“Mere knowledge of risk does not constitute voluntary assumption of risk (volenti non fit injuria)”
The plaintiff was employed by the defendants in a railway cutting. His work required him to drill holes in rock. A crane regularly swung stones over his head. The plaintiff knew of this danger and had complained about it. While working, a stone fell from the crane and injured him. The defendants raised the defence of volenti non fit injuria, arguing he had voluntarily assumed the risk by continuing to work.
Does an employee who continues to work with knowledge of a danger thereby voluntarily assume the risk of injury, defeating a negligence claim?
The House of Lords held that the defence of volenti non fit injuria did not apply. Mere knowledge of danger and continuing to work does not constitute voluntary assumption of risk. The appeal was allowed (Lords Herschell, Watson, and Bramwell dissenting on some points).
The House of Lords distinguished between mere knowledge of risk and voluntary assumption of risk. For the defence of volenti to succeed, there must be evidence that the plaintiff freely and voluntarily agreed to accept the risk, absolving the defendant of legal duty. The relationship of employer and employee itself negates true freedom of choice - the employee needs to earn wages and cannot be said to freely consent to dangers merely by continuing employment. Knowledge of danger does not equal consent to injury. The maxim volenti non fit injuria requires a true agreement to waive legal rights, not mere awareness of risk. An employee who protests about danger but continues working out of economic necessity has not voluntarily assumed the risk. The defendant remains under a duty to take reasonable care despite the employee's knowledge.
This case established the important principle that volenti non fit injuria requires genuine voluntary agreement to assume risk, not mere knowledge. It is particularly significant in employment law, recognizing the unequal bargaining position of employees.
Lord Herschell suggested that in some circumstances, particularly outside the employment context, knowledge and voluntary exposure to obvious risks might establish the defence, but the employment relationship made this inapplicable here.
OSCOLA Citation
Smith v Charles Baker & Sons [1891] AC 325 (HL)
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