• In the case of ICI Ltd b Shatwell [1965] A.C. 656, it was held that where two fellow servants combine to disobey an order deliberately, knowing the risk involved, and are hurt, volenti non fit injuria-coming to the injury-is a complete defence for their employer in an action by either based on the employer’s vicarious liability for the other’s negligence or breach of statutory duty. The forbidden act being a deliberate breach of statute does not affect the application of volenti non fit injuria to an action against the employer or fellow servant.

Facts of the Case

  • C was employed by D as a qualified shot-firer in a quarry.
  • On 28th June 1960, C worked in a three-man team placing explosives to run blasting operations in the quarry.
  • After the explosives were placed and the detonators affixed, C’s team were to perform a ‘continuity test.’
  • This involved sending an electric current through the charges’ wiring to a galvanometer to show that the charges were primed without destroying them.
  • D had given orders in 1959 that any testing in future must be done from a shelter. This was made a statutory regulation in February 1960.
  • While one man went to get a longer cable, C and the remaining man, X, chose to perform the test against the regulations. Both men were injured, with C sustaining serious injuries.

Issues

  • Was there a causal link between X’s negligence and C’s injuries, for which D was vicariously liable as their employer?
  • Could D raise the complete defence of volenti non fit injuria; that C had consented to run the risk, thereby accepting all responsibility?

Held by the House of Lords

  • Finding for D, that there was a causal link between X’s negligence and C’s injuries, and D was vicariously liable for X’s conduct.
  • C had consented to run the risk, and D was therefore not liable.

Lord Reid

  • C admitted in evidence that he knew that D had determined that the continuity tests could be unsafe and had fired people for going against regulations. C admitted that they would only need to wait 10 minutes until the other man returned with the long wires. C’s only excuse was that he could not be bothered to wait.
  • It is far from clear that C would have done the test if X had not agreed with him. More importantly, X collaborated with C in completing the test unlawfully. That collaboration may not have amounted to much, but it was not negligible.
  • If X had been suing in respect of his damage it would be clear that both had contributed to the accident but that the greater part of the fault must be attributed to C.
  • Recently volenti non fit injuria has been considered a dying defence. In most cases where the defence would be available, contributory negligence has been favoured.
  • It must be held that C fully appreciated the risk. C knew that those better qualified than he was took the risk seriously. He knew that D had forbidden this practice and that it had then been prohibited by statutory regulation. No shot-firer could be in any doubt about the possible consequences of that.
  • “Finally, C argues that there is a general rule that the defence of volenti non fit injuria is not available where there has been a breach of a statutory obligation. It would be odd if that were so. In the present case the prohibition of testing except from a shelter had been imposed by D before the statutory prohibition was made. So, it would mean that if C had deliberately done what he did in full knowledge of the risk the day before the statutory prohibition was made this defence would have been open to D, but if he had done the same thing the day after the regulation came into operation it would not” [673D].
  • An employer who persistently refuses to comply with statute could not be allowed to escape liability because the injured workman agreed to waive the breach. If it is still permissible for a workman to agree to work under an unsafe system, there would be a difference between the employer’s breach of statutory obligation and breach of his common law obligation to exercise due care. But that is irrelevant to this case.

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