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1887 Aug. 11.
19 Q.B.D. 647
BEFORE THEIR LORDSHIPS
LORD ESHER, M.R.
LINDLEY and LOPES, L.J.
Wood Hill, for the defendant:-
Solicitor for plaintiff: H. R. Newson.
Solicitors for defendant: Dawes & Sons.
EMPLOYMENT AND LABOUR LAW: Negligence – Employer and Workman – Driver employed by Wharfinger injured in the course of employment by a work-horse – Applicability of Employers’ Liability Act, 1880 (43 & 44 Vict. c. 42) – Effect – Vicious Horse used in the course of work- Whether risk voluntarily incurred and thus covered under Volenti non fit Injuria
TORT AND PERSONAL INJURY LAW: Injury in the course of employment – liability of employer – risk voluntarily incurred – relevant considerations
HISTORY AND SUMMARY OF FACTS
In an action to recover compensation under the Employers’ Liability Act, 1880, it appeared that the plaintiff was in the employment of the defendant, who was a wharfinger, and for the purposes of his business the owner of carts and horses. It was the duty of the plaintiff to drive the carts and to load and unload the goods which were carried in them. Among the horses was one of a vicious nature and unfit to be driven even by a careful driver. The plaintiff objected to drive this horse, and told the foreman of the stable that it was unfit to be driven, to which the foreman replied that the plaintiff must go on driving it, and that if any accident happened his employer would be responsible. The plaintiff continued to drive the horse, and while sitting on his proper place in the cart was kicked by the animal, and his leg was broken:-
Held, by Lord Esher, M.R., Lindley, L.J., and Lopes, L.J., sitting as a Divisional Court, that the plaintiff was a “workman” within the definition in s. 8 of the Act:-
Held, by the majority of the Court, Lord Esher, M.R., and Lindley, L.J. (Lopes, L.J., expressing no opinion), that the horse which injured the plaintiff was “plant” used in the business of the defendant, and that the vice in the horse was a “defect” in the condition of such plant, within the meaning of s. 1 of the Act:-
Held, by the majority of the Court, Lord Esher, M.R., and Lindley, L.J. (Lopes, L.J., dissenting), that upon the facts a jury might find the defendant to be liable, for there was evidence of negligence on the part of his foreman, and the circumstances did not conclusively shew that the risk was voluntarily incurred by the plaintiff.
Thomas v. Quartermaine (18 Q. B. D. 685) distinguished.
By Lopes, L.J., dissenting, that there was no evidence for the jury of the defendant’s liability, inasmuch as the facts shewed that the plaintiff, with full knowledge of the risk to which he was exposed, had elected to continue in the defendant’s employment.
ACTION under the Employers’ Liability Act, 1880 (43 & 44 Vict. c. 42), tried in the City of London Court, without a jury. The facts were as follows:- The plaintiff was in the employ of the defendant, a wharfinger and warehouseman in London. He had the care of a horse and trolley, part of his duty being to load the trolley and to unload and deliver goods to the consignees, and to return with the trolley to his employer’s premises, and there stable the horse. He had been so engaged for about four years. In August, 1886, the defendant bought a new horse, which was placed under the plaintiff’s control by the defendant’s stable-foreman, Tomlin. The plaintiff found that the animal was vicious, – a kicker and a jibber, – and altogether dangerous and unfit to be driven; and he repeatedly complained of it to Tomlin, who had the general management and control of the defendant’s horses, telling him that he objected to drive so unsafe an animal. Upon these occasions Tomlin’s answer was, “Go on; you must keep driving;” adding, “if you meet with an accident, we shall have to stand responsible for that.” The plaintiff went on driving the horse until the 12th of November, when, whilst sitting on the fore part of the trolley (the only place provided for the driver’s seat), with his legs hanging down, the horse, without (as the plaintiff swore) any provocation, kicked out and broke one of his legs. There was no evidence that the plaintiff had ever complained to the defendant himself, or that the complaints he made to Tomlin had ever been made known to the defendant.
It was objected on the part of the defendant, that the evidence disclosed no cause of action under the Employers’ Liability Act; that the plaintiff was not a “workman,” nor was the horse “plant,” within the Act; that the plaintiff had been guilty of contributory negligence; and that, having continued to drive the horse after he became aware of its vicious character, he must be taken to have assented to incur the risk of accident therefrom (citing Thomas v. Quartermaine.
The judge held that the plaintiff was a “workman,” and that the horse was “plant” within the Act: but he further held, upon the authority of Thomas v. Quartermaine., that as the plaintiff continued to drive the horse after he had become aware of its vicious nature, he must be assumed to have assented to take upon himself the risk attending it; and he accordingly gave judgment for the defendant.
The plaintiff appealed, and the argument took place before Lord Esher, M.R., Lindley, L.J., and Lopes, L.J., sitting as a Divisional Court.
(1) 18 Q. B. D. 685.
