IMPERIAL CHEMICAL INDUSTRIES LTD.
v.
SHATWELL
Lord Reid
Viscount Radcliffe
Lord Hodson
Lord Pearce
Lord Donovan
Lord Reid
my lords,
This case arises out of the accidental explosion of a charge at a quarry
belonging to the Appellants which caused injuries to the Respondent
George Shatwell and his brother, James, who were both qualified shotfirers.
On 8th June, 1960, these two men and another shotfirer, Beswick, had
bored and filled 50 shot holes and had inserted electric detonators and
connected them up in series. Before firing it was necessary to test the
circuit for continuity. This should have been done by connecting long
wires so that the men could go to a shelter some 80 yards away and test
from there. They had not sufficient wire with them and Beswick went off
to get more. The testing ought not to have been done until signals had
been given so that other men could take shelter and these signals were
not due to be given for at least another hour.
Soon after Beswick had left George said to his brother ” Must we test
” them “, meaning shall we test them, and James said ” yes “. The testing is
done by passing a weak current through the circuit in which a small galvano-
meter is included and if the needle of the instrument moves when a connection
is made the circuit is in order. So George got a galvanometer and James
handed two short wires to him. Then George applied the wires to the
galvanometer and the needle did not move. This showed that the circuit
was defective so the two men went round inspecting the connections. They
saw nothing wrong and George said that that meant there was a dud
detonator somewhere, and decided to apply the galvanometer to each
individual detonator. James handed two other wires to him and George
used them to apply the galvanometer to the first detonator. The result
was an explosion which injured both men.
This method had been regularly used without mishap until the previous
year. Then some research done by the Appellants showed that it might
be unsafe and in October, 1959, the Appellants gave orders that testing must
in future be done from a shelter and a lecture was given to all the shotfirers,
including the Shatwells, explaining the position. Then in December, 1959,
new statutory regulations were made (1959 No. 2259) probably because the
Ministry had been informed of the results of the Appellants’ research. These
regulations came into operation in February, 1960, and the Shatwells were
aware of them. But some of the shotfirers appear to have gone on in the
old way. An instance of this came to the notice of the management in May,
1960, and the management took immediate action and revoked the shot-
firing certificate of the disobedient man, and told the other shotfirers about
this. George admitted in evidence that he knew all this. He admitted
that they would only have had to wait ten minutes until Beswick returned
with the long wires. When asked why he did not wait, his only excuse was
that he could not be bothered to wait.
George now sues the Appellants on the ground that he and his brother
were equally to blame for this accident, and that the Appellants are vicariously
liable for his brother’s conduct. He has been awarded £1,500 being half
the agreed amount of his loss. There is no question of the Appellants
having been in breach of the regulation because the duty under the regulation
is laid on the shotfirer personally. So Counsel for George frankly and
rightly admitted that if George had sued James personally instead of suing
his employer the issue would have been the same. If this decision is right
2
it means that if two men collaborate in doing what they know is dangerous
and is forbidden and as a result both are injured, each has a cause of action
against the other.
The Appellants have two grounds of defence, first that James’ conduct
had no causal connection with the accident the sole cause being George’s
own fault, and secondly volenti non fit injuria. I am of opinion that they are
entitled to succeed on the latter ground but I must deal shortly with the
former ground because it involves the decision of this House in Stapley v.
Gypsum Mines Ltd. [1953) AC 663, and I think there has been some mis-
understanding of that case. Stapley and a man named Dale were working
together in the mine. They found that a part of the roof was dangerous.
They tried to bring it down but failed. Then, contrary to the foreman’s
orders and to statutory regulations, they decided to go on with their ordinary
work and Stapley went to work below that part of the roof. It fell on him
and he was killed. The only issue before the House was whether the conduct
of Dale had contributed to cause the accident, and the House decided by a
majority that it had. There was little, if any, difference of opinion as to
the principles to be applied ; the difference was in their application to the
facts of the case. The case gives authoritative guidance on the question of
causation but beyond that it decides nothing. It clearly appears from the
argument of Counsel that the defence volenti non fit injuria was never taken
and nothing about it was said by any of their Lordships.
Applying the principles approved in Stapley’s case I think that James’
conduct did have a causal connection with this accident. It is far from
clear that George would have gone on with the test if James had not agreed
with him. But perhaps more important James did collaborate with him in
making the test in a forbidden and unlawful way. His collaboration may not
have amounted to much but it was not negligible. If I had to consider the
allocation of fault I would have difficulty in finding both men equally to
blame. If James had been suing in respect of his damage it would I think
be clear that both had contributed to cause the accident but that the greater
part of the fault must be attributed to George. So I do not think that the
Appellants could succeed entirely on this defence and I turn to consider
their second submission.
The defence volenti non fit injuria has had a chequered history. At one
time it was very strictly applied. Today one can hardly read the robust
judgment of Cockburn C.J. in Woodley v. The Metropolitan District Railway
Co. 2 Ex. D. 384 without some astonishment. But one must remember that
his views were in line with those of the judges who a generation or two
before had invented the doctrine of common employment. Then the tide
began to turn. The modern view can be seen emerging in the judgments
of the majority in Yarmouth v. France 19 Q.B.D. 647. No one denied that
a man who freely and voluntarily incurs a risk of which he has full knowledge
cannot complain of injury if that risk materialises and causes him damage.
The controversy was whether acceptance of the risk can (or must) be inferred
from the mere fact that the man goes on working in full knowledge of the
risk involved. The point was finally settled by this House in Smith v. Baker
& Sons [1891] AC 325. The opposing views were tersely stated by Hawkins
J. in Thrussell v. Handyside 20 Q.B.D. 359—” his poverty, not his will,
” consented to incur the danger” (p. 364)—and by Lord Bramwell in
Membery v. Great Western Railway Co. 14 App. Cas. 179: “The master
” says here is the work, do it or let it alone. . . . The master says this, the
” servant does the work and earns his wages, and is paid, but is hurt. On
” what principle of reason or justice should the master be liable to him in
” respect of that hurt? “
The ratio in Smith v. Baker was I think most clearly stated by Lord
Herschell: ” The maxim is founded on good sense and justice. One who has
” invited or assented to an act being done towards him cannot, when he
” suffers from it, complain of it as a wrong. The maxim has no special
” application to the case of employer and employed, though its application
” may well be invoked in such a case “. Then he pointed out that a person
3
undertaking to do work which is intrinsically dangerous, notwithstanding
that care has been taken to make it as little dangerous as possible, cannot
if he suffers complain that a wrong has been done him. And then he
continued: ” But the argument for the Respondents went far beyond this.
