8/3/2019 case ale

1/12

DR.RAM MNOHAR LOHIYA NATIONAL

LAW UNIVERSITY

PROJECT OF LAW OF TORTS

TOPIC-CASE ANALYSIS

8/3/2019 case ale

2/12

SUBMITTED TO SUBMITTED

BYPROF. L.N. MATHURABHIJITANAND

PROF. OF LAW ROLLNO.04

SEMESTERIst

CONTENTS

1-HEADING

2-NAME OF PARTIES

3-BENCH

4-DATE OF JUDGMENT

8/3/2019 case ale

3/12

5-FACTS

6-ISSUES

7-JUDGMENT

8-MAJORITY OPINION

9-MINORITY OPINION

10-CONCURRING OPINION

11-COMMENTS

8/3/2019 case ale

4/12

SMITH V BAKERS & SONS 1891 AC 325

1-PARTIES-:

APPELLANT- SMITH

8/3/2019 case ale

5/12

RESPONDENT- BAKETS & SONS

2-COURT NAME- HOUSE OF LORDS

3-PAGE NO.-325

B E N C H

There were 5 judges in this bench namely-

LORD HALSBURY, LORD BRAMWELL, LORD WATSON,

LORD HERSCHELL, LORD MORRIS

DATE OF JUDGMENT

JULY, 21 1891

F A C T S

Appeal was brought by the plaintiff on the action from a decision

ofAppeal (LORD COLERIDGE, C.J. LINDERLEY & LOPES,

L.JJ)reversing thedecision of the Queens Bench Division (HUDDLESTON,

8/3/2019 case ale

6/12

B., & WILLS, J.), affirming the decision of the learned judge of HalifaxCountry 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 hereceived hisinjuries. 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 wasworking. 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.

8/3/2019 case ale

7/12

(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 theinjury 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:-

8/3/2019 case ale

8/12

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, anda 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 thepremises are safe. Although this was not mentioned by Lord Wright inWilson & Clyde Coal (above), it has been accepted by the courts, eg LordGreene MR in:

8/3/2019 case ale

9/12

ADEQUATE PLANT AND EQUIPMENT

An employer has a 'duty of taking reasonable care to provide properappliances, and to maintain them in a proper condition' (per Lord Herschell,Smith v Baker [1891] AC 325, 362). If necessary equipment is unavailableand this leads to an accident he will be liable, although he is notnecessarily 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 beensupplied 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 MertonBoard Mills [1959] AC 604) makes an employer liable if an employeesuffers personal injury in the course of his employment in consequence of adefect in equipment provided by the employer, and the defect is attributablewholly 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 theequipment supplied, nor where the employee acted foolishly in choosingthe wrong tool for the job, assuming that, where necessary, the employeehas 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 ofwork in the interests of safety, or whether it can reasonably be left to theemployee charged with the task. It is usually applied to work of a regular

type where the proper exercise of managerial control would specify themethod of working, give instruction on safety and encourage the use ofsafety devices.

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

8/3/2019 case ale

10/12

*CRITICISM:-According to me the master was liable for the injuries faced byhim 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.

J U D G M E N T

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.

N O T E

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 employeesituations.

MAJORITY JUDGMENT

The majority opinion was given by-

LORD HALSBURY,L.C.,LORD WATSON, LORD HERSCHELL,

LORD MORRIS.

ACCORDING TO LORD HALSBURY:-

8/3/2019 case ale

11/12

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

8/3/2019 case ale

12/12

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