judgment of the country court judge restored.

ACCORDING TO LORD WATSON:This case is under the statute of the 1880, and, as already indicated, I am of opinion that the mere fact of the plaintiff having continued in the employment of the defendants cannot defeat his statutory claim. I, therefore, concur with the majority of your lordships in thinking that the order of the court of appeal must be reversed, and the judgment of the country court restored.

MINORITY JUDGMENT

The minority judgment was given by LORD BRAMWELL.

This case is wholly different from Clarkson v. Musgrave, where the objection was in the court of appeal was a holly different from that in the country court, and did not, as it were, arise out of it as here. Here the defendants say that there is no evidence of wrong in us. The plaintiff knew the extent of danger and undertook it at his on risk with full knowledge. Whether taken or not, it should be open to the defendants. Error is caput lupnium. Up to last moment if there was irremediable error, it may be objected to. That was here. On this ground, also the defendants should succeed. Something ought to be done; a new trial granted, if necessary, to prevent the defendants being made liable to pay damages which, in the opinion of many judges, there was no ground for claiming against them, and which never have been

claimed but in the hope of an unjust verdict from a jury. It is plain case for the defendants, but I know your Lordships think otherwise. I am of opinion that judgment should be affirmed.

CONCURRING OPINION