Smith v. Baker & Sons

CASE NAME: Smith v. Baker & Sons

COURT: United Kingdom House of Lords (UKHL)

YEAR: 1891

CITATION: (1891) AC 325 (HL)

NAMES OF JUDGES: Lord Watson, Lord Morris, Lord Bramwell, Lord Herschell, Lord Halsbury, L.C.

DATE OF JUDGEMENT: 21 July 1891

INTRODUCTION

The doctrine of “volenti non fit injuria” which directly translates in Latin to mean “to a willing person, injury is not done”[1], is a Roman legal maxim and common law doctrine which is one of the major, principal defences of the tort of negligence.

It simply means that a person cannot enforce a right he has voluntarily waived or abandoned. Consent is a key factor and a pillar of this defence. Hence, it can only be deemed complete where the defendant succeeds in establishing that the plaintiff had knowledge of the risk involved in an undertaking and with that knowledge, voluntarily agrees to assume the risk.

The 1891 landmark case of Smith v. Baker & Sons[2] explored the limitation of the doctrine of “volenti non fit injuria”, thereby stamping the premise that simply being aware of some risk does not equate to one consenting to the same risk. This limitation is supported by the legal maxim “scienti non fit injuria[3] that translates to mean “mere knowledge does not imply consent to take risk”.

PARTIES INVOLVED

Plaintiff/Claimant: Mr. Smith, an employee in the defendant company.

He was employed by the railway constructor company, Baker & Sons at a rock-cutting site where his role involved holding a drill steady while two other workers alternately struck the drill with a hammer, close to a crane operated by the construction men of the same company.

Defendant: Baker & Sons, the railway contractor company and employers of Mr. Smith, the plaintiff/claimant.

FACTS OF THE CASE

In the case of Smith v. Baker & Sons, Mr. Smith was employed by a railway company to drill into a rock near a crane operated by the same company. The crane was used for lifting stones, which were occasionally swung overhead, creating a risk of injury for those working below. Smith was completely aware of the dangers associated with working close to the crane and understood that stones could fall.

On a particular occasion, a stone fell from the crane and hit Smith, resulting in serious injuries. Even though he was conscious of the risks from the overhead crane, there had been no specific warnings about stones being swung directly above him. Additionally, another worker had previously expressed concerns about this situation, but no steps were taken to address the danger.

Following his injury, Smith filed a lawsuit against his employer for negligence under Employers’ Liability Act 1880[4], which has since been repealed. During the trial held in the County Court, the defendant’s counsel argued that the plaintiff had willingly participated in the work, acknowledging his awareness of the associated risks. The jury determined: (1) that the machinery used for lifting the stones from the cutting, when considered as a whole, was not sufficiently fit for the purpose intended; (2) that the failure to provide warning measures during the “jibbings” of the stones constituted a flaw in the ways, works, machinery, and site; (3) that the employers or certain individuals they employed to oversee these issues were negligent in failing to correct the defect; and (4) that the plaintiff was not found to be contributorily negligent and had not voluntarily accepted a risky job with an understanding of and assent to its dangers.The County Court found in favor of Smith, concluding that his employer was responsible for the injury, while damages were evaluated at 100 Euros.

The defendant however appealed this decision, taking it to the Queen’s Bench Division and then, the Court of Appeal which reversed the ruling and held that there was no evidence of negligence, that is, the Plaintiff assumed the risk of his own volition. Smith subsequently appealed this decision to the House of Lords, which by majority: Lord Halsbury L.C., Lord Watson, Lord Herschell and Lord Morris, ultimately overturned the ruling of the Court of Appeal and reinstated the decision of the County Court, with Lord Bramwell’s dissent.

ISSUES RAISED

1. Whether the principle of “volenti non fit injuria” is relevant when the plaintiff (Smith), who understands a possible risk, chooses to continue working in spite of the threat?
2. Whether the defendant (Baker & Sons) can escape liability for negligence by arguing that the plaintiff’s ongoing work signifies acceptance of the associated risks?

