Volenti Non Fit Injuria

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I.C.I. LTD. V. SHATWELL

citation: LGC-2012 (6/7/64)

House of Lords

Parliamentary Archives, HL/PO/JU/4/3/1119

Before Their Lordships

My Lords, I am satisfied that this is too narrow a view. The test was ajoint operation on the part both of James and George, and it matters not inthese circumstances whose hand it was that did the concluding act. Moreover,it would seem from the judgment of Elwes J. that a breach of Regulation27 (4) on the part of James was admitted at the trial. I think that such anadmission was rightly made.
It follows, on the facts of this case, and bearing in mind the decision hiStapley v. Gypsum Mines Ltd. that James’s breach must be treated as onecause of George’s injury.

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Between

employers are vicariously entitled) that George would not sue James for anyinjury that he might suffer, if an accident occurred. Had an officiousbystander raised the possibility, can one doubt that George would haveridiculed it? It was argued that there was not in George’s mind a sufficient appreciationof the risk to support the plea. The trial judge was clearly of opinion thatthere was. I do not see how he could have come to any other conclusionin view of the employer’s propaganda on this subject to all their shot firers.The men all knew of the risk. It was a very remote risk ; but this was theunlikely occasion on which a risk became an accident. The same result, so far as the breach of statutory duty is concerned, couldbe reached by accepting the reasoning of the High Court of Australia inDarling Island Stevedoring & Lighterage Co. Ltd. (97 C.L.R. 36) where itwas held that breach of a regulation laid on ” the person in charge ” asdefined by the regulations, did not create a vicarious liability on the employerof such person. It is not necessary to decide the point since the defenceof volenti non fit injuria in the present case absolves the Defendants. Itwas discussed but not decided in Harrison v. National Coal Board ([1951 ]A.C. 639) and in National Coal Board v. England ([1954] A.C. 403, see perLord Reid at 425). I prefer to reserve the matter for future consideration.I would also reserve the point which Lord Porter in Stapley v. GypsumMines Ltd. [1953] AC 663 at p. 675 described as ” elusive and difficult”,adding: ” It may be that in some future case your Lordships will Be con-” fronted with the difficulty of finding a solution “. I would allow the appeal. Lord Donovan my lords, The Respondent in this appeal was employed by the Appellant companyin 1960 as an experienced shot firer in their quarry at Tunstead. On the 28thJune in that year he was engaged as one of a team of three shot firers inplacing ex-plosives for the purpose of blasting operations in the quarry. Afterthe explosives had been placed in position and the detonators affixed, thedrill was to make what is called a ” continuity test “. There were some 50charges in position all connected by electric wiring. The firing would bedone by sending an electric current through this wiring. To verify thatthere was no break in the circuit a galvanometer was used. The two endsof the electric wiring would be brought into contact with the terminals onthe galvanometer with the result that an electric impulse would be imparted,insuffi-cient to explode the charges but sufficient to demonstrate by theoscillation of the galvanometer needle that the cir-cuit was unbroken. Regulation 27 (4) of the Quarries (Explosives) Regulations, being Statutorylnstrument No. 2259 of 1959, requires all such testing to be done from propershelter. The words are these: - ” No shot firer shall fire any round of shots connected in series at a” quarry by means of electric shot firing apparatus unless he has tested” the circuit for continuity by means of a suitable testing device and” has found it to be satisfac-tory. A shot firer shall not make” any such test unless all persons in the vicinity have withdrawn to a” place of safety and he himself has taken proper shelter.” In order to enable the continuity test to be carried out in accordancewith this regulation one of the team of shot firers named Beswick went offto et a loner cable so that the test could be carried out from • roser shelter.He would have …………………….O……………………. been away about ten minutes. The other two shot firersremained at the scene. They were the Respondent and his brother, also anexperienced shot firer. Hereafter I will refer to the Respondent as ” George “and his brother as ” James “. When Beswick had departed George said toJames ” Must we test them? ” meaning in the local idiom ” Shall we test” them? ” James replied ” Yes “. The two then proceeded to carry out acontinuity test in the open without retir-ing to shelter. The first test, whichwas a single test of the whole circuit, showed that there was a faultsomewhere in it. George and James then proceeded to test each detonatorseparately. Again they did not retire to shelter but brought two wires leadingfrom the first detonator to the galvanometer and with them George touchedthe terminals of the gal-vanometer. The charge exploded and George andJames were injured, George seriously. Both George and James in doing what they did were clearly and admittedlyin breach of regulation 27 (4). In due course, George brought the presentaction against the Appellants, contending that he had been injured as aresult of James’s negligence and breach of statutory duty and for that injurythe Apellants as James’s employers were vicari-ously responsible. Mr. Justice Elwes gave judgment for the Respondent but reduced hisdamages by one-half to take account of his own contributory negligence. TheCourt of Appeal upheld his judgment. Both courts expressed the opinion thatthe result was unjust but held themselves constrained to find in favour of theRespondent by the decision of this House in Stapley v. Gypsum Mines Ltd.[1953] AC 663. The decision in that case was essentially a decision upon causation. Daleand Stapley were both guilty of a breach of statutory duty and of negligenceby reason of their joint decision to carry on working without first bringingdown the dangerous roof. The consequences fell wholly upon Stapley, whowas killed while working under the roof while Dale, in pursuance of hisduties, had for the moment to be elsewhere. The controversy in thesecircumstances was whether Dale’s breach of statutory duty and his negligencecould be treated as a cause of Stapley’s death, although Stapley himself wasguilty of the like breach and the like negligence. This House held, by amajority, that they could. 14 Causation must, primarily, be a question of fact; but nevertheless a ques-tion of law was in my opinion also decided by the case, namely, whether aworkman who is injured in consequence of a breach of statutory duty andof negli-gence of which both he and a fellow workman are together guilty isprecluded from contending that his fellow work-man’s breach and negligencewas a cause of the ensuing injury. It was held that he was not so precluded. In the present case, therefore, the contention was open to George, butthat by no means concludes the matter. It could still be defeated by theAppellants if they were able to show- (a) that there was indeed no breach of statutory duty or negligence at all on the part of James: or (b) that even if there were, George had agreed to run the risk of any consequent injury, and could not therefore found upon James’sbreach or negligence as he must be able to do if the Appellant

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