” The learned counsel contended that, even though there had been negligence
” on the part of the Defendants, yet the risk created by it was known to the
” Plaintiff; and inasmuch as he continued in the Defendants’ employment,
” doing their work under conditions, the risk of which he appreciated, the
” maxim, volenti non fit injuria, applied, and he could not recover.” And
later he said: ” If, then, the employer thus fails in his duty towards the
” employed, I do not think that because he does not straightway refuse to
” continue his service, it is true to say that he is willing that his employer
” should thus act towards him. I believe it would be contrary to fact to assert
” that he either invited or assented to the act or default which he complains
” of as a wrong.”
More recently it appears to have been thought in some quarters that, at
least as between master and servant, volenti non fit injuria is a dead or dying
defence. That I think is because in most cases where the defence would now
be available it has become usual to base the decision on contributory
negligence. Where the plaintiff’s own disobedient act is the sole cause of
his injury it does not matter in the result whether one says 100 per cent,
contributory negligence or volenti non fit injuria. But it does matter in a
case like the present. If we adopt the inaccurate habit of using the word
” negligence ” to denote a deliberate act done with full knowledge of the
risk it is not surprising that we sometimes get into difficulties. I think that
most people would say, without stopping to think of the reason, that there
is a world of difference between two fellow servants collaborating carelessly
so that the acts of both contribute to cause injury to one of them, and two
fellow servants combining to disobey an order deliberately though they
know the risk involved. It seems reasonable that the injured man should
recover some compensation in the former case but not in the latter. If the
law treats both as merely cases of negligence it cannot draw a distinction.
But in my view the law does and should draw a distinction. In the first case
only the partial defence of contributory negligence is available. In the second
volenti non fit injuria is a complete defence if the employer is not himself at
fault and is only liable vicariously for the acts of the fellow servant. If the
plaintiff invited or freely aided and abetted his fellow servant’s disobedience,
then he was volens in the fullest sense. He cannot complain of the resulting
injury either against the fellow servant or against the master on the ground
of his vicarious responsibility for his fellow servant’s conduct. I need not
here consider the common case where the servant’s disobedience puts the
master in breach of a statutory obligation and it would be wrong to decide
in advance whether that would make any difference. There remain two
other arguments for the Respondent which I must deal with.
It was argued that in this case it has not been shewn that George had a full
appreciation of the risk. In my view it must be held that he had. He knew
that those better qualified than he was took the risk seriously. He knew that
his employers had forbidden this practice and that it had then been prohibited
by statutory regulation. And he knew that his employers were taking strong
measures to see that the order was obeyed. If he did not choose to believe
what he was told I do not think that he could for that reason say that he did
not fully appreciate the risk. He knew that the risk was that a charge
would explode during testing, and no shotfirer could be in any doubt about
the possible consequences of that.
Finally the Respondent argues that there is a general rule that the defence
of volenti non fit injuria is not available where there has been a breach
of a statutory obligation. It would be odd if that were so. In the present
case the prohibition of testing except from a shelter had been imposed by the
Appellants before the statutory prohibition was made. So it would mean
that if the Respondent had deliberately done what he did in full know-
ledge of the risk the day before the statutory prohibition was made this
defence would have been open to the Appellants, but if he had done the
same thing the day after the regulation came into operation it would not.
4
The rule is said to have been established by the case of Baddeley v.
Earl Granville 19 Q.B.D. 423. The facts were straightforward. Safety
required that there should be a banksman at the mine where the man was
working. But the practice was not to have a banksman at night, and the
accident which caused the man’s death was due to the fact that there was
no banksman on duty when it happened. The defence was that the man
knew of this practice and knew the risk which it involved but nevertheless
went on working. This case was decided before Smith v. Baker and as
Wills J. pointed out that defence could have succeeded if there had been
no question of a breach of a statutory rule but only an unsafe system of
work. But it so happened that there was a special statutory rule for this
mine which required the presence of a banksman. So the court very wisely
avoided the general question which was later decided by Smith v. Baker
and founded its judgment on the existence of the Statutory rule.
Wills J. said: ” I do not attempt to frame any general rule “. He assumed
that volenti non fit injuria is founded on an implied agreement and said:
” But it seems to me that if the supposed agreement between the deceased
” and the defendant, in consequence of which the principle of volenti non
” fit injuria is sought to be applied, comes to this, that the master employs
” the servant on the terms that the latter shall waive the breach by the
” master of an obligation imposed on him by statute, and shall connive
” at his disregard of the statutory obligation imposed on him for the benefit
” of others, as well as of himself, such an agreement would be in violation
” of public policy and ought not to be listened to.”
I entirely agree that an employer who is himself at fault in persistently
refusing to comply with a statutory rule could not possibly be allowed to
escape liability because the injured workman had agreed to waive the
breach. If it is still permissible for a workman to make an express agree-
ment with his employer to work under an unsafe system, perhaps in con-
sideration of a higher wage—a matter on which I need express no opinion
—then there would be a difference between breach of a statutory obligation
by the employer and breach of his common law obligation to exercise due
care: it would be possible to contract out of the latter but not out of the
former type of obligation. But all that is very far removed from the present
case.
Baddeley’s case was dealing with an employer who was at fault. To my
mind it has nothing to do with the case of an employer who was not at
fault and I can find nothing in the judgments to suggest that it has. We
were also referred to Wheeler v. New Merton Board Mills Ltd. (1933) 2 K.B.
669 when Baddeley’s case was approved, but that case carries the matter
no farther.
I can find no reason at all why the fact that these two brothers agreed
to commit an offence by contravening a statutory prohibition imposed on
them as well as agreeing to defy their employer’s orders should affect
the application of the principle volenti non fit injuria either to an action by
one of them against the other or to an action by one against their employer
based on his vicarious responsibility for the conduct of the other. I would
therefore allow this appeal.