First, the plaintiff was a “workman,” – a person engaged in manual labour, – within the definition given in s. 10 of the Employers and Workmen Act, 1875(1); secondly, the horse which caused the injury was “plant” within s. 1, sub-s. 1 of the Employers’ Liability Act, 1880; and, thirdly, that the plaintiff, having called the attention of the defendant’s foreman (under whose orders he worked) to the fact that the horse was dangerous and unfit to be driven, had brought himself within sub-s. 3 of s. 2, and was not disentitled to recover by reason of his having under the circumstances continued in his employment rather than risk dismissal for disobedience of orders. Thomas v. Quartermaine. (2) is distinguishable. There the plaintiff, knowing the dangerous condition of the premises, and making no complaint, might fairly be assumed to have assented to incur the risk incident to his employment. [He cited Paterson v. Wallace (3), and Clarke v. Holmes (4).]
Wood Hill, for the defendant:-
Cook v. North Metropolitan Tramways Co. (5) shews that a “driver” is not a workman within the Employers and Workmen Act, 1875, and consequently not entitled to the benefit of the Employers’ Liability Act, 1880; secondly, the term “plant” in s. 1, sub-s. 1, of the last-mentioned Act is confined to fixtures and other inanimate chattels used in a trade or business. But, even assuming that a horse could be considered to be “plant,” the case is governed by Thomas v. Quartermaine.(2) The plaintiff, if he objected to the risk involved in driving the horse, might have relinquished his employment. His reluctant assent to obey the orders of the foreman did not make him the less a free agent.
[He cited Woodley v. Metropolitan Railway Co.(2) 2 Ex. D. 384. per Cockburn, C.J.]
(1) 38 & 39 Vict. c. 90.
(2) 18 Q. B. D. 685.
(3) 1 Macq. 748.
(4) 7 H. & N. 937; 31 L. J. (Ex.) 356.
(5) 18 Q. B. D. 683.
(6) 2 Ex. D. 384.
In this case, the plaintiff was in the employment of the defendant, who was a wharfinger, and for the purposes of his business the owner of carts or trolleys and horses. Amongst these was a horse which was of an extraordinarily vicious nature and wholly unfit, so far as is stated to us, to be driven even by the most careful driver. The plaintiff objected to drive him, and told the foreman of the stable that the horse was unsafe to drive: whereupon the foreman said: “You have to drive him; and, if any accident happens, we (meaning the employer) will be responsible.” The plaintiff continued to drive the horse, and whilst so doing, sitting on a part of the trolley where it is said to be usual and not improper for the driver to sit, the horse kicked out and broke the plaintiff’s leg. The plaintiff thereupon sues the owner of the horse, his employer. The judge of the City of London Court did that which I believe many county court judges have done since the decision of the Court of Appeal in Thomas v. Quartermaine. (1) The moment it was proved before him that the plaintiff knew the horse to be vicious, but continued to drive him, the judge said it was useless to inquire further, for that alone disentitled him to recover, upon an application of what is called the maxim of Volenti non fit injuria. The judge acted upon the notion that that was the effect of the decision of the majority of the Court of Appeal in Thomas v. Quartermaine. (1): and, as I am given to understand, many county court judges have from the time that case was reported supposed that to be the effect of it. We are called upon now to say whether that is the true effect of the decision. My own position in the matter is extremely delicate, because I dissented from the decision of the rest of the Court. I thought, and, after mature consideration, I have still the strongest conviction, that, if that is really the effect of it, the decision in that case was absolutely wrong; but I hope I have loyalty enough to say, that, if I thought that the decision of the majority of the judges there did mean what the county court judges have supposed it to mean, I should at once bow to it. The question we have now to consider is, whether that was the real meaning of the majority, – whether the judgment was not to a less rigid effect than that, and whether it does not leave open certain questions which must still be tried.
(1) 18 Q. B. D. 685.
The first question here is, whether this case is within the Employers’ Liability Act at all. If it be not, then, according to the old law, if that Act had not existed, I have no doubt this plaintiff could not have recovered. He would have been a servant in the employment of the master, a part of whose machinery for carrying on his business was defective, – in such a state that it would be a culpable want of care for the safety of his servants on the part of the employer to permit a necessary part of the machinery for carrying on his business to remain. But that was no concern of the jury. At all events it was a thing which was patent, so that any person in the employ could know and see it. The horse here in question was not accidentally or suddenly vicious, but inherently vicious, and known to be so. Under the old law it would have been said: “You” (the servant) “have entered into or continued in this employment where this thing of which you complain is open and palpable, and therefore it is an implied condition of your contract of service that you take upon yourself the risk of accidents therefrom, and consequently you have no remedy against your employer.” As between master and servant, that was the way the immunity from liability was always stated. The maxim Volenti non fit injuria was not wanted as between master and servant. It was only wanted, if at all, where no such relation as that of master and servant existed. That being so, then comes the question, what is to be the effect of the Employers’ Liability Act? Does that Act apply to the present case?
Now, the first question must be, whether the plaintiff was a “workman” within the definition given in the Employers and Workmen Act, 1875. I cannot entertain a doubt upon that. He is a man who drives a horse and trolley for a wharfinger. We must take into account what his ordinary duty was. He has to load and unload the trolley. That is manual labour. His duty may be compared to that of a lighterman who conducts a barge or lighter up and down the river. The driving the horse and trolley and the navigating of the lighter form the easiest part of the work: his real labour, that which tests his muscles and his sinews, is, the loading and unloading of the trolley or the lighter.
