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RAM MNOHAR LOHIYA NATIONAL LAW UNIVERSITY
PROJECT OF LAW OF TORTS
N. OF LAW SUBMITTED MATHUR ROLLNO.04 SEMESTERIst CONTENTS 1-HEADING 2-NAME OF PARTIES 3-BENCH 4-DATE OF JUDGMENT . ABHIJITANAND PROF.SUBMITTED TO BY PROF. L.
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 .
LORD HERSCHELL. L.JJ)reversing the decision of the Queen’s Bench Division (HUDDLESTON.-325 BENCH There were 5 judges in this bench namelyLORD HALSBURY. C. LORD WATSON.J. RESPONDENT.HOUSE OF LORDS 3-PAGE NO. 21 1891 FACTS Appeal was brought by the plaintiff on the action from a decision of Appeal (LORD COLERIDGE. LORD BRAMWELL. LINDERLEY & LOPES. .BAKETS & SONS 2-COURT NAME. LORD MORRIS DATE OF JUDGMENT JULY.
the arm of the crane was jibbed in the one or the other direction. While they were thus employed. While he was working the drill. (ii)-APPLICATION OF VOLENTI NON FIT INJURIA.. On the day of the accidents he was sent with two other to drill a hole.RISK OF INJURIES VOLUNTARY TAKEN BY THE APPELLANT. If it was jibbed in one direction. a stone in the course of being lifted fell upon him and caused him serious injuries. to recover the damages against the respondents. When the stones were clear of the bank. ISSUES There were three issues which were raised during the proceedings. (i). (iii)-THE LIABILITY OF THE EMPLOYER. .B. according to the position of the waggons into which the stones was to be loaded. who were railway contractors. he working the drill and the other two were working hammer. a navvy. The action was brought by the appellant in the court by the appellant. The appellant has been engaged on the respondent’s works for some months prior to the day on which he received his injuries. for injuries sustained by him while in their employment. & WILLS. The duty assigned to him was to work a hammer and drill with two other servants of the respondents. stones were being lifted from a cutting. affirming the decision of the learned judge of Halifax Country Court. J. it was passed over the place where the appellant was working.). which was seventeen or eighteen feet deep.
yet he engaged himself in that job. if he suffers. Whatever the dangers of the employment which the employee undertakes . The injuries he suffered during work were beyond his expectations and foreseeability. But here the risk was taken to a reasonable limit i.e. 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. although the man knew the risk of injury and when did the injury recur. among them is not to be numbered the risk of the employer’s negligence and the creation or enhancement of the danger thereby engendered. the doctrine of volenti non fit injuria is open to his employers in defence to any claim made by him.Risk of injuries voluntary taken by the appellant:The appellant was aware of the risks involved in the job. (iii)-THE LIABILITY OF EMPLOYER:- . 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.(i). the appellant’s expectation was certain that he can secure injuries but to a limited extent. and . it he suffers from such negligence. unless the employee specially agrees to take that risk. from recovering in respect of the employer’s breach of duty. (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 this was not mentioned by Lord Wright in Wilson & Clyde Coal (above). it has been accepted by the courts. The employer's duty to his employees is commonly dealt with under four headings. eg Lord Greene MR in: . COMPETENT STAFF The employer has an obligation to select competent fellow employees. These are simply aspects of the broader duty to see that reasonable care for the safety of employees is taken. the provision:- (a) competent staff. and (d) a safe system of work. (b) a safe place of work.At common law a master who employees the servant in work of a dangerous character is bound to take all reasonable precautions for the workman’s safety. 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. (c) proper plant and equipment.
ADEQUATE PLANT AND EQUIPMENT An employer has a 'duty of taking reasonable care to provide proper appliances. 362). An employer will not be liable if a worker fails to make proper use of the equipment supplied. Smith v Baker  AC 325. 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  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. the employee has been given adequate instruction in the use of the equipment. nor where the employee acted foolishly in choosing the wrong tool for the job. 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. avidson v Handley  1 All ER 235. give instruction on safety and encourage the use of safety devices. although he is not necessarily bound to adopt the latest improvements and equipment (Toronto Power Co v Paskwan  AC 734). It is usually applied to work of a regular type where the proper exercise of managerial control would specify the method of working. and to maintain them in a proper condition' (per Lord Herschell. If necessary equipment is unavailable and this leads to an accident he will be liable. . where necessary. 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  1 All ER 623). or whether it can reasonably be left to the employee charged with the task. But the master was not able to reasonable care of all above mentioned duties. whether identifiable or not. and the defect is attributable wholly or partly to the fault of a third party. assuming that.
that the evidence would justify a finding that the plaintiff did not voluntarily undertake the risk of injury.. LORD MORRIS.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.C. Beyond this master was responsible for taking reasonable care regarding to the machinery. that the maxim "Volenti non fit injuria" did not apply. MAJORITY JUDGMENT The majority opinion was given by- LORD HALSBURY. JUDGMENT It was held by the House of Lords. The master was bound to see that his machinery and work both were free from defect.LORD WATSON. reversing the decision of the Court of Appeal (Lord Bramwell dissenting).*CRITICISM:. Baker & Sons  was the first case in which the defence of "Volenti non fit injuria" was limited in employee situations. and that the action was maintainable.L. ACCORDING TO LORD HALSBURY:- . NOTE The House of Lords decision in Smith v. LORD HERSCHELL.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. 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. The danger was created or enhanced by the negligence of the employer .
it should be open to the defendants. I. On this ground. It seems to me. and. as it were. Here the defendants say that there is no evidence of wrong in us. there was no warning and no signal. in the opinion of many judges. and the judgment of the country court restored. a new trial granted. Musgrave. and the judgment of the country court judge restored. This case is wholly different from Clarkson v.In this case. Whether taken or not. and did not. it may be objected to. where the objection was in the court of appeal was a holly different from that in the country court. arise out of it as here. therefore. concur with the majority of your lordships in thinking that the order of the court of appeal must be reversed. MINORITY JUDGMENT The minority judgment was given by LORD BRAMWELL. The plaintiff knew the extent of danger and undertook it at his on risk with full knowledge. 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. your Lordships that the judgment of the Court of Appeal be reversed. therefore. Up to last moment if there was irremediable error. as already indicated. Error is caput lupnium. as I have pointed out. also the defendants should succeed. if necessary. and which never have been . ACCORDING TO LORD WATSON:This case is under the statute of the 1880. I am of opinion that the mere fact of the plaintiff having continued in the employment of the defendants cannot defeat his statutory claim. there was no ground for claiming against them. to prevent the defendants being made liable to pay damages which. That was here. Something ought to be done.
I am of opinion that judgment should be affirmed. but I know your Lordships think otherwise.claimed but in the hope of an unjust verdict from a jury. CONCURRING OPINION . It is plain case for the defendants.