Viscount Radcliffe
MY LORDS,
It sometimes helps to assess the merits of a decision, if one starts by
noticing its results and only after doing that allots to it the legal principles
upon which it is said to depend. Starting in that order, the present case
can be summarised as follows. The Shatwell brothers have injured them-
selves by causing an explosion, to the danger of which they would not
have been exposed if they had obeyed the shot-firing regulations, of which
they knew, and their employer’s instructions. This event is very unfortunate
for them; but they were adults, skilled and trained men, and they went into
the operation of testing the electrical circuit without taking cover in the
5
face of their knowledge that they ought not to do it in that way. I do
not suppose that, having regard to their experience, the method they adopted
seemed to them to be dangerous: on the other hand, they must have been
aware, in the light of the recent regulations, that it carried an element of
risk and, as between the two of them, each of them must be taken to have
accepted the risk of their joint operation.
Their employer is in no way to blame. The Company had done every-
thing it could to make sure that its shot-firers did not test without taking
cover, and it had even arranged their scale of remuneration in a way that
removed any temptation to the taking of short cuts. It did not know that
they were going to break its rules or were breaking its rules.
If the decision appealed from is to stand, the Respondent is none the less
entitled to make his employer pay him damages in compensation or part
compensation for his injury and, if he can get his damages, there cannot
be any question that his brother is also entitled to compensation trom the
employer. To me this seems to be an absurd result, and I think that it
so appeared to the members of the Court of Appeal. Moreover, not only
can I see no consideration of public advantage that would support it, I can
see only elements of public disadvantage in allowing it. For, if an employer
is to be liable to pay damages to his employee, even though he has failed
in no part of his duty and has done all that vigilance can suggest to deter
the employee from the action that produces the damage, the law deprives
the employer of any reason to be vigilant, since that protects him no better
than inertia: while, on the other hand, the employee is released by the
law from a useful stimulus to prudence, if he knows that not even imprudence
or disobedience is going to disqualify him from looking to his employer for
compensation.
I start, then, with the assumption that something must have gone wrong
in the application of legal principles that produce such a result. There
is no doubt that the Courts below thought that they were bound to arrive
at it in deference to the recent decision of this House in Stapley v. Gypsum
Mines Ltd. [1953] AC 663. I am glad to say that I do not think that
the Stapley decision does require this conclusion, if only because the prin-
ciple volenti non fit injuria was not introduced into the argument of that
case and its influence is not reflected in the opinions delivered in the House.
This aspect is, I know, a determining point in the views formed by your
Lordships on the present appeal, and I certainly do not dissent from its
importance. I cannot help thinking, however, that, even apart from the
defence afforded by the maxim volenti non fit injuria, there is a basic
impediment in the path of a plaintiff who seeks to establish liability
against a defendant in respect of a negligent or wrongful operation which
both have jointly undertaken, and this impediment is really lied up with
the nature of causation in the case of a joint enterprise.
Since in this case the employer, if liable at all, is liable only by virtue
of vicarious responsibility, I agree that the primary issue, if the Respondent.
George Shatwell, is to succeed here, is whether he could maintain an
action for damages against his brother James. Now, in considering that
question one must choose one of two alternative lines of approach and then
follow it to its conclusion. On one view George simply blew himself up.
That, I think, is the way that this case would be regarded and disposed
of by the lay critic. He tested the detonator with the galvanometer, con-
nected the wires that he had asked his brother to find, and the fact that
his brother had co-operated in earlier parts of the whole testing operation
and had handed him those wires to use would not present itself as ground
for saying that that brother’s actions had been in part the cause of the
damage that he had inflicted on himself. After all, if a man decides to
test an unexploded mine by tapping it with a hammer and he asks some
one standing by to find the hammer and hand it to him, the complier
would not naturally be thought of as being in any degree the author of
any injury that is inflicted on the tester if the mine explodes. So, from that
point of view, George had only himself to blame and has no right to get
damages out of James.
6
But then there is the other way of looking at the matter, which has been
taken both in the High Court and the Court of Appeal and which, I think,
is an application of the method of reasoning that was used by the majority
of this House in the Stapley case. From this point of view the actual
testing of the individual detonator is not the important thing. What is
looked at is the whole operation of carrying out the circuit test under the
forbidden conditions, and, since James made what was at any rate not a
negligible contribution to this operation, it is said that he must be in some
degree responsible with his partner for the damage that was the final result
of the joint enterprise.
So be it. I think that there are dangers in such a line of reasoning,
since it tends to equate the idea of causation with the idea of participation,
and I cannot believe that in law the two conceptions are really interchange-
able. But let it be that George sues James for damages on this basis, or,
for that matter, that James sues George I do not see how either can succeed
against the other, since, where both were joined in carrying through the
whole operation and each in what he did was the agent of the other to
achieve it, there was nothing that one did against the other that the other
did not equally do against himself. This, in my view, is the true result of
a joint unlawful enterprise, in which what is wrong is the whole enterprise
and neither of the joint actors has contributed a separate wrongful act
to the result. Each emerges as the author of his own injury.
In my opinion, it is fallacious to treat this sort of case as if it had any
analogy with such a case as Admiralty Commissioners v. Owners of s.s.
Volute [1922] 1 A.C. 129. The situation there is one in which two persons,
each acting independently of the other, have each contributed separately
his own wrongful act to a total situation from which damage results. In
such a case it is reasonable enough to measure the importance to the whole
of the separate contribution of each and to arrive at a conclusion of contri-
butory negligence and of proportionate liability accordingly. But, where
the actors are joint actors, the actual contribution made by each is irrelevant
to the result, since each was merely taking his agreed or accepted part in
achieving the whole. Indeed, though I can see at any rate an argument for
making such joint undertakers share equally between them the whole bill
for their separate injuries, I can see no argument at all for making each
contribute to the other according to the measure of his actual contribution
to the common purpose.
This, I suppose, is much the same line of reasoning as was adopted by
the Court of Appeal in the Stapley case and was treated by this House
as being inapplicable to the circumstances of that case. It may be that the
Court of Appeal had expressed themselves there in rather more trans-
cendental language than I have tried to use, and their way of looking at it
seems to have appeared to the members of this House more complicated
than perhaps it was. But the question is whether what determined Stapley
need determine this case. I do not think that it need. I cannot say that
I find the reasoning of the majority of this House in Stapley easy to follow,
but the determining point seems to have been their view that once the
argument was not accepted that Stapley’s death was ” not in any way
” the result of Dale’s negligence “, Dale’s and his employer’s liability must
necessarily follow. That conclusion may have been sufficient to dispose
of the case before them, but I think that it would be unfortunate if it
came to be regarded as authority for any general principle of causation,
where joint wrongdoers succeed in inflicting separate injuries on themselves.