Then comes the question which is somewhat more difficult, – can a horse be considered “plant” within s. 1, sub-s. 1, of the Employers’ Liability Act? It is suggested that nothing that is animate can be plant; that is, that living creatures can in no sense be considered plant. Why not? In many businesses horses and carts, wagons, or drays, seem to me to form the most material part of the plant: they are the materials or instruments which the employer must use for the purpose of carrying on his business, and without which he could not carry it on at all. The principal part of the business of a wharfinger is conveying goods from the wharf to the houses or shops or warehouses of the consignees: and for this purpose he must use horses and carts or wagons. They are all necessary for the carrying on of the business. It cannot for a moment be contended that the carts and wagons are not “plant.” Can it be said that the horses, without which the carts and wagons would be useless, are not? If, then, this horse was part of the plant, it had a defect, that is, it had the constant habit, whether in a stable or harnessed to a trolley, of kicking whatever was near it, whether a human being or a brick wall. In short, it was a vicious beast that could not be managed or controlled by the most careful driver. The plant, therefore, was defective. There was no evidence that the master (the defendant) knew of the defect. But the foreman, who had the management of the stable and under whose directions the horse was used, knew it; and, after having repeatedly been told that it was unsafe, he said what practically amounted to this: “I care not whether the horse is vicious or not; you have got to drive him; and it matters nothing to you, for, if you meet with an accident, the master will be responsible.” The foreman probably had no power to bind his master to that; but it is at all events conclusive to shew that he realised the fact that the plant was defective: and nothing was done to remedy the defect. Was this negligence on the part of the foreman for which the master was responsible? If the master had any duty at all to take care of his workmen, then allowing this imperfect plant to continue to be used was surely a breach of that duty. But it is said he may have had that duty, and may have neglected it as to those of his workmen who did not know of or were not affected by the particular defect, but not as to the plaintiff, who, knowing of the defect, still continued to drive the horse, and therefore comes within the maxim referred to. I confess that has always seemed to me to be not a bad way of illustrating the result; but it is, to my mind a horrible way of stating the duty, to say that a master owes no duty to a servant who knows that there is a defect in machinery, and, having pointed it out to one in authority, goes on using it. It seems cruel and unnatural, and in my view utterly abominable. It may be that the breach of this duty gives no right of action, – that it is what is called a duty of imperfect obligation. Although the employer does not himself know of the defect, if he has put a person in his place to do what he ought himself to do, he is responsible for the negligence of that person.
Before the Employers’ Liability Act, there was this condition in the contract of hiring, that, if there was a defect in the premises or machinery which was open and palpable, whether the servant actually knew it or not, he accepted the employment subject to the risk. That is the doctrine which is embodied in the maxim Volenti non fit injuria. I need hardly repeat that I detest the attempt to fetter the law by maxims. They are almost invariably misleading: they are for the most part so large and general in their language that they always include something which really is not intended to be included in them. I do not doubt that, if we put this maxim into plain English, part of it is true; that is to say, that, if a thing is put before a workman and he is told, “Now, I do not ask you to do this unless you like; but I will give you more wages if you do. You see what it is. There is a rotten ladder: it is ten to one that it will break under you: but, if you choose to run that risk, I will give you higher wages.” If the workman, seeing the risk, elects to incur it, no one could doubt that he would be precluded from recovering damages against his employer for any injury he might sustain from the breaking of the ladder. The same result would follow if the injured person was not a workman for hire. But, does the maxim Volenti non fit injuria go this length, that the mere fact of the workman knowing that a thing is dangerous, and yet using it, is conclusive to shew that he voluntarily incurs the risk? The answer to that depends (so far as this Court is concerned) upon whether or not Thomas v. Quartermaine. (1) has so decided. I never entertained a doubt that the Employers’ Liability Act does not prevent the proper application of the maxim Volenti non fit injuria: and I can only say, as an excuse for the part I took in Thomas v. Quartermaine. (1), that that doctrine had never been mentioned on the argument of that case, but was for the first time suggested in the judgment of my Brother Bowen. For myself, I cannot help thinking that, whether or not a workman has voluntarily agreed to incur the risk of defective machinery, is a question of fact: and that, in my opinion, would have made the decision in Thomas v. Quartermaine. (1) wrong; for, the majority of the judges there took upon themselves to decide the question of fact; whereas, in my opinion, they had no right to decide it: the utmost they properly could do was to send it back to the county court. They held in that case that the facts were conclusive to shew that the plaintiff did voluntarily, – in the sense in which they understood the word, – accept the risk. This revives the old difficulty as to contributory negligence in cases of railway accidents.(2) I have always protested that it is not for the judge to say whether or not a plaintiff (or the deceased, in the case of death,) has been guilty of contributory negligence: he (the judge) has no right to hold that the evidence of it is conclusive: it should be left for the decision of the jury.
(1) 18 Q. B. D. 685.
Now comes the other question, whether the Employers’ Liability Act has done away with the old doctrine that a workman impliedly contracts or consents to incur a risk which is a visible and palpable one, and one which therefore he is to be taken to know of, or, if you please, which he does know of; or whether it applies only to the risks incident to common employment. For a time I was under the impression that the judgment in Thomas v. Quartermaine. (1) was that the Act only absolved the employer from liability for any injury resulting from the negligence of a fellow-workman. But, upon looking at the matter more carefully, I do not think they meant to say that. It was not necessary for them to say it, because they held, that, inasmuch as the case was conclusively within the maxim Volenti non fit injuria, no other question arose in the case.
