Tort Law

Smith v. Charles Baker & Sons

[1891] AC 325

Facts

• Smith was employed by Charles Baker & Sons in constructing a railway cutting.
• His work required him to drill holes in rock at the bottom of the cutting.
• Stones excavated from the cutting were lifted by a crane and carried overhead in a sling.
• The crane frequently moved heavy stones above the workers stationed below.
• Smith knew that stones were being transported over his working area and understood that the practice involved danger.
• Whenever he noticed a stone passing overhead, he attempted to move out of its path.
• On the day of the accident, Smith was working under the direction of a superior and concentrating upon the drilling operation.
• A stone being carried by the crane fell from the sling and seriously injured him.
• Smith sued his employers for failing to provide a reasonably safe system of work.
• The employers argued that Smith knew of the risk and continued working. They relied upon the defence of volenti non fit injuria, meaning that no legal injury is done to a person who freely consents to the risk.

• Whether Smith’s knowledge of the dangerous working practice amounted to voluntary acceptance of the risk.
• Whether continuing to work under an employer’s instructions constituted free consent.
• Whether the employers breached their duty to provide a reasonably safe system of work.

• An employer must take reasonable care to provide:
o safe equipment;
o competent employees; and
o a reasonably safe system of work.
• The defence of volenti requires more than knowledge of danger.
• The defendant must prove that the claimant:
o fully knew and appreciated the particular risk; and
o freely and voluntarily agreed to accept both the risk and the legal consequences of injury.
• Mere continuation in dangerous employment does not necessarily amount to consent.
• A worker may accept that a danger exists without agreeing that the employer will bear no responsibility for negligently exposing him to it.
• Consent must be genuine and voluntary rather than produced by economic pressure, obedience to instructions or lack of a practical alternative.

• Smith clearly knew that stones sometimes passed above him.
• His efforts to move whenever he saw a load showed awareness of the danger.
• However, awareness did not establish that he agreed to relieve his employers of their duty of care.
• Smith was working where his employer directed him to work.
• He did not control:
o the operation of the crane;
o the manner in which stones were secured;
o the timing of their movement; or
o the decision to carry them above the workers.
• Refusing to continue might have placed his employment at risk. His decision to remain at work was therefore not equivalent to freely choosing a recreational danger.
• The fact that Smith tried to avoid the stones also contradicted the suggestion that he willingly accepted the possibility of being struck.
• A reasonable employer could have adopted safer arrangements, such as preventing loads from being moved directly over workers or providing an effective warning system.
• The unsafe system exposed Smith to a danger created and controlled by the employers.
• The House of Lords distinguished between:
o accepting employment while knowing that danger exists; and
o consenting to bear the risk of the employer’s negligence without compensation.
• Only the second would establish volenti, and it was not proved.

• The House of Lords held Charles Baker & Sons liable for Smith’s injuries.
• Smith’s knowledge of the dangerous practice did not amount to voluntary acceptance of the legal risk.
• He had not freely agreed that the employers could expose him to unsafe overhead loads without responsibility.
• The employers breached their duty by maintaining an unsafe system of work.
• The decision established that knowledge of risk is not the same as consent to risk.