For the further question has in such cases to be met and answered, what
in this context do you mean by the ” negligence ” of one towards the other?
These considerations apart, there are involved in this case questions as to
the application of the maxim volenti non fit injuria and as to the principle
that in the eyes of the law a man cannot be treated as having disavowed a
statutory protection enacted for his benefit in the public interest. On these
points, I have had the opportunity of studying in advance the opinions
of your Lordships, and I wish to associate myself in particular with the
opinion to be delivered by my noble and learned friend, Lord Pearce.
7
I do think it of great importance that the law should not in general allow
a person to disqualify himself from the protection of a statutory duty
imposed for his benefit, where there is any element of public advantage in
upholding the duty. But I cannot think that this is a case to which that
principle applies.
I would allow the appeal.
Lord Hodson
my lords,
On the 28th June, 1960, George was engaged with his brother, James
Shatwell, in preparing a round of 50 explosive charges for electrical deton-
ation when one of the charges exploded prematurely with the result that both
brothers sustained injuries. George obtained a judgment against Imperial
Chemical Industries, the employers of both brothers, on the basis that both
were engaged together in a negligent act and one which was performed in
breach of a statutory duty imposed by Regulation 27(4) of the Quarries
(Explosives) Regulations, 1959, made under the Mines and Quarries Act,
1954.
Regulation 27(4) reads as follows:
” No shot firer shall fire any round of shots connected in series
” at a quarry by means of electric shot firing apparatus unless he has
” tested the circuit for continuity by means of a suitable testing device
” and has found it to be satisfactory. A shot firer shall not make any
” such test unless all persons in the vicinity have withdrawn to a
” place of safety and he himself has taken proper shelter.”
This rule was flagrantly breached in spite of the care taken by the Company
to see that it was adhered to and no blame attaches to the Company for the
accident. Judgment was given in favour of George although he was the
author of his own wrong in the final act which caused his injury since upon
the evidence it was held by the trial judge and by the Court of Appeal that
both brothers were engaged together in the operation of testing contrary to
the Regulations without taking cover as required.
This case has features which correspond somewhat closely with those
revealed in the case of Stapley v. Gypsum Mines Ltd. [1953] AC 663.
There an accident occurred through two miners of equal status working in a
gypsum mine, finding that the roof was dangerous and might fall, having
been told by the foreman to fetch the roof down and having failed to get
the roof down, continued to work, with the result that the roof fell and one
was killed.
On the facts your Lordships by a majority held that the fault of the
surviving miner for which his employers were liable was a contributory cause
of the accident which resulted in the death of the other.
There was, so far as I can see, no difference in opinion as to any principle
involved, the only difference between the majority and the minority was
whether the breach of duty by the dead man was the cause of his death,
the position being that he resumed work under the defective roof after he
and the other man had abandoned their efforts to get the roof down. The
minority held that the action of the deceased man alone was the cause of
the accident. The majority on the facts of the case treated the actions
of both men as part causes of the accident with the consequence that a
proportion of the responsibility fell upon the employers as vicariously
responsible for the fault of their servant. I will not repeat what was said
in that case by my noble and learned friend, Lord Reid, but following his
example I would apply to this case some observations of Lord Birkenhead
in Admiralty Commissioners v. Owners of s.s. Volute and regard James’
fault in co-operating with George in testing at the wrong time with not
taking cover as so much mixed up with the state of things brought about
by George that ” in the ordinary common sense of the business ” it must
be regarded as having contributed to the accident.
8
Accordingly so far I agree with the concurrent findings of fact of the
Court of Appeal and the trial judge, which means that unless the Company
has some defence of its own it must accept vicarious responsibility for the
participation of James in the accident.
The only surviving question is whether the Company can rely on the
defence summarised in the maxim volenti non fit injuria.
It is true that since the decision of this House in Smith v. Baker & Sons
[1891] AC 325 this defence has as between employer and employee almost
disappeared. The reasons for this are made plain in the judgment of
Goddard L.J. in the case of Bowater v. Rowley Regis Corporation [1944]
K.B. 476. He said that the maxim must be applied with extreme caution
in the case of master and servant, adding: ” Indeed, I would say that it
” can hardly ever be applicable where the act to which the servant is said to
” be ‘ volens ‘ arises out of his ordinary duty, unless the work for which he
” is engaged is one in which danger is necessarily involved.” Scott L.J.
in the same case said, at p. 479 “… a man cannot be said to be truly
” ‘ willing ‘ unless he is in a position to choose freely, and freedom of choice
” predicates, not only full knowledge of the circumstances on which the
” exercise of choice is conditioned, so that he may be able to choose wisely,
” but the absence from his mind of any feeling of constraint so that nothing
” shall interfere with the freedom of his will “. The maxim is based on
agreement (Smith v. Baker) though it is not necessarily, as Goddard L.J.
pointed out in Bowater’s case, that there should be found to be a special
contract. Economic pressures are usually present which make it unjust
to allow an employer where a servant has been injured to say in defence
that the servant ran the risk with his eyes open being fully aware of the
danger he incurred.
An illustration of this approach to the defence of ” volenti ” is to be found
in a decision of Lynskey, J. in Williams v. Port of Liverpool Stevedoring
Co., Ltd. and Another [1956] 2 All E.R. 69 which followed the case of
Stapley v. Gypsum (supra).
There the defence of volenti non fit injuria was pleaded where workmen
had, in defiance of their employer’s instructions, stacked bags in a dangerous
manner. One bag fell and one man was injured but the injured man was
not defeated by the plea although he and the other members of the gang
in which he worked had agreed to stack the bags in the manner which
caused the accident. The defence was dismissed summarily and maybe it
would have been hard for the plaintiff to hold out against the other members
of the gang. The learned judge treated the case as parallel with Stapley
v. Gypsum where the defence of volenti non fit injuria was not raised, perhaps
because the joint decision of the two men involved did not amount to an
agreement.