(1) 18 Q. B. D. 685.
(2) Davey v. London and South Western Ry. Co., 11 Q. B. D. 213; 12 Q. B. D. 70.
Now, let us go back to the statute. We must look once more at s. 1, sub-s. 1, – Where, after the commencement of this Act, personal injury is caused to a workman “by reason of any defect in the condition of the ways, works, machinery, or plant connected with or used in the business of the employer,” the workman shall have the same right of compensation and remedies against the employer as if the workman had not been a workman of nor in the service of the employer nor engaged in his work.” Here, I say there was such defect and consequent personal injury. Read with this sub-sections 1 and 3 of s. 2. Sub-s. 1 provides that the workman shall not be entitled under this Act to any right of compensation or remedy against the employer under sub-s. 1 of s. 1, “unless the defect therein mentioned arose from or had not been remedied owing to the negligence of the employer, or of some person in the service of the employer and intrusted by him with the duty of seeing that the ways, works, machinery, or plant were in proper condition:” and sub-s. 3, that “In any case where the workman knew of the defect or negligence(1) which caused his injury, and failed within a reasonable time to give or cause to be given information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer already knew of the said defect or negligence,” the workman shall in like manner be disentitled to any right of compensation or remedy. Here the defect arose from the negligence of a person in the service of the employer and intrusted by him with the duty of seeing that the plant was in proper condition, and who had notice of the defect, and failed to take steps to avert injury. To my mind it is clear that this was negligence with regard to the safety of his workman for which the employer is responsible. But then, it is said, there may be that which prevents the workman from recovering compensation for an injury sustained by him in consequence of that negligence. The implied contract which I have adverted to under the old law did prevent it. Where there is no duty, it is said, there can be no negligence; or, in other words, there may be negligence which is not actionable negligence. It is very difficult to give a sensible construction to sub-s. 3 of s. 2. The workman who discovers the defect is to give notice of it or he cannot recover. From that I infer that if he does give notice, and the defect is not remedied, he may recover. When is he to give notice? And what if the defect is not immediately remedied? Is the workman at once to refuse to incur the risk and quit the employ? That is a dilemma to which it never could have been intended to reduce the workman. I cannot help thinking that it is clearly enacted in the 3rd sub-s. of s. 2, that, if the workman gives notice of the defect, and the employer fails to remedy it, the workman’s claim for compensation is valid, unless he is brought clearly within the maxim Volenti non fit injuria. Does the judgment of Bowen, L.J., in Thomas v. Quartermaine. (1), – for, that is the judgment which is adopted by Fry, L.J., – mean to say that the mere knowledge of the workman and his continuing in the employ is fatal to him? If I thought the judgment in Thomas v. Quartermaine. (1) really did mean that, whatever my own private opinion might be, I should unhesitatingly bow to it. I have been trying to construe that judgment fairly. At p. 697 of the report, the learned judge, after referring to Winch v. Conservators of the Thames (2) and Lax v. Corporation of Darlington (3), says: “The defendant in such circumstances does not discharge his legal obligation by merely affecting the plaintiff with knowledge of a danger which but for a breach of duty on his own part would not exist at all. But, where the danger is one incident to a perfectly lawful use of his own premises, neither contrary to statute nor common law, where the danger is visible and the risk appreciated, and where the injured person, knowing and appreciating both risk and danger, voluntarily encounters them, there is, in the absence of further acts of omission or commission, no evidence of negligence on the part of the occupier at all.
(1) See sub-ss. 2 and 3 of s. 1.
Knowledge is not a conclusive defence in itself. But, when it is a knowledge under circumstances that leave no inference open but one, viz. that the risk has been voluntarily encountered, the defence seems to me complete.” I must confess I do not like that way of putting it. I think there is a duty, though I agree that there is no actionable breach of that duty if the person injured, knowing and appreciating the danger, voluntarily elects to encounter it. In the preceding page the learned judge says: “It is no doubt true that the knowledge on the part of the injured person which will prevent him from alleging negligence against the occupier, must be a knowledge under such circumstances as lead necessarily to the conclusion that the whole risk was voluntarily incurred. The maxim, be it observed, is not “Scienti non fit injuria,” but “Volenti.” There may be a perception of the existence of the danger without appreciation of the risk; as, where the workman is of imperfect intelligence.” So that a dull man may recover damages where a man of intelligence may not! Both know of the danger, but one is imperfectly informed as to its nature and extent!
(1) 18 Q. B. D. 685.
(2) Law Rep. 9 C. P. 378.
(3) 5 Ex. D. 78.
Taking the whole of that judgment together, it seems to me to amount to this, that mere knowledge of the danger will not do: there must be an assent on the part of the workman to accept the risk, with a full appreciation of its extent, to bring the workman within the maxim Volenti non fit injuria. If so, that is a question of fact. Here, the judge of the court below has come to the conclusion that the moment it appeared that the plaintiff knew and appreciated the danger, and did not at once quit the defendant’s employ, he came within the maxim, and was therefore upon the authority of Thomas v. Quartermaine. (1) disentitled to recover. He did not bring his mind to bear upon the motives which induced the plaintiff to act as he did, – whether he relied upon the foreman’s statement that the employer would be responsible in case of an accident, or whether he was influenced by the fear of being thrown out of employ if he disobeyed the foreman’s orders. All that was for a jury; and the judge ought to have applied his mind to it. I see nothing in the decision in Thomas v. Quartermaine. (1) to prevent the plaintiff from recovering in this case, unless the circumstances were such as to warrant a jury in coming to the conclusion that the plaintiff freely and voluntarily, with full knowledge of the nature and extent of the risk he ran, impliedly agreed to incur it.