ARGUMENTS OF THE PARTIES

PLAINTIFF/CLAIMANT’S ARGUMENTS:

1. The argument regarding “no evidence” was not brought up during the trial and cannot be considered on appeal in accordance with the County Courts Act 1888[5]. The plaintiff’s counsel relied on the provisions of the legislation.
2. The awareness of danger does not equate to consent; the plaintiff did not agree to the particular risk of stones being swung above them unexpectedly. The rule in Membery v Great Western Railway Co.[6] was employed to establish that knowledge of risk by an employee does not necessarily mean consent, especially if the employee had no real choice but to continue working, just like in Smith’s case. He only kept on working out of necessity, not consent.
3. The defendant upheld a negligent working procedure as the crane was operated in a manner that posed a risk to individuals below, warnings were absent, and safer options were accessible.

DEFENDANT’S ARGUMENTS:

1. There was inadequate proof of negligence; the stone’s fall is simply a “pure accident”.
2. If there had even been an instance of negligence, the plaintiff was fully aware of and willingly accepted the risk, thus employing the principle of “volenti non fit injuria” in this case as it was was applied in the case of Thomas v. Quartermaine[7]. Hence, placing its main reliance in the earlier case and arguing that the plaintiff, Smith was aware of the risk involved in the work and voluntarily assumed the risk.
3. The defendant further relied on the rule in the 1877 case of Woodley v Metropolitan District Railway Co[8] in which it was held in favour of the defendant that where a worker continues to work in hazardous conditions after recognizing them, he is assumed to have agreed to that risk.
4. The defendant also argued that the jury’s conclusions lacked proper support and was wrongly swayed by sympathy.

JUDGEMENT

SUBORDINATE COURTS JUDGEMENTS

In the County Court, the jury ruled in favor of Smith, determining that the employer had not fulfilled its obligation to maintain a safe workplace, and granted Smith compensation. Nonetheless, the defendants (the employers) challenged this ruling in the Court of Appeal.

The Court of Appeal overturned the County Court’s ruling, asserting that Smith’s knowledge of the dangers associated with the overhead crane constituted consent according to the principle of “volenti non fit injuria”. The Court of Appeal concluded that by choosing to work in a hazardous environment, Smith had implicitly accepted the risk of injury, thereby absolving the employer of liability for the incident.

Smith then appealed this ruling to the House of Lords.

JUDGEMENT OF THE HOUSE OF LORDS

The primary legal issue considered by the House of Lords was whether understanding a risk, in the absence of explicit consent, can prevent a negligence claim. The House of Lords found in favor of Smith, reversing the earlier decision made by the Court of Appeal, and reinstating the County Court’s finding that the employer was negligent. In the words of Lord Halsbury, L.C., “So far from consenting, the plaintiff did not even know of the particular operation that was being performed over his head until the injury happened to him, and consent, therefore, was out of the question.[9]”

Lord Herschell also affirmed thus: “I cannot assent to the proposition that the maxim, volenti non fit injuria applies to such a case, and that the employer can invoke its aid to protect him from liability from his wrong. I think the judgement of the court below in the case now before your Lordships ought to be reversed and judgement for the plaintiff restored.[10]”

The overall judgement emphasized that for the “volenti non fit injuria” defence to be applicable, consent must be clear and voluntarily given. Simply being aware of a risk, even if fully comprehended by the employee, is inadequate for establishing consent, particularly if such awareness does not involve an active acceptance of the risk.

By majority: Lord Halsbury L.C., Lord Watson, Lord Herschell and Lord Morris, the ruling of the Court of Appeal was eventually overturned while the House of Lords reinstated the decision of the County Court, with Lord Bramwell’s dissent.

LEGAL REASONING/RATIO DECIDENDI

In delivering the judgment, Lord Halsbury, L.C. made it clear that mere awareness of a risk does not mean there is consent. He noted in consideration of how in the decisions“in both Thomas v. Quartermaine[11] and in Yarmouth v. France[12], it has been taken for granted that the mere knowledge of the danger will not do; there must be consent to the risk, freely given.” He further advanced that the application of the maxim “volenti non fit injuria” is not warranted by the facts of Smith v. Baker & Sons and that he did “not think the plaintiff did consent at all”.