Here, however, the problem arises in an acute form. The maxim in its
application in the law is not limited to master and servant but where it
applies it applies equally to a stranger as to anyone else, see per Lord
Halsbury in Smith v. Baker & Sons (supra).
This case should be looked at first as if it were an action by George
Shatwell against James Shatwell before the doctrine of respondeat superior
is applied. As between these two brothers there can be no doubt that each
agreed with the other to accept the risk of an explosion taking place at a
time when neither had taken cover. Their employers, the Appellants, had
done everything they could to see that orders were complied with in an
endeavour to ensure that no testing should be done in the open. They had
done so before the Regulations of 1959 came into force. On the 10th
February, 1960, they produced a set of rules which were brought to the
attention of the men who knew that they were acting in defiance of them.
The men knew also that in May, 1960, a shotfirer who broke the rules was
suspended from work and had his shotfiring certificate revoked. Rates of
pay were geared so as to offer no inducement to save time by omitting
safety precautions.
9
It was argued for the Respondent that the risk ot a detonator being
exploded by the galvanometer, the testing instrument used, was so small
that no one believed in the possibility of an explosion, so that it cannot be
said that the brothers Shatwell or either of them appreciated the risk. If
they did not appreciate the risk of course the doctrine of ” volens ” would
have no application, but I cannot accept that the risk was not truly appre-
ciated. They were handling explosives in defiance of regulations designed
to ensure the safety of the men working in the quarry by insistence on the
taking of cover. Moreover, they were qualified shotfirers who knew that
they were dealing with a dangerous quantity of explosive when they entered
on the foolhardy course which resulted in the accident. If the breach had
been a breach of a common law duty hardly anyone would doubt that the
doctrine of ” volens ” would defeat the claim of either brother against the
other.
The defence was, however, rejected by the Court of Appeal as well as by
the trial judge because it has long been treated as settled law that the
doctrine of votenti non fit injuria affords no defence to a claim based on
breach of statutory duty. See Wheeler v. New Merton Board Mills, Ltd.
[1933] 2 K.B. 669, a decision of the Court of Appeal following Baddeley v.
Earl Granville, 19 Q.B.D. 423. The basis of the latter decision, accepted
without enthusiasm by the Court of Appeal in the former case, was I think
that it was against public policy that as between master and servant the
former should escape liability where a servant has accepted a risk by agree-
ment with him in defiance of an obligation enforced by statute. I do not
doubt the validity of these decisions but I do not think that if public
policy is at the root of the problem there is any reason why the Appellants
should not avail themselves of the defence. The duty imposed by the
regulation was a duty imposed directly on the shotfirers and not directly on
the employers. As has already been pointed out, the Appellants had done
their utmost to see that the regulations were complied with. It is manifestly
unjust that each brother who has acted in defiance of orders and of regula-
tions made by the employer should be able to sue the employer and recover
damages on the ground that the master is vicariously liable for the wrongful
act of the servant committed in the course of his employment. In a
situation such as this it seems to me that the pull of public policy is in a
direction opposite from that taken in those cases, of which Stapley v. Gypsum
Mines Ltd. was one, where the statutory duty is imposed directly on the
employer.
On this ground I would allow the appeal.
Lord Pearce
my lords,
The employers had striven without compromise to prevent shot-firers testing
in the open. They had done everything that they could to enforce the safety
rules. They had been influential in tightening up the regulations imposed on
the shot-firers personally, they had publicly punished and degraded a shot-
firer who tested in the open, and they had in consequence faced trouble with
the Union. They had arranged a system of work and pay designed to
discourage the cutting of time and the taking of risks. The two shot-firers
George and James knew all this. In spite of it they deliberately broke the
statutory regulations which were laid on them personally and together tested
in the open. As a result they blew themselves up. They were trained, trusted,
certificated men and it would have been absurd to have someone to watch
over them.
Although in this action George alone is the plaintiff, each should be
entitled, on the plaintiff’s argument, to get damages from the employers on
the ground that the other’s negligence and breach of statutory duty renders
the employers vicariously liable. And whatever precautions the employers
had used to prevent the two men testing in the open, they would, if the men
10
had managed to evade those precautions and blown themselves up, still be
liable vicariously to the men for their negligence in doing so. That result
offends against commonsense.
A comparable absurdity would exist if a workman who deliberately breaks
a regulation or duty which he is properly delegated to perform could, when
injured solely through his own breach, claim damages on the ground that the
employers are liable because they are vicariously in breach of duty or regula-
tion in so far as the workman himself broke it. The law has, however, dealt
with and declined to accept this absurdity (Smith v. Baveystock & Co. Ltd.
[1945] 1 A.E.R. 531 and other cases). ” This conclusion “, says Prof. Fleming
(Law of Torts, 2nd Ed. p. 461) ” seems based on fairness and commonsense
” rather than on such vulnerable explanations as that the plaintiff was the
” ‘ sole cause’ of his injury, or was engaged in illegal conduct, or that no
” man can profit by his own wrong …. Although all of these explanations
” have been individually advanced, none of them are by themselves sufficient.
” The first is incompatible with Stapley v. Gypsum Mines [1953] AC 663,
” the second with National Coal Board v. England [1954] A.C. 403, and the
” last with both “.
The present case is really an extension of the same problem. Although
the law has refused damages to a man who himself breaks a regulation so
that he injures himself, can the man circumvent that difficulty by persuading
a colleague to joint him in doing the wrongful act? Can the two workmen
then each say—” My colleague was negligent along with me; our one joint
” explosion blew us both up; therefore his negligence caused my injury and
” my negligence caused his injury and our employer must pay damages to
each of us accordingly “. It would be illogical and also I think against public
policy if a workman, intending to commit a breach of regulation or duty, can
thus ensure his getting some damages for any resultant accident by luring a
fellow-worker to join him in the breach.
Is there some satisfactory answer which would break the chain of the
Plaintiff’s argument, without having unjust repercussions on more meritorious
claims?
Apportionment of loss through contributory negligence, which can so often
provide a fair result, is of no avail in solving this problem. For if one of
the men is held, owing to his greater fault, entitled only to 20 per cent, of
his loss, then as a general rule the other must be entitled to 80 per cent, of
his loss; and the total result would still offend against commonsense.
