Smith v Baker & Sons (1891)

Law of Torts · General Defences

Facts.

A workman was employed to drill rock in a cutting. A crane repeatedly swung stones over his head. He knew of the danger and had complained about it, but continued working. A stone fell and injured him.

Issue.

Does a workman who knows of a risk and continues in the employment thereby consent to run it?

Held.

No. The House of Lords held that volenti non fit injuria requires proof that the plaintiff agreed to bear the risk, not merely that he knew of it. Continuing in employment under economic pressure is not free consent.

Why it matters.

It is the foundation of the modern law on consent, the source of the volenti/scienti distinction, and the case that decides the drunk-driver and dangerous-workplace problems.

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