Lord Herschell posited that “the maxim is founded on good sense and justice. One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong. The maxim has no special application to the case of employer and employed, though its application may well be invoked in such a case”[13].

 The employer’s duty of care for the employees was examined as it was said to be “…quite clear that the contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk.[14]”

CONCLUSION

Decisively, the House of Lords ruling in Smith v Baker & Sons clearly established that an employee’s simple awareness of workplace hazards does not equate to free and voluntary acceptance of risk under the defense of “volenti non fit injuria”.

This case highlighted the principle that employers have an ongoing obligation to ensure a safe working environment, and they cannot evade liability by placing the burden on workers who are forced to confront risks due to economic pressures. It continues to serve as a key authority for limiting the applicability and defining the scope of the doctrine of “volenti” in employment or labour conditions and for reinforcing employee protections within the framework of the tort of negligence as a civil wrong.

Therefore, while acknowledging the relevance of this defense, the courts need to ascertain that its necessary criteria are fully met and that the action in question does not fall under the exceptions or limitations placed on its effectiveness.

REFERENCE(S):

1. Wikipedia, ‘Volenti non fit injuria’ <https://en.wikipedia.org/wiki/Volenti_non_fit_injuria> accessed 29 September 2025.
2. Smith v. Baker & Sons (1891) AC 325 (HL)
3. JusCorpus, ‘Analysing The Defences Of Torts Law: VolentiI Non-Fit Injuria And Scienti Non-Fit Injuria’ (2024) <https://www.juscorpus.com/analysing-the-defences-of-torts-law-volenti-non-fit-injuria-and-scienti-non-fit-injuria/> accessed 29 September 2025.
4. Employers’ Liability Act 1880 (43 & 44 Vict. c. 42)
5. County Courts Act 1888 (51 & 52 Vict. c. 43)
6. Membery v Great Western Railway Co. 1889
7. Thomas v. Quartermaine (1887) 18 QBD 685
8. Woodley v Metropolitan District Railway Co. (1877) 2 ExD 384
9. My Legal Partner, ‘Law Of Torts: Smith v. Charles Baker & Sons’ (2018) <https://mylegalpartner.wordpress.com/2018/01/03/smith-v-charles-baker-and-sons/> accessed 29 September 2025.
10. Yarmouth v. France [19 Q.B.D. 647]

⁕ Precious Inioluwa Adedokun, LL.B. (Obafemi Awolowo University, Ile-Ife Nigeria), AICMC. adedokunprecious0@gmail.com. +234 814 225 9051

[1] Wikipedia, ‘Volenti non fit injuria’<https://en.wikipedia.org/wiki/Volenti_non_fit_injuria> accessed 29 September 2025.

[2]  Smith v. Baker & Sons (1891) AC 325 (HL)

[3] JusCorpus, ‘Analysing The Defences Of Torts Law: VolentiI Non-Fit Injuria And Scienti Non-Fit Injuria’ (2024) <https://www.juscorpus.com/analysing-the-defences-of-torts-law-volenti-non-fit-injuria-and-scienti-non-fit-injuria/> accessed 29 September 2025.

[4] Employers’ Liability Act 1880 (43 & 44 Vict. c. 42)

[5] County Courts Act 1888 (51 & 52 Vict. c. 43)

[6] Membery v Great Western Railway Co. 1889

[7] Thomas v. Quartermaine (1887) 18 QBD 685

[8] Woodley v Metropolitan District Railway Co. (1877) 2 ExD 384

[9] My Legal Partner, ‘Law Of Torts: Smith v. Charles Baker & Sons’ (2018) <https://mylegalpartner.wordpress.com/2018/01/03/smith-v-charles-baker-and-sons/> accessed 29 September 2025.

[10] Ibid.

[11] Ibid.

[12]  Yarmouth v. France [19 Q.B.D. 647]

[13] Ibid.

[14] Ibid.