Smith v Baker & Sons (1891)
Areas of applicable case law: Tort law – Employment law – Negligence – Vicarious liability
Main arguments in this case: Volenti non fit injuria (Latin “No injury can be caused to a person who is willing to take it; or, a person who consents to injury cannot be harmed). This argument is often used as a defence in a tort claim and assumes if the claimant was aware of a danger and later gets injured by it, he will have no claim in tort.
The fact of the case: The claimant was employed in a quarry and was injured when a stone from the defendant’s crane, which was swinging over the claimant’s head, hit him. The claimant knew that there was such risk existed in his employment, but he continued to work. He had raised this issue to the employer; however, nothing was done to eliminate the situation. After getting injured the claimant sued his employer and the employer defended himself on the basis of Volenti non fit injuria, i.e., that the employee was aware of the risk and therefore he voluntarily accepted the risk of injury.
The case was decided in favour of the claimant at trial and the defendant appealed. The Court of Appeal decided that the defence of Volenti non fit injuria existed in the case and the claimant had willingly accepted the risk by working continually. The claimant appealed against the decision to the House of Lords and the House of Lords decided in favour of the claimant saying that knowing the danger which existed in the job does not mean that it was a consent to accept the risk – and just because the claimant had continued to work was not in itself dangerous. Moreover, the claimant did not have much choice in the matter as all he could do was either work in the situation as it was or not to work and not have a job at all.