Volenti non fit injuria

There was a time employees who were injured at work were unsuccessful if they attempted to obtain compensation by suing their employers. Dr Albert Mushai, Professor Robert Vivian and BCom Honours student Sekitla Segowa take a look at the origin of the volenti non fit injuria defence in occupational injury claims

As the limited nature of common law remedies became apparent, the United Kingdom (UK) parliament attempted to improve the position of injured workers. They first tried to reform the common law. This tactic was abandoned, however, in favour of the then German approach of making compensation payable in terms of worker’s compensation.

Employees were thus placed in a better position than the general public. By the 1900s, in line with the general public’s mood, the courts began to adapt the common law. This move could be a source of confusion for two reasons.

First, the common law could become increasingly complex as a social-purpose instrument. Secondly, since compensation became available in terms of worker’s compensation, it would be unclear what the social purpose through the common law was supposed to be.

The volenti non fit injuria (or “voluntary assumption of the risk”) defence, however, hampered employees’ ability to claim compensation in terms of the common law.

The logic suggests that, for example, a person who entered a boxing competition couldn’t lay a charge of assault against his opponent afterwards because his opponent hit him. It would simply be argued that he had no case, because he consented to being hit.

Initially the defence of volenti non fit injuria was vigorously applied in occupational injury cases but, by the early 1900s, the UK courts began tempering the defence. This can be illustrated by the case of Smith v Charles Baker & Sons, 1891, AC 325 HL.

Joseph Smith was employed to create a railway line cutting. His function was to hold a drill in place while two fellow workmen struck it with hammers. Another team was responsible for the removal of large stones from the cutting. These were removed with the aid of a steam-driven crane.

The crane would then lift the stones out of the cutting. Sometimes the stones passed over the place where Smith and his fellow workers were working. On one occasion a stone slipped from the crane and fell upon Smith, seriously injuring him. He then sued his employer.

Strangely, the question of negligence was never raised. Thus, no evidence was gathered to the factual operation of the crane nor the manner in which the stone was secured, or even why it slipped from the crane.

The matter progressed through the courts. The Court of Appeal dismissed his claim and the matter progressed to the House of Lords, the UK’s highest court at the time. The only objection that was raised (to Smith being compensated) was that he had voluntarily undertaken the risk.

The lead judgement, in the House of Lords, was delivered by the famous Lord Halsbury. The argument was that Smith knew the operation was dangerous. He himself had said (in the lower courts) that it was a dangerous operation.

His fellow employees had said that it was a dangerous operation. The supervisor even told them that, when the stones are moved overhead, they should get out of the way because it was a dangerous operation.

Therefore, the argument was that if everybody knew it was a dangerous operation and continued to work, they, like the boxer, had consented to run the risk of injury. Thus, if they were subsequently injured, they could not claim compensation.

Another argument stated that, if it was known to be dangerous, a worker voluntarily assumed the risk of injury and the cost of this was included in the worker’s wages.

So, Lord Halsbury indicated it was a case which involved the maxim volenti non fit injuria. He ruled in favour of Smith, however, reversing the decision of the Court of Appeal. In his view, Smith had not consented to the risk of injury. Knowledge that a risk exists is not the same as consenting to run the risk of injury.
Lord Halsbury’s judgement was not followed by Lord Bramwell, in the House of Lords, who ruled against Smith. But it is within Lord Bramwell’s judgment that some very interesting statements are to be found.

He started with a clear statement that, in his view without any regard for any other legal merits, Smith clearly did not have a claim in law or morality against his employer.

He, however, continued: “I am not certain it would not be a good thing to give a person injured as the plaintiff was a right to compensation, perhaps from the State, even where there was no blame in the master; even where there was blame in the servant. Men would not wilfully injure themselves, and then compensation would be a part of the cost of the work.”

Although he did not believe the injured worker had a claim in the common law, he believed a state fund should be established to compensate injured workmen. The contributions to that fund should be seen as a cost of doing business.

It was an extraordinary statement, well ahead of its time. He was advocating a no-fault compensatory fund apart from the common law. By ruling that Smith had no claim in the common law he was making it clear that compensation in terms of the common law and worker’s compensation were two different things, not to be confused.

The other judges did not agree with Lord Bramwell but sided with Lord Halsbury, and the ruling went in favour of Smith. The scope of the defence volenti non fit injuria was thus narrowed. Six years after the judgement worker’s compensation was introduced, but without the state establishing a state fund. The absence of the state fund would create the confusion that exists to this day.

The proper role of consent in law has not been settled, not even 100 years after Smith v Baker. A host of cases are still heard on the matter in the UK courts – not merely applying the law but still debating the law itself.

Recent cases include: Diamond v Royal Devon and Exeter NHS Foundation Trust [2019] EWCA Civ 585; Duce v Worcester Acute Hospitals NHS Trust [2018] EWCA Civ. 1307; Bayley v George Eliot Hospital [2017] EWHC 3398; Montgomery v Lanarkshire Health Board [2015] 1 AC 1430; [2015] UKSC 15, among others.

Fortunately, these no longer involve occupational injuries – the focus has moved to medical injuries.

Published by

Albert Mushai

Legally Speaking is a regular column by Albert Mushai from the school of Economics and Business Sciences, University of the Witwatersrand. Mushai holds a master’s degree from the City University, London, and was the head of the insurance department at the National University of Science and Technology in Zimbabwe before joining the University of the Witwatersrand as a lecturer in insurance. 
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