DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW
2011-12

FINAL PROJECT
STUDY OF BASICS OF CASE LAW

SMITH V. CHARLES BAKER & SONS

Submitted to:Submitted by:Mr.SHASHANK SHEKHAR

GAURAV KRISHNA

Asst.Professor (case law)

Roll no.61
Semester-I

ACKNOWLEDGEMENT
I would like to express my special thanks of gratitude
to my teacherMr.SHASHANK SHEKHARwho gave
me the golden opportunity to do this wonderful
project on the topic-CASE BRIEFE ON CASESMITH V. CHARLES BAKER & SONS, which also
helped me in doing a lot of Research and i came to
know about so many new things,I am really thankful
tohim.
Secondly i would also like to thank my seniors and
friends who helped me a lot in finishing this project
within the limited time.

CONTENTS

Introduction
case briefing
Statement of facts
Procedural history
Issues
Judgment
Representation
Order of the court
Conclusion

INTRODUCTION
Its chief purpose is to give guidance to the reader
on how to read a case in order to identify, extract,
and where necessary apply its ratio decidendi. All
those training for the Bar have in theory read many
cases at the academic stage, and do have learned
to do this. But you may not ever have given much
comprehensive thought to the process of reading a
case or to identifying exactly what the ratio of it is.
Also anecdotal evidence suggests that there are
some who have got by to a very large extent using
case books, which contain only digests of cases, or
simply by reading the headnote of a case, which
contains a short statement of what the reporter
considers to be its ratio, but which may or may not
be accurate, particularly after the case has been
interpreted by a court in a later case.

SMITH v. CHARLES BAKER & SONS1

CASE NO.:BAILII
Citation Number: [1891] UKHL 2

APPELLANT:JOSEPH SMITH (PAUPER)

RESPONDRNT:CHARLES BAKER & SONS

DATE OF JUDGMENT:21 JULY 1981

BENCH:Lord Halsbury L.C

Lord Bramwell
Lord Watson

Lord Herschell
Lord Morris
FACT:The plaintiff was employed by railway contractors
to drill holes in a rock cutting near a crane worked
by men in the employ of the contractors. The crane
lifted stones and at times swung over the plaintiff's
head without warning. The plaintiff was fully aware
of the danger to which he was exposed by thus
working near the crane without any warning being
given, and had been thus employed for months. A
stone having fallen from the crane and injured the
plaintiff, he sued his employers in the County Court
under the Employers Liability Act 1880.

ISSUE:1.Defence of "Volenti non fit injuria" was limited in

employee situations.
2. Whether the knowledge of the plaintiff in the
particular circumstances made it so
unreasonable for him to do what he did as to
constitute contributory negligence.

JUDGMENT: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.

According to LORD HALSBURY LC:That in order to defeat a plaintiff's right by the

application of the maxim relied on,who would
otherwise be entitled to recover, the jury ought to
be able to affirm that he consented to the
particular thing being done which would involve
the risk, and consented to take the risk upon
himself. It ismanifest that if the proposition which I
have just enunciated be applied to this case, the
maxim could herehave no application. So far from
consenting, the plaintiff did not even know of the
particular operation thatwas being performed over
his head until the injury happened to him, and

consent, therefore, was out ofthe question.As I

have intimated before, I do not deny that a
particular consent may be inferred from a general
courseof conduct. Every sailor who mounts the
rigging of a ship knows and appreciates the risk he
isencountering. The act is his own, and he cannot
be said not to consent to the thing which he
himself isdoing. And examples might be indefinitely
multiplied where the essential cause of the risk is
the act of thecomplaining plaintiff himself, and
where, therefore, the application of the maxim,
Volenti non fit injuria, iscompletely justified.
treated the question apart from the specific
findings by the jury. But I am not disposed tothink
that those findings were not justified upon the
evidence presented. They found that the
machineryfor lifting the stone from the cutting was
not reasonably fit for the purpose for which it was
applied, taken as a hole. I think the jury meant
and if they did so mean, I am of opinion that they
were rightthat,looking to the risk incurred by the
men working below and to the possibility of the
crane when worked letting stones fall, the
machinery was not reasonably fit for the purpose
for which itwas applied, that is to say, not
reasonably fit for securing that stones should not
fall from it when slungover men's heads. And