(1) 18 Q. B. D. 685.
For these reasons, I think this case ought to go down for a new trial.
The first question is, whether the plaintiff is a “workman” within the meaning of the Employers’ Liability Act. In my opinion he is. His duty was, not only to drive, but also to load and unload the goods which had to be transported on the trolley which it was his business to drive. This loading and unloading requires bodily labour and exertion, and brings the plaintiff within the statutory definition of a workman.(1)
The next question is whether the horse which injured the plaintiff is “plant” within the meaning of s. 1, sub-s. 1, of the Act. There is no definition of plant in the Act: but, in its ordinary sense, it includes whatever apparatus is used by a business man for carrying on his business, – not his stock-in-trade which he buys or makes for sale; but all goods and chattels, fixed or moveable, live or dead, which he keeps for permanent employment in his business: see Blake v. Shaw. (2) The word “defect,” and the words “way and machinery” which occur in the section, throw some doubt on whether plant can include horses; but I do not think the doubt sufficient to require the Court to hold that plant cannot include horses, or to hold that plant must be confined to inanimate chattels. The defendant in this case has a number of horses for use in his business: they were part of his plant, not only in the ordinary sense of the word, but also, in my opinion, in the sense in which the word plant is used in s. 1, sub-s. 1, of the Employers’ Liability Act.
The next question is whether vice in a horse can be a defect in the condition of plant. Here, again, I think it can. I take defect to include anything which renders the plant &c. unfit for the use for which it is intended, when used in a reasonable way and with reasonable care: and, if a horse intended for drawing trolleys is from any cause unfit for such work, and a person is driving him with reasonable care, and is injured by reason of the unfitness of the horse for his work, such person may be properly said to be injured by reason of a defect in plant.
(1) 38 & 39 Vict. c. 90, s. 10.
(2) Johns. 732.
Having cleared the ground thus far, it is necessary to consider whether the defect “arose from or had not been discovered or remedied owing to the negligence of the defendant or of some person in his service and intrusted by him with the duty of seeing that the plant was in proper condition”: see s. 2, sub-s. 1. The defect, i.e. the unfitness of the horse, did not arise from the negligence of the defendant, nor, in truth, of any one; nor is there any evidence that the defendant himself knew of such defect. But his stable-foreman did know of it, and he nevertheless took no steps to prevent the horse from being used for a purpose for which he knew it was unfit; for, he told the plaintiff to go on driving it, and said, if anything happened, “we,” i.e. his master, “must take the consequence.” This, I think, is evidence of negligence on the part of the stable-foreman for which the defendant can properly be held accountable, unless his liability is excluded upon the ground that the plaintiff not only knew of the defect but also took the risk upon himself.
This is the point which presents the greatest difficulty in the case, and which requires careful consideration.
It must be taken as settled by Thomas v. Quartermaine. (1) that the words at the end of s. 1 do no more than “remove such fetters on a workman’s right to sue as had been previously held to arise out of the relation of master and workman,” – (2) that s. 2, sub-s. 3, does not extend the master’s liability beyond that imposed by s. 1, and s. 2, sub-s. 1, – (3), that, in each of the cases specified in s. 1, the maxim Volenti non fit injuria is applicable, and that, if a workman, knowing and appreciating the danger and the risk, elects voluntarily to encounter them, he can no more maintain an action founded upon the statute than he can in cases to which the statute has no application. Those principles are in my opinion perfectly sound: but the proper application of them is by no means always easy. The question whether in any particular case a plaintiff was volens or nolens is a question of fact, and not of law. Bowen, L.J., was careful to point out that the mere fact that the plaintiff knew of the danger and yet incurred it is not conclusive. He says(2): “The maxim, be it observed, is not Scienti non fit injuria, but Volenti non fit injuria.” He further points out(3) that there may be cases in which a non-workman who knew of a danger and incurred it might nevertheless maintain an action against the person exposing him to it.
(1) 18 Q. B. D. 658, at p. 692.
(2) At p. 696.
(3) At p. 693.