Must it be said that James caused the accident? That was a question of
fact. George suggested the course of action and George’s hand created the
explosion ; but James assented to the course of action and took part in the
testing. Had the learned trial judge held that James did not cause George’s
injury, it would not, I think, have been right to over-rule him. He felt
himself bound, however, by the reasoning which lead to the decision of fact
in Stapley’s case ([1953] AC 663). He held that the testing was being done
by both men together and he regarded the fact that George’s hand fired the
explosion as merely an incidental factor.
At first sight it may seem odd that when two men mutually assent to do a
dangerous act, it should be held that each has partially caused the injuries
of the other. One workman owes a duty to another to take care not to injure
him, but I doubt, as between equals, whether that duty is greater than
or different from the duty of care not to injure some one other than a
fellow servant standing within the area of risk from his negligence. Different
considerations of course apply, when negligent instructions are given by
some one such as a foreman who is entitled to give instructions. When
two men agree together to take a risk, a jury might well take the simple
view that each caused his own injuries. The difficulty of the question is
shown by the conflict of opinion in Stapley’s case between the Court of
Appeal and the majority of your Lordships’ House. In that case it could
fairly be argued that the accident could not have happened had Dale gone
on working on the roof as he should have done. In the present case,
however, we have no knowledge what would have happened if James
had refused. The question of causation is one of fact. But in view of the
trial judge’s decision and the reasoning which led to the decision in Stapley’s
11
case, I doubt if it is open to your Lordships to take a different view of
the facts.
The doctrine of vicarious liability has not grown from any very clear,
logical or legal principle but from social convenience and rough justice.
The master having (presumably for his own benefit) employed the servant,
and being (presumably) better able to make good any damage which may
occasionally result from the arrangement, is answerable to the world at
large for all the torts committed by his servant within the scope of it.
The doctrine maintains that liability even in respect of acts which the
employers had expressly prohibited (see Canadian Pacific Railway v. Lock-
hart [1942] AC 591) and even when the employers are guilty of no fault
themselves (Staveley Iron & Chemical Co. Ltd. v. Jones [1956] A.C. 627
and see per Fullagar J. in Darling Island Stevedoring & Lighterage Co. Ltd.
v. Long 97 C.L.R. 36 at 57). It follows that they are liable for the torts
of one servant against another. In the present case although George and
James were acting wrongfully and in breach of the employers’ prohibition
they were clearly acting within the scope of their employment.
Unless the servant is liable the master is not liable for his acts; subject
only to this that the master cannot take advantage of an immunity from
suit conferred on the servant (Broom v. Morgan [1953] 1 Q.B. 597). On the
facts of the present case was James liable to George?
In Stapley’s case the defence of volenti non fit injuria was not raised in
any of the courts below nor in the Respondent’s case to your Lordships’
House ([1953] AC 663 see at p. 665); nor was it discussed in the opinions.
It has, however, been argued in the present case. One naturally approaches
that defence with suspicion. For in the sphere of master and servant its
role has been inglorious up to 1891, and, since that date, insignificant. In
Smith v. Baker [1891] AC 325 it was laid down that the defence is not
constituted by knowledge of the danger and acquiescence in it, but by an
agreement to run the risk and to waive any rights to recompense for any
injury in which that risk may result.
The reason for the rarity of the defence thereafter was that it usually
overlapped contributory negligence (and common employment) and pro-
duced the same result. In cases where there was real assumption of risk
by the servant he was on his part acting with negligence ; and that negligence
was a more practical and satisfactory issue than the implication of assump-
tion of risk. So long as they were both total defences there was the same
bias against them both. Since contributory negligence has ceased to be a
total defence and it has become possible to produce a fair result by appor-
tionment, the reluctance to find the total defence of volenti non fit injuria
became more marked.
Moreover, the plea is in fact very rarely applicable to master and servant
cases. It does not apply to consent obtained by any pressures whether
social, economic, or simply habit. The master has an important duty of
care for his servant; in general he has more skill in organisation, a wider
foresight and more opportunity for innovation. So the assent of the servant
to the master’s failure very seldom in fact amounts to a real case of volenti
non fit injuria. Nevertheless, the plea is a valid plea in the right setting. Is
the present case one of the rare occasions in the sphere of master and servant
when the plea may serve a fair and useful purpose? One must consider
the plea in relation both to the cause of action in breach of statutory duty
and also to that in common law negligence since the learned judge found
that each had been proved.
Where Parliament has laid down that certain precautions shall be taken
by the master to protect his workmen, a master is not and should not be
entitled to neglect those precautions and then rely on an express or implied
agreement between himself and the workman that the latter, if injured as a
result of the neglect, will bear the loss alone. In Wheeler v. New Merton
Board Mills Ltd. the Court of Appeal ([1933] 2 K.B. 669) laid down that
the defence of volenti non fit injuria was no answer to a claim by a workman
against his employer for injury caused through a breach by the employer of
a duty imposed on him by statute. They so held (with some reluctance
which I do not share) principally because the case of Baddeley v. Granville
12
(Earl) 19 Q.B.D. 423 had stood for some fifty years. But in those cases
the Defendants were themselves in breach of statutory duty (as were the
Defendants in Stapley’s case). In the present case the Defendants them-
selves were in breach of no statutory duty. The questions of public policy
and fairness which reinforced those decisions do not help the Plaintiff in
the present case but rather tell the other way. In my opinion, the rule which
the courts have rightly created disallowing the defence where the employer
is in breach of statutory duty should not apply to a case such as the present.
The defence should be available where the employer was not himself in
breach of statutory duty and was not vicariously in breach of any statutory
duty through the neglect of some person who was of superior rank to
the Plaintiff and whose commands the Plaintiff was bound to obey (or who
had some special and different duty of care, e.g., National Coal Board v.
England [1954] A.C. 403, where a miner was injured by the shot firer firing
the charge) and where the plaintiff himself assented to and took part in the
breaking of the statutory duty in question. If one does not allow some
such exception one is plainly shutting out a defence which, when applied
in the right circumstances, is fair and sensible.
