DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW
2011-12




FINAL PROJECT

STUDY OF BASICS OF CASE LAW

SMITH V. CHARLES BAKER & SONS







Submitted to:- Submitted by:-
Mr.SHASHANK SHEKHAR GAURAV KRISHNA
Asst.Professor (case law) Roll no.61
Semester-I
ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude
to my teacherMr.SHASHANK SHEKHARwho gave
me the golden opportunity to do this wonderful
project on the topic-CASE BRIEFE ON CASE-
SMITH V. CHARLES BAKER & SONS, which also
helped me in doing a lot of Research and i came to
know about so many new things,I am really thankful
tohim.
Secondly i would also like to thank my seniors and
friends who helped me a lot in finishing this project
within the limited time.










CONTENTS

Introduction
case briefing
Statement of facts
Procedural history
Issues
Judgment
Representation
Order of the court
Conclusion










INTRODUCTION

Its chief purpose is to give guidance to the reader on how to
read a case in order to identify, extract, and where necessary
apply its ratio decidendi. All those training for the Bar have in
theory read many cases at the academic stage, and do have
learned to do this. But you may not ever have given much
comprehensive thought to the process of reading a case or to
identifying exactly what the ratio of it is. Also anecdotal
evidence suggests that there are some who have got by to a
very large extent using case books, which contain only digests
of cases, or simply by reading the headnote of a case, which
contains a short statement of what the reporter considers to be
its ratio, but which may or may not be accurate, particularly
after the case has been interpreted by a court in a later case.




SMITH v. CHARLES BAKER & SONS
1
CASE NO.:-

BAILII
Citation Number: [1891] UKHL 2
APPELLANT:-

JOSEPH SMITH (PAUPER)
RESPONDRNT:-

CHARLES BAKER & SONS


DATE OF JUDGMENT:-

21 JULY 1981

BENCH:-
Lord Halsbury L.C
Lord Bramwell
Lord Watson
Lord Herschell
Lord Morris

FACT:-

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.
ISSUE:-

1.Defence of "Volenti non fit injuria" was limited in employee
situations.
2. 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.

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.
According to LORD HALSBURY LC:-
That in order to defeat a plaintiff's right by the application of
the maxim relied on,who would otherwise be entitled to
recover, the jury ought to be able to affirm that he consented
to theparticular thing being donewhich would involve the risk,
and consented to take the risk upon himself. It ismanifest that if
the proposition which I have just enunciated be applied to this
case, the maxim could herehave no application. So far from
consenting, the plaintiff did not even know of the particular
operation thatwas being performed over his head until the
injury happened to him, and consent, therefore, was out ofthe
question.As I have intimated before, I do not deny that a
particular consent may be inferred from a general courseof
conduct. Every sailor who mounts the rigging of a ship knows
and appreciates the risk he isencountering. The act is his own,
and he cannot be said not to consent to the thing which he
himself isdoing. And examples might be indefinitely multiplied
where the essential cause of the risk is the act of
thecomplaining plaintiff himself, and where, therefore, the
application of the maxim, Volenti non fit injuria, iscompletely
justified. treated the question apart from the specific findings
by the jury. But I am not disposed tothink that those findings
were not justified upon the evidence presented. They found
that the machineryfor lifting the stone from the cutting was not
reasonably fit for the purpose for which it was applied, taken as
a hole. I think the jury meantand if they did so mean, I am of
opinion that they were rightthat,looking to the risk incurred
by the men working below and to the possibility of the crane
when worked letting stones fall, the machinery was not
reasonably fit for the purpose for which itwas applied, that is to
say, not reasonably fit for securing that stones should not fall
from it when slungover men's heads. And further, that if with
such machinery the stones were being slung over men's
heads,special warning ought to have been supplied to the men
imperilled by such an operation, and that theemployers were
guilty of negligence in not remedyingsucha mode of working
such machinery undersuch conditions of work. negligent mode
of using perfectly sound machinery may make the employer
liable quite apart from any ofthe provisions of the Employers'
Liability Act. In Sword v. C ameronit could hardly be doubted
that thequarryman who was injured by the explosion of the
blast in the quarry was perfectly aware of the risk; but
nevertheless he was held entitled to recover notwithstanding
that knowledge.
It seems to me that in the present case the right of the plaintiff
to recover is far more clear than in Swordv. C ameron. The
interval given to the quarryman to seek shelter was the usual
and ordinary one. But suppose in that case the employer had
employed the quarryman to do something which by the very
formof the employment prevented his hearing the signal which
gave him warning to retreat? In this case, as I
have pointed out, there was no warning and no signal, but the
employer or his representative employedthe plaintiff under
such circumstances as disabled him from using his eyes for
protecting himself againstthe risk.
It seems to me, therefore, that this is a case in which the
plaintiff is entitled to recover, and I thereforemoveyour
Lordships that the judgment of the C ourt of Appeal be
reversed, and the judgment of thecounty court judge restored.