The question in each case must be, not simply whether the plaintiff knew of the risk, but whether the circumstances are such as necessarily to lead to the conclusion that the whole risk was voluntarily incurred by the plaintiff.(1)
The learned judge who tried the present case thought he was bound by Thomas v. Quartermaine. (2) to decide it in favour of the defendant. In this respect I differ from him. The principles laid down in that case are no doubt to be accepted and followed; and, if I may say so, I entirely concur in them: but it is not in my opinion correct to regard that case as deciding this. The facts there and the facts here are materially different. In Thomas v. Quartermaine. (2) the facts were all one way: there was evidence that the plaintiff was volens, and not merely sciens; he was not even directed to do what led to his injury; he did it voluntarily, of his own accord; there was no evidence that the plaintiff was nolens; the plant was not defective or dangerous to persons engaged in the ordinary course of their employment; the plaintiff had never complained of it; the injury was the result of a pure accident: and the case might well have been decided on that ground alone. In the present case, the horse was vicious; the plaintiff was constantly complaining of it to the defendant’s foreman; the foreman told the plaintiff to go on driving it, and the plaintiff did so rather than run the risk of dismissal: nor is it possible to regard this case as one of accident. Under these circumstances, the question is whether the plaintiff, with knowledge and appreciation of both the risk and the danger, voluntarily took the risk upon himself. The plaintiff was not engaged to drive vicious horses: and the conversation with the foreman, though not evidence against the defendant of any promise by him to take the risk, is in my opinion admissible to explain the conduct of the plaintiff, and to rebut the inference that he voluntarily took the risk upon himself.
(1) See p. 696.
(2) 18 Q. B. D. 685.
To hold that this case is concluded by Thomas v. Quartermaine. (2) is, I think, to carry that case further than is warranted by the principle on which it was decided: it is to do the very thing Bowen, L.J., so carefully pointed out the danger of doing, viz. to treat sciens as equivalent to volens. The Act cannot, I think, be properly construed in such a way as to protect masters who knowingly provide defective plant for their workmen, and who seek to throw the risk of using it on them by putting them in the unpleasant position of having to leave their situations or submit to use what is known to be unfit for use. Thomas v. Quartermaine. (1) is no authority for any such construction of the statute.
If in any case it can be shewn as a fact that a workman agreed to incur a particular danger, or voluntarily exposed himself to it, and was thereby injured, he cannot hold his master liable. But, in the cases mentioned in the Act, a workman who never in fact engaged to incur a particular danger, but who finds himself exposed to it and complains of it, cannot in my opinion be held as a matter of law to have impliedly agreed to incur that danger, or to have voluntarily incurred it because he does not refuse to face it: nor can it in my opinion be held that there is no case to submit to a jury on the question whether he has agreed to incur it or has voluntarily incurred it or not, simply because, though he protested, he went on as before. The facts of each particular case must be ascertained and considered. If nothing more is proved than that the workman saw danger, reported it, but, on being told to go on, went on as before in order to avoid dismissal, a jury may in my opinion properly find that he had not agreed to take the risk and had not acted voluntarily in the sense of having taken the risk upon himself. Fear of dismissal, rather than voluntary action, might properly be inferred. A fortiori might the jury properly come to such a conclusion if it was proved that the workman was told by his superintendent not to mind, and that if any accident happened the employer must make it good. Such an additional circumstance would go far to negative the inference that the complaining workman took the risk upon himself.
I cannot construe the Act as shutting out such considerations as these; and, as the learned judge did not think himself at liberty to entertain them, and decided in favour of the defendant upon what I consider a misconception of Thomas v. Quartermaine. (1), I think there ought to be a new trial.
(1) 18 Q. B. D. 685.
This is an important and difficult case: and I regret that I am unable to agree with the decision of the rest of the Court.
The action was brought under the Employers’ Liability Act, 1880; but the judge in the court below has not decided the case on any question arising under that Act, apart from the law as it existed before the passing of that Act; but has given judgment for the defendant on the ground that the plaintiff knew all the facts, was well acquainted with the character of the horse, and voluntarily encountered the risk, and that therefore there was no evidence of neglience arising from any breach of duty which the defendant owed the plaintiff entitling the plaintiff to recover.
It is to be observed that s. 1, sub-s. 1, and s. 2, sub-s. 1, of the Act, – which must be read together, – effect no change in the law as regards the liability of the employer, except in certain specified cases by identifying a “person in the service of the employer and intrusted by him with the duty of seeing that the ways, works, machinery, or plant are in proper condition,” with the employer, and taking him out of the category of fellow-servants, and rendering the employer responsible for his negligence.
There is nothing here to affect the doctrine of Volenti non fit injuria, if it applies: nor is that doctrine touched by anything in s. 1, sub-s. 3: but of that presently. The doctrine of Volenti non fit injuria is exhaustively dealt with in the cases of Woodley v. Metropolitan Railway Co.(2) 2 Ex. D. 384. and Thomas v. Quartermaine. (1) Both these cases were in the Court of Appeal; and the judgments of the majority of the Court are not only binding on us sitting as a Divisional Court, but are binding on the Court of Appeal itself. The question, therefore, is, whether the present case is governed by these cases or either of them.
(1) 18 Q. B. D. 685.
(2) 2 Ex. D. 384.
To determine this it is essential to state shortly the facts of the present case:- The plaintiff was the driver of a trolley, and at the time of the accident had been about four years in the employ of the defendant, who was a wharfinger. The accident happened in November, 1886. In the previous August a horse had been purchased by the defendant which was by Tomlin, the defendant’s stable-foreman, assigned to the plaintiff to drive in his trolley. The plaintiff’s duty was to clean, take care of, and drive the horse in his trolley, and to go with his trolley where ordered by Tomlin, who had superintendence of the horses, and to load and unload as instructed. From the first, the horse was vicious and troublesome, – so vicious and troublesome that it was said to have broken down a brick-wall, and generally to be a kicker and a jibber. The plaintiff had constantly complained of this horse to Tomlin, and had been told by him to go on driving the horse, and that his employer would he responsible for anything the horse did. The plaintiff, though daily, as he said, complaining, continued in the defendant’s service, driving the horse. On the 12th of November, the plaintiff was driving the horse, sitting on the trolley with his legs hanging down behind the horse. There was no other place on the trolley provided for him where he could sit to drive. The horse kicked violently, broke the plaintiff’s leg, and injured him severely. In these circumstances, he brings his action against the defendant. The case came on to be tried in the City of London court, without a jury; and the judge, considering it undistinguishable from Thomas v. Quartermaine. (1), and that the doctrine of Volenti non fit injuria applied, stopped the case, and gave judgment for the defendant.