further, that if with such machinery the stones

were being slung over men's heads,special warning
ought to have been supplied to the men imperilled
by such an operation, and that theemployers were
guilty of negligence in not remedyingsucha mode
of working such machinery undersuch conditions of
work. negligent mode of using perfectly sound
machinery may make the employer liable quite
apart from any ofthe provisions of the Employers'
Liability Act. In Sword v. C ameronit could hardly be
doubted that thequarryman who was injured by the
explosion of the blast in the quarry was perfectly
aware of the risk; but nevertheless he was held
entitled to recover notwithstanding that
knowledge.
It seems to me that in the present case the right of
the plaintiff to recover is far more clear than in
Swordv. C ameron. The interval given to the
quarryman to seek shelter was the usual and
ordinary one. But suppose in that case the
employer had employed the quarryman to do
something which by the very formof the
employment prevented his hearing the signal
which gave him warning to retreat? In this case, as
I
have pointed out, there was no warning and no
signal, but the employer or his representative
employedthe plaintiff under such circumstances as

disabled him from using his eyes for protecting

himself againstthe risk.
It seems to me, therefore, that this is a case in
which the plaintiff is entitled to recover, and I
thereforemoveyour Lordships that the judgment of
the C ourt of Appeal be reversed, and the judgment
of thecounty court judge restored.

According to LORD WATSON

In the present case no objection was made at the
trial on the part of the respondents that there was
no evidence upon which the jury could find there
was negligence on their part;
nay, more, in the notice of motion, by way of
appeal, in the Queen's Bench Division, no objection
was
taken that there was no evidence of negligence.
The question of law raised at the trial, both at the
close of the plaintiff's case in asking for a non-suit,
and at the close of the entire case in asking for
judgment, was, that the plaintiff having admitted
that he knew the risk and voluntarily incurred it,
the defendants were entitled to succeed. No
question of law was raised as to there being no
evidence to go to the jury to establish the
defendants' negligence.
The Court of Appeal decided the case upon a
question of law not taken at the trial. I can find no
reference in any of the judgments in the C ourt of

Appeal as to their competency to entertain and

decide upon a point not made at the trial, nor does
the case of C larkson v. Musgrave appear to have
been cited. It is an express decision, and one in
which I entirely concur, that it is a condition
precedent to the right of appeal that the question
of law upon which it is desired to appeal should
have been raised before the county court judge at
the trial. If the point, that there was no evidence of
negligence, had been made by the defendants at
the trial, I am of opinion they would be now
entitled to judgment; but, in my opinion,that point
is not now open, and the case must be dealt with,
assuming the findings of the jury as to the
negligence of the defendants
He worked for months, knowing there was no
special warner to caution him, but running his
chance of
getting out of the way, when the crane would
otherwise pass over his head. He was, in my
opinion, both sciens and volens as to all the danger
except that arising from unfit machinery. Of that
danger he was not aware. I more than doubt it
existed at all; but the right of appeal is a statutable
one: the respondents have not brought themselves
within the statute, in not objecting at the trial to
the want of any evidence to support the first
finding; while it stands, the maxim, Volenti non fit
injuria,appears inapplicable. How can the plaintiff
be held to voluntarily incur a danger from unfit

machinery, the unfitness of which he was

admittedly not aware of? The case of Thomas v.
Quartermainefor the same reason is no authority
for the respondents' contention.
In result, I am of opinion that the appellant is
entitled to succeed on the course the case has
taken, and with the limited right of review accorded
to the Divisional C ourt, to the C ourt of Appeal, or
to your Lordships' House.
According to LORD BRAMWELL:
There was no evidence of negligence in the
defendants causing the accident. There certainly
was none; but it is said this was not open to the
defendants. Lindley L.J. gives judgment
the same way; his judgment is of extra importance,
because it shews that Yarmouth v. France , relied
on for the plaintiff, is not, in the opinion of Lindley
L.J. who was party to it, against the defendants. His
Lordship says: -If people will enter into dangerous
employment, they do so without making other
people liable for injuries they sustain.I cite also his
Lordship's opinion to justify my own, that the jury
were led
away by sympathy, for they found matters that
were not in the least warranted by the evidence. I
think there was no evidence of negligence at all.
Lopes L.J. says the same. This case is clearly