So far as concerns common law negligence, the defence of volenti non
fit injuria is clearly applicable if there was a genuine full agreement, free
from any kind of pressure, to assume the risk of loss. In Williams v. Port
of Liverpool Stevedoring Co. Ltd. (1956 2 All.E.R. 69, see 72 H) Lynskey, J.
rejected the defence where one stevedore was injured by the deliberate
negligence of the whole gang (to which the plaintiff gave ” tacit consent”)
in adopting a dangerous system of unloading. There was an overall duty
on the master to provide a safe system of work, and it is difficult for
one man to stand out against his gang. In such circumstances one may
not have that deliberate free assumption of risk which is essential to the
plea and which makes it as a rule unsuitable in master and servant cases
owing to the possible existence of indefinable social and economic pressures.
If the plaintiff had been shown to be a moving spirit in the decision to unload
in the wrong manner it would have been different. But these matters are
questions of fact and degree.
In the present case it seems clear that as between George and James there
was a voluntary assumption of risk. George was clearly acting without any
constraint or persuasion ; he was in fact inaugurating the enterprise. On
the facts it was an implied term———(to the benefit of which the
employers are vicariously entitled) that George would not sue James for any
injury that he might suffer, if an accident occurred. Had an officious
bystander raised the possibility, can one doubt that George would have
ridiculed it?
It was argued that there was not in George’s mind a sufficient appreciation
of the risk to support the plea. The trial judge was clearly of opinion that
there was. I do not see how he could have come to any other conclusion
in view of the employer’s propaganda on this subject to all their shot firers.
The men all knew of the risk. It was a very remote risk ; but this was the
unlikely occasion on which a risk became an accident.
The same result, so far as the breach of statutory duty is concerned, could
be reached by accepting the reasoning of the High Court of Australia in
Darling Island Stevedoring & Lighterage Co. Ltd. (97 C.L.R. 36) where it
was held that breach of a regulation laid on ” the person in charge ” as
defined by the regulations, did not create a vicarious liability on the employer
of such person. It is not necessary to decide the point since the defence
of volenti non fit injuria in the present case absolves the Defendants. It
was discussed but not decided in Harrison v. National Coal Board ([1951]
A.C. 639) and in National Coal Board v. England ([1954] A.C. 403, see per
Lord Reid at 425). I prefer to reserve the matter for future consideration.
I would also reserve the point which Lord Porter in Stapley v. Gypsum
Mines Ltd. [1953] AC 663 at p. 675 described as ” elusive and difficult”,
adding: ” It may be that in some future case your Lordships will Be con-
” fronted with the difficulty of finding a solution “.
I would allow the appeal.
13
Lord Donovan
my lords,
The Respondent in this appeal was employed by the Appellant company
in 1960 as an experienced shot firer in their quarry at Tunstead. On the 28th
June in that year he was engaged as one of a team of three shot firers in
placing explosives for the purpose of blasting operations in the quarry. After
the explosives had been placed in position and the detonators affixed, the
drill was to make what is called a ” continuity test “. There were some 50
charges in position all connected by electric wiring. The firing would be
done by sending an electric current through this wiring. To verify that
there was no break in the circuit a galvanometer was used. The two ends
of the electric wiring would be brought into contact with the terminals on
the galvanometer with the result that an electric impulse would be imparted,
insufficient to explode the charges but sufficient to demonstrate by the
oscillation of the galvanometer needle that the circuit was unbroken.
Regulation 27 (4) of the Quarries (Explosives) Regulations, being Statutory
Instrument No. 2259 of 1959, requires all such testing to be done from proper
shelter. The words are these: —
” No shot firer shall fire any round of shots connected in series at a
” quarry by means of electric shot firing apparatus unless he has tested
” the circuit for continuity by means of a suitable testing device and
” has found it to be satisfactory. A shot firer shall not make
” any such test unless all persons in the vicinity have withdrawn to a
” place of safety and he himself has taken proper shelter.”
In order to enable the continuity test to be carried out in accordance
with this regulation one of the team of shot firers named Beswick went off
to get a longer cable so that the test could be carried out from proper shelter.
He would have been away about ten minutes. The other two shot firers
remained at the scene. They were the Respondent and his brother, also an
experienced shot firer. Hereafter I will refer to the Respondent as ” George ”
and his brother as ” James “. When Beswick had departed George said to
James ” Must we test them? ” meaning in the local idiom ” Shall we test
” them? ” James replied ” Yes “. The two then proceeded to carry out a
continuity test in the open without retiring to shelter. The first test, which
was a single test of the whole circuit, showed that there was a fault
somewhere in it. George and James then proceeded to test each detonator
separately. Again they did not retire to shelter but brought two wires leading
from the first detonator to the galvanometer and with them George touched
the terminals of the galvanometer. The charge exploded and George and
James were injured, George seriously.
Both George and James in doing what they did were clearly and admittedly
in breach of regulation 27 (4). In due course, George brought the present
action against the Appellants, contending that he had been injured as a
result of James’s negligence and breach of statutory duty and for that injury
the Apellants as James’s employers were vicariously responsible.
Mr. Justice Elwes gave judgment for the Respondent but reduced his
damages by one-half to take account of his own contributory negligence. The
Court of Appeal upheld his judgment. Both courts expressed the opinion that
the result was unjust but held themselves constrained to find in favour of the
Respondent by the decision of this House in Stapley v. Gypsum Mines Ltd.
[1953] AC 663.
The decision in that case was essentially a decision upon causation. Dale
and Stapley were both guilty of a breach of statutory duty and of negligence
by reason of their joint decision to carry on working without first bringing
down the dangerous roof. The consequences fell wholly upon Stapley, who
was killed while working under the roof while Dale, in pursuance of his
duties, had for the moment to be elsewhere. The controversy in these
circumstances was whether Dale’s breach of statutory duty and his negligence
could be treated as a cause of Stapley’s death, although Stapley himself was
guilty of the like breach and the like negligence. This House held, by a
majority, that they could.
14
Causation must, primarily, be a question of fact; but nevertheless a ques-
tion of law was in my opinion also decided by the case, namely, whether a
workman who is injured in consequence of a breach of statutory duty and
of negligence of which both he and a fellow workman are together guilty is
precluded from contending that his fellow workman’s breach and negligence
was a cause of the ensuing injury. It was held that he was not so precluded.