Is this a case where the employer is absolved from liability because the plaintiff voluntarily exposed himself to the risk, within the principle contained in the cases to which I have referred?
In Woodley v. Metropolitan Railway Co.(2) 2 Ex. D. 384. , the plaintiff was a workman not in the employment of the defendants, but in that of a contractor employed by them. He had to work in a dark tunnel, rendered dangerous by trains constantly passing. After he had been working for a fortnight, he was injured by a passing train. The jury found that the defendants were negligent, and gave a verdict for the plaintiff for 300l. A rule to set aside this verdict was discharged; and, on appeal, it was held by the majority of the Court of Appeal that the plaintiff, having continued in his employment with full knowledge, could not make the defendants liable for an injury to which he voluntarily exposed himself.
(1) 18 Q. B. D. 685.
(2) 2 Ex. D. 384.
The only distinctions that I can find between that case and the present are the following, – Woodley was hired to do dangerous work, and knew its dangerous character and attendant risks. Yarmouth was hired to do work not dangerous, viz., amongst other work, to drive horses, which most frequently are manageable. The horse which did the mischief was entrusted to his care after he entered on the employment, and it was then first he learned its propensities; but long after he had been made aware of its vicious nature he continued to drive it. There was no evidence that Woodley ever made any complaint to his employer. Yarmouth, on the contrary, complained, but continued in the employment. Having regard to the judgments of the majority of the Court, I do not think that what I have suggested furnishes any substantial ground for distinction. Cockburn, C.J., says: “With a full knowledge of the danger, he (Woodley) continued in the employment, and had been working in the tunnel for a fortnight when the accident happened. – If he becomes aware of the danger which has been concealed from him, and which he had not the means of becoming acquainted with before he entered on the employment, or of the want of the necessary means to prevent mischief, his proper course is to quit the employment. If he continues in it, he is in the same position as though he had accepted it with a full knowledge of its danger in the first instance, and must be taken to waive his right to call upon the employer to do what is necessary for his protection, or, in the alternative, to quit the service. If he continues to take the benefit of the employment, he must take it subject to its disadvantages. – If a man chooses to accept the employment, or to continue in it, with a knowledge of the danger, he must abide the consequences, so far as any claim to compensation against the employer is concerned. Morally speaking, those who employ men on dangerous work, without doing all in their power to obviate the danger, are highly reprehensible, as I certainly think the company were in the present instance. The workman who depends on his employment for the bread of himself and his family is thus tempted to incur risks to which as a matter of humanity he ought not to be exposed. But, looking at the matter in a legal point of view, if a man, for the sake of the employment, takes it or continues in it with a knowledge of its risks, he must trust to himself to keep clear of injury.” This judgment, in which the majority of the Court concurred, covers the present case, and, subject to the provisions of the Employers’ Liability Act, disposes of the only distinction which I am able to suggest.
The point that Yarmouth was not engaged to drive a dangerous horse is met by the fact that he continued in the service after he knew the horse was dangerous; and his constant complaints may be regarded as evidence of his thorough appreciation of the risk he was incurring and of his willingness to incur that risk rather than relinquish his employment. After complaining he remains in the service for a long time, knowing the risk and knowing that no steps had been taken to prevent its continuance. This is more consistent with his acquiescence in a disregard of his complaints, and with a willingness to incur the risk, than with the contrary view.
In Griffiths v. London and St. Katharine Docks Co. (1), it was held that, in an action brought by a servant against his master for personal injury resulting from the unsafe state of the premises upon which the servant was employed, the statement of claim must allege not only that the master knew but that the servant was ignorant of the danger. The present Master of the Rolls(2) said: “If the danger is one which was known to the master and not to the servant, the knowledge of the master and the want of knowledge of the servant make together a cause of action; and, as it is necessary that these two things should exist in order to form a primâ facie cause of action, it is necessary that they should be shewn to exist in the statement of claim.” And Bowen, L.J., in the same case says(3): “Both these allegations are material, because without them there is no cause of action.” It is therefore abundantly clear that, as the danger was known to the servant (the plaintiff), he could not recover before the Employers’ Liability Act.
(1) 12 Q. B. D. 493; on appeal, 13 Q. B. D. 259.
(2) 13 Q. B. D. at p. 260.
(3) At p. 261.