within the decisions that have been pronounced in

the
C ourt below, and in this C ourt, in which it has
been held, and I think most properly held, that a
person who is engaged to perform a dangerous
operation takes the risk of the operation of the
work that he is called on to perform. As to that,
there never was any doubt before the Employers'
Liability Act, nor since.I think that is a very neat
and forcible way of putting it. He gives judgment
for the defendants also on another ground, viz.,
that there was no evidence of negligence in the
defendants causing the accident. There certainly
was none; but it is said this was not open to the
defendants. Lindley L.J. gives judgment
the same way; his judgment is of extra importance,
because it shews that Yarmouth v. France , relied
on for the plaintiff, is not, in the opinion of Lindley
L.J. who was party to it, against the defendants. His
Lordship says: If people will enter into dangerous
employment, they do so without making other
people liable for injuries they sustain.I cite also his
Lordship's opinion to justify my own, that the jury
were led
away by sympathy, for they found matters that
were not in the least warranted by the evidence. I
thinkthere was no evidence of negligence at
all.Lopes L.J. says the same. This case is clearly
within the decisions that have been pronounced in
the

C ourt below, and in this C ourt, in which it has

been held, and I think most properly held, that a
person who is engaged to perform a dangerous
operation takes the risk of the operation of the
work that he is called on to perform. As to that,
there never was any doubt before the Employers'
Liability Act, nor since.he think that is a very neat
and forcible way of putting it. He gives judgment
for the defendants also on another ground, viz.,
that there was no evidence of negligence in the
defendants causing the accident. people will enter
into dangerous employment, they do so without
making other people
liable for injuries they sustain.I cite also his
Lordship's opinion to justify my own, that the jury
were led away by sympathy, for they found
matters that were not in the least warranted by the
evidence. I think there was no evidence of
negligence at all.

According to LORD MORRIS :The respondents in not supplying means of

warning when the stones were being jibbed, do not
avail thenplaintiff. He undertook a dangerous work
of drilling holes, while over his head (unless he

moved away) stones were being hauled by a crane.

That work he entered upon knowing it was
dangerous to that extent.
He worked for months, knowing there was no
special warner to caution him, but running his
chance of getting out of the way, when the crane
would otherwise pass over his head. He was, in my
opinion, both
sciens and volens as to all the danger except that
arising from unfit machinery. Of that danger he was
not aware. I more than doubt it existed at all; but
the right of appeal is a statutable one: the
respondents have not brought themselves within
the statute, in not objecting at the trial to the want
of any evidence to support the first finding; while it
stands, the maxim, Volenti non fit injuria, appears
inapplicable. How can the plaintiff be held to
voluntarily incur a danger from unfit machinery,
the unfitness of which he was admittedly not aware
of?
In result, I am of opinion that the appellant is
entitled to succeed on the course the case has
taken, and with the limited right of review accorded
to the Divisional C ourt, to the C ourt of Appeal.

REPRESENTATIONS

Solicitors for appellant:- J. H.

BridgfordforLongbottom& Sons, Halifax.
Solicitors for respondents:- Watson, Sons & Room
for Neill & Broadbent, Bradford.

ORDER OF COURT:Order of the Court of Appeal reversed and order of

the Queen's Bench Division restored: the
respondents to pay to the appellant the costs in
the Court of Appeal and the costs incurred by him
in respect of his appeal to this House, the costs in
this House to be taxed in the manner usual when
the appellant sues in form pauperis: cause remitted
to the Queen's Bench Division. Lords' Journals 21st
July 1891.

CONCLUSIONS:-

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
employee situations.
It is a question of fact in each case whether the
knowledge of the plaintiff in the particular
circumstances made it so unreasonable for him to
do what he did as to constitute contributory
negligence.
When a workman engaged in an employment not
in itself dangerous is exposed to danger arising
from an operation in another department over
which he has no control - the danger being created
or enhanced by the negligence of the employer the mere fact that he undertakes or continues 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. The question whether he has so
undertaken the risk is one of fact and not of law.
And this so both at common law and in cases
arising under the Employers Liability Act 1880

Obitor- Words of an opinion entirely unnecessary for the decision of the case. A remark made
or opinion expressed by a judge ina decision upon a cause, "by the way", that is, incidentally or
collaterally, and not directly upon the question before the court or upon a pointnot necessarily in
volved in the determination of the cause, or introduced by way of illustration, or analogy or argu
ment. Such are not bindingas precedent.s