In the present case, therefore, the contention was open to George, but
that by no means concludes the matter. It could still be defeated by the
Appellants if they were able to show—
(a) that there was indeed no breach of statutory duty or negligence at
all on the part of James: or
(b) that even if there were, George had agreed to run the risk of any
consequent injury, and could not therefore found upon James’s
breach or negligence as he must be able to do if the Appellants were
to be vicariously liable for it. In other words volenti non fit injuria.
Before your Lordships the argument was confined to the alleged breach
of statutory duty by James and it was argued that none had occurred. James
did not, it was said, carry out any continuity test in the open. That was done
solely by George, for the test consists of bringing the electric leads into
contact with the terminals on the galvanometer, and that was done by
George alone.
My Lords, I am satisfied that this is too narrow a view. The test was a
joint operation on the part both of James and George, and it matters not in
these circumstances whose hand it was that did the concluding act. Moreover,
it would seem from the judgment of Elwes J. that a breach of Regulation
27 (4) on the part of James was admitted at the trial. I think that such an
admission was rightly made.
It follows, on the facts of this case, and bearing in mind the decision hi
Stapley v. Gypsum Mines Ltd. that James’s breach must be treated as one
cause of George’s injury.
This brings me to the Appellants’ plea of volenti non fit injuria. Inasmuch
as the courts below have held themselves bound by the decision in Stapley v.
Gypsum Mines Ltd. it should be recalled at the outset that no such plea was
advanced in that case. ” No question of volenti non fit injuria arises here,
” since the joint decision of the two men did not amount to an agreement”.
See the statement of the argument on p. 665 of the report in 1953 Appeal
Cases. Rightly or wrongly both sides seem to have proceeded upon that view
because nothing more was said on the subject. But it has also to be
remembered that the employers in that case had themselves been found, in
the Court of Appeal, to have been in breach of their statutory duty: and
although your Lordships did not find it necessary to determine whether
they were or were not, this feature of the case may well have discouraged
Gypsum Mines Ltd. from raising the defence of volenti etc. having regard
to the decisions in Baddeley v. Earl Granville [1887] 19 Q.B.D. 423 and
Wheeler v. New Merton Board Mills Ltd. [1933] 2 K.B. 669. These were
to the effect that the defence is not open to an employer who has been guilty
of a breach of statutory duty causing the relevant injury.
In the present case no question of such a breach by the Appellant
employer arises. They did nothing wrong. The duty to test from shelter
is laid upon the shot firers themselves. George himself was well aware
of his duty in this respect, and must have known of the reason for the
rule, namely, the risk of premature explosion. When he asked James
whether they should proceed to test, notwithstanding that they were both
in the open, and obtained his agreement to that course, they were voluntarily
accepting this known risk with their eyes open. Against this view of the
matter it is argued for the Respondent that though he knew of the risk,
he knew it also to be a remote one, and never dreamed that it would
mature; and that to be affected by the plea of volenti etc. he must be
aware of the exact extent of the danger. I cannot accept this argument.
George did know the extent of the risk, namely, that it was very remote
What he did not know, of course, was whether the risk would mature. But
whoever does? The argument really is this: ” I didn’t think it would happen
15
” to me “. This is not an answer, once the risk is known, and understood,
and accepted.
Next it is argued that for the defence based on the plea to succeed, it
must be shown that there was no kind of pressure on George to accept the
risk, but that it was his free and voluntary act. In the present case that
was not so, it is said, because of the pressure represented by the willingness
of James to help to carry out the test in the open. But what James did
was to accept George’s invitation so to test in the open and thereafter to
co-operate. I cannot regard this as affecting George’s complete freedom
of choice in the matter. He remained perfectly free to change his mind.
The substantial question which this defence raises is whether two work-
men each being under a particular statutory duty can agree with each other
to waive the consequences to themselves resulting from their joint breach
of it, so that if injury results to them, neither can effectively claim damages
against the other.
In Baddeley v. Earl Granville [1887] 19 Q.B.D. 423 it was held that an
employer could not plead that a workman had agreed to a breach of statutory
duty on his part, and that therefore his widow was debarred from claiming
damages for her husband’s consequent death. This decision was followed,
it would seem not enthusiastically, in Wheeler v. New Merton Board Mills
Ltd. [1933] 2 K.B. 669. I think these decisions were right, on the ground
that it would be contrary to public policy to allow an employer to contract
out of duties which Parliament had specifically imposed upon him in the
interest of the safety of his workmen. The two parties to such a contract
would normally bargain from very unequal positions of strength. The
position is different as between two employees themselves. If they are
injured in consequence of their own breach of statutory duty, there would
perhaps be no harm in letting them sue each other despite their prior
agreement to run the risk. But the matter does not stop there. If the
decision of the courts below is right, the workmen concerned proceed to
visit the consequence of their own offences upon an innocent third party.
Thus in the present case George has secured judgment for £1,500 against
the Appellants who admittedly did nothing wrong themselves, but on the
contrary fulfilled their own statutory duties. And your Lordships were
informed that a corresponding claim by James is in the offing. Thus the
position is reached that if a workman is minded to commit an offence
against a statutory regulation, he should avoid doing it alone for then he
will recover nothing if he is injured in consequence. To make sure that
he recovers damages (albeit reduced because of his own conduct) he must
procure some fellow workman to commit the offence as well. Considera-
tions of public policy then work the other way: for if this situation were to
obtain not only would the efficacy of the Regulations be sensibly diminished,
but the wholly unjust result would ensue that an innocent third party was
made to compensate the injured offenders.
When George invited James to join him in testing the electrical circuit
without taking shelter George knew the risk he was running and accepted
it voluntarily. He did not, of course, in express language, waive such rights
as he might have against James if the risk matured and he was injured.
But in my opinion that must be taken to be the tacit effect of the agreement
between the two of them to test the circuit in the open. The situation
lacks nothing of the elements necessary to support the plea of volenti non
fit injuria. Each knew the risk he ran: each accepted it quite voluntarily.
Had George sued James for damages in respect of his injury, James could
have replied successfully that in these circumstances there was no injuria
on his part vis-à-vis George. If that be so, then there is nothing for which
the Appellants are vicariously liable towards George. For these reasons I
think the courts below were not constrained to hold the Appellants liable in
damages and I would allow the appeal.
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