It is said, however, that Woodley v. Metropolitan Railway Co.(2) 2 Ex. D. 384.(1), Griffiths v. London and St. Katharine Docks Co. (2), and other cases, do not govern the case before the Court. It is said that the law has been altered in cases to which the Employers’ Liability Act applies; and I assume, for the purposes of this case, that the Employers’ Liability Act applies to the case of this plaintiff. It is suggested that there is something in the Employers’ Liability Act which qualifies the defence of Volenti non fit injuria, – a defence which would have been available for the master before the Act. It is said that a workman who can bring himself within one of the five clauses of s. 1 of the Act is not to be treated as volens, although he thoroughly appreciated the risk he was incurring, complained of it, and for a long time continued in the service, preferring the risk to quitting the service; and this, although he would have been treated as volens before the Act.
I cannot accede to this view. It is opposed to the case of Thomas v. Quartermaine.18 Q. B. D. 685. (3) The third sub-section of s. 2 is relied upon. Bowen, L.J., in Thomas v. Quartermaine. (3) deals with that clause. He says(4): “The object of that clause is to limit the employer’s liability, not to enlarge it.” I read it thus:- Although, under s. 1, the workman, with certain exceptions, is to be placed in a position as advantageous as, but not better than, the rest of the world who use the master’s premises in his business, the workman is not to have this advantage if, knowing of any defect or negligence, he does not inform the employer, as provided in that section. The object of this is, to give the employer the opportunity of remedying the mischief. In fact, the workman is not to have the advantages of the Act unless he performs the condition precedent of making the master aware of his cause of complaint. This leaves the employer’s defence of Volenti non fit injuria untouched by the Act, if he can prove it. It is said that such a construction would make the Act nearly a dead letter. But this is not the case. In all cases where the workman is ignorant of the defect or negligence, and is injured by a fellow workman’s negligence, “common employment” is no longer a defence for the master in the cases specified in s. 1, as it would have been before the passing of the Act. It is said that the object of the Act was to exclude in the specified cases the two legal inferences which were before the Act to be drawn against a workman from the mere fact of his employment, viz. – first, the inference that he accepted the risk of his fellow servants’ negligence; and, secondly, the inference that he accepted the risks which were involved in the execution of his employer’s orders, if he in fact ran them, rather than refuse to do so, and thereby incur the risk of dismissal. I agree that it was the object of the Act to exclude the first inference, and in the specified cases to destroy the defence of “common employment.” But, what authority there is for the contention that it was intended to extinguish the second inference I fail to be able to discover.
(1) 2 Ex. D. 384.
(2) 12 Q. B. D. 493; on appeal, 13 Q. B. D. 259.
(3) 18 Q. B. D. 685.
(4) At p. 693.
The true construction of the third sub-section of s. 2, in my opinion, is, that whereas before the Act knowledge would have disentitled the workman to recover, now knowledge in the specified cases is no longer to create a disability, provided the workman gives information; but if, after giving information, he continues in the employment, knowing the danger he is incurring, the same inference arises as heretofore, viz. the inference that he voluntarily runs the risk, and any evidence of negligence arising from any breach of duty on the part of the employer is by the workman’s conduct displaced.
I agree with the decision of the majority of the Court in Thomas v. Quartermaine.18 Q. B. D. 685. , and with the construction they place on the Employers’ Liability Act. That Act only removes such obstacles to a workman’s right to sue as had been held to arise from the relation of master and servant. It leaves the doctrine of Volenti non fit injuria untouched. Now, as before the Act, to use the words of Bowen, L.J.(2), “one man cannot sue another in respect of a danger or risk not unlawful in itself that was visible, apparent, and voluntarily encountered by the injured person.” The present case seems a stronger case of voluntary exposure to danger than that of Thomas v. Quartermaine.18 Q. B. D. 685. In the latter case there is little if any evidence that Thomas knew of or appreciated the danger: but, in the present case, the evidence is strong to shew that Yarmouth thoroughly understood the danger to which he was exposing himself. With a knowledge of the danger, though complaining, he continues in the service, indicating thereby a willingness to incur the risk rather than give up his employment.
(1) 18 Q. B. D. 685.
(2) 18 Q. B. D. at p. 699.
In my opinion, the case of Thomas v. Quartermaine.18 Q. B. D. 685. decides that every defence (except in specified cases the defence of “common employment”) is still open to the employer: thus leaving the law, except in the case of “common employment” in the specified instances as it was laid down in Woodley v. Metropolitan Railway Co.(2) 2 Ex. D. 384. It was for the plaintiff here to make out that the defendant was negligent towards the plaintiff in conducting himself as admittedly he did. I can see no evidence of any negligence arising from any breach of duty which the defendant owed the plaintiff.
The plaintiff deposed that, when he complained, Tomlin told him to go on driving the horse, and that his employer would be responsible. There is no evidence that Tomlin was authorized by the defendant to make this statement. The judge below disregarded this evidence, and I think rightly: it was not admissible as evidence against the master (the defendant). I am unable to see any substantial difference between the present case and the cases to which I have referred: and I think the judge was right in giving judgment for the defendant.
I am also of opinion that the judge was right in holding that the plaintiff was a person to whom the Employers and Workmen Act, 1875, applied, and therefore in that respect entitled to sue under the Employers’ Liability Act, 1880.
Holding as I do, it is unnecessary to decide whether a horse is “plant” within s. 1, sub-s. 1; for, assuming it in the plaintiff’s favour, in my opinion he cannot recover. I wish to be understood as not expressing any opinion on this.
The appeal will therefore be allowed.