According to LORD WATSON

In the present case no objection was made at the trial on the
part of the respondents that there was no evidence upon which
the jury could find there was negligence on their part;
nay, more, in the notice of motion, by way of appeal, in the
Queen's Bench Division, no objection was
taken that there was no evidence of negligence. The question
of law raised at the trial, both at the close of the plaintiff's case
in asking for a non-suit, and at the close of the entire case in
asking for judgment, was, that the plaintiff having admitted
that he knew the risk and voluntarily incurred it, the defendants
were entitled to succeed. No question of law was raised as to
there being no evidence to go to the jury to establish the
defendants' negligence.
The Court of Appeal decided the case upon a question of law
not taken at the trial. I can find no reference in any of the
judgments in the C ourt of Appeal as to their competency to
entertain and decide upon a point not made at the trial, nor
does the case of C larkson v. Musgrave appear to have been
cited. It is an express decision, and one in which I entirely
concur, that it is a condition precedent to the right of appeal
that the question of law upon which it is desired to appeal
should have been raised before the county court judge at the
trial. If the point, that there was no evidence of negligence, had
been made by the defendants at the trial, I am of opinion they
would be now entitled to judgment; but, in my opinion,that
point is not now open, and the case must be dealt with,
assuming the findings of the jury as to the negligence of the
defendants
He worked for months, knowing there was no special warner to
caution him, but running his chance of
getting out of the way, when the crane would otherwise pass
over his head. He was, in my opinion, both sciens and volens as
to all the danger except that arising from unfit machinery. Of
that danger he was not aware. I more than doubt it existed at
all; but the right of appeal is a statutable one: the respondents
have not brought themselves within the statute, in not
objecting at the trial to the want of any evidence to support
the first finding; while it stands, the maxim, Volenti non fit
injuria,appears inapplicable. How can the plaintiff be held to
voluntarily incur a danger from unfit machinery, the unfitness
of which he was admittedly not aware of? The case of Thomas
v. Quartermainefor the same reason is no authority for the
respondents' contention.
In result, I am of opinion that the appellant is entitled to
succeed on the course the case has taken, and with the limited
right of review accorded to the Divisional C ourt, to the C ourt
of Appeal, or to your Lordships' House.

According to LORD BRAMWELL:

There was no evidence of negligence in the defendants causing
the accident. There certainly was none; but it is said this was
not open to the defendants. Lindley L.J. gives judgment
the same way; his judgment is of extra importance, because it
shews that Yarmouth v. France , relied on for the plaintiff, is
not, in the opinion of Lindley L.J. who was party to it, against
the defendants. His Lordship says: -If people will enter into
dangerous employment, they do so without making other
people liable for injuries they sustain.I cite also his Lordship's
opinion to justify my own, that the jury were led
away by sympathy, for they found matters that were not in the
least warranted by the evidence. I think there was no evidence
of negligence at all. Lopes L.J. says the same. This case is
clearly within the decisions that have been pronounced in the
C ourt below, and in this C ourt, in which it has been held, and I
think most properly held, that a person who is engaged to
perform a dangerous operation takes the risk of the operation
of the work that he is called on to perform. As to that, there
never was any doubt before the Employers' Liability Act, nor
since.I think that is a very neat and forcible way of putting it. He
gives judgment for the defendants also on another ground, viz.,
that there was no evidence of negligence in the defendants
causing the accident. There certainly was none; but it is said
this was not open to the defendants. Lindley L.J. gives judgment
the same way; his judgment is of extra importance, because it
shews that Yarmouth v. France , relied on for the plaintiff, is
not, in the opinion of Lindley L.J. who was party to it, against
the defendants. His Lordship says: If people will enter into
dangerous employment, they do so without making other
people liable for injuries they sustain.I cite also his Lordship's
opinion to justify my own, that the jury were led
away by sympathy, for they found matters that were not in the
least warranted by the evidence. I thinkthere was no evidence
of negligence at all.Lopes L.J. says the same. This case is clearly
within the decisions that have been pronounced in the
C ourt below, and in this C ourt, in which it has been held, and I
think most properly held, that a person who is engaged to
perform a dangerous operation takes the risk of the operation
of the work that he is called on to perform. As to that, there
never was any doubt before the Employers' Liability Act, nor
since.he think that is a very neat and forcible way of putting it.
He gives judgment for the defendants also on another ground,
viz., that there was no evidence of negligence in the defendants
causing the accident. people will enter into dangerous
employment, they do so without making other people
liable for injuries they sustain.I cite also his Lordship's opinion
to justify my own, that the jury were led away by sympathy, for
they found matters that were not in the least warranted by the
evidence. I think there was no evidence of negligence at all.





According to LORD MORRIS :-

The respondents in not supplying means of warning when the
stones were being jibbed, do not avail thenplaintiff. He
undertook a dangerous work of drilling holes, while over his
head (unless he moved away) stones were being hauled by a
crane. That work he entered upon knowing it was dangerous to
that extent.
He worked for months, knowing there was no special warner to
caution him, but running his chance of getting out of the way,
when the crane would otherwise pass over his head. He was, in
my opinion, both
sciens and volens as to all the danger except that arising from
unfit machinery. Of that danger he was not aware. I more than
doubt it existed at all; but the right of appeal is a statutable
one: the respondents have not brought themselves within the
statute, in not objecting at the trial to the want of any evidence
to support the first finding; while it stands, the maxim, Volenti
non fit injuria, appears inapplicable. How can the plaintiff be
held to voluntarily incur a danger from unfit machinery, the
unfitness of which he was admittedly not aware of?
In result, I am of opinion that the appellant is entitled to
succeed on the course the case has taken, and with the limited
right of review accorded to the Divisional C ourt, to the C ourt
of Appeal.




REPRESENTATIONS

Solicitors for appellant:- J. H. BridgfordforLongbottom& Sons,
Halifax.
Solicitors for respondents:- Watson, Sons & Room for Neill &
Broadbent, Bradford.

ORDER OF COURT:-

Order of the Court of Appeal reversed and order of the Queen's
Bench Division restored: the respondents to pay to the
appellant the costs in the Court of Appeal and the costs
incurred by him in respect of his appeal to this House, the costs
in this House to be taxed in the manner usual when the
appellant sues in form pauperis: cause remitted to the Queen's
Bench Division. Lords' Journals 21st July 1891.












CONCLUSIONS:-

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