DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW
2012-13

ROUGH DRAFT
OF

Study Of Basics Of Case Law

ON
Case Brief: Smith v Charles Baker & Sons
Submitted for the project work undertaken in the partial fulfilment of B.A. LL.B.
(Hons.) 5 years integrated course of Dr. Ram Manohar Lohiya NLU, Lucknow.

Submitted to: Submitted by:

Mr. Shashank Shekhar Himanshu Kr. Chaudhary

Assistant Professor Roll no. 58

Dr. RMLNLU, Lucknow 1st Semester

 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude

to my teacherMr.SHASHANK SHEKHARwho gave
me the golden opportunity to do this wonderful
project on the topic-CASE BRIEFE ON CASE-
SMITH V. CHARLES BAKER & SONS, which also
helped me in doing a lot of Research and i came to
know about so many new things,I am really thankful
tohim.
Secondly i would also like to thank my seniors and
friends who helped me a lot in finishing this project
within the limited time.
CONTENTS

Introduction
case briefing
Statement of facts
Procedural history
Issues
Judgment
Representation
Order of the court
Conclusion
INTRODUCTION
Its chief purpose is to give guidance to the reader on how to read a case
in order to identify, extract, and where necessary apply its ratio
decidendi. All those training for the Bar have in theory read many cases
at the academic stage, and do have learned to do this. But you may not
ever have given much comprehensive thought to the process of reading a
case or to identifying exactly what the ratio of it is. Also anecdotal
evidence suggests that there are some who have got by to a very large
extent using case books, which contain only digests of cases, or simply
by reading the headnote of a case, which contains a short statement of
what the reporter considers to be its ratio, but which may or may not be
accurate, particularly after the case has been interpreted by a court in a

later case.
SMITH v. CHARLES BAKER & SONS1
CASE NO.:-

BAILII
Citation Number: [1891] UKHL 2
APPELLANT:-

JOSEPH SMITH (PAUPER)

RESPONDRNT:-

CHARLES BAKER & SONS

DATE OF JUDGMENT:-

21 JULY 1981

BENCH:-
Lord Halsbury L.C
Lord Bramwell
Lord Watson
Lord Herschell
Lord Morris

FACT:-
The plaintiff was employed by railway contractors to drill holes in a rock
cutting near a crane worked by men in the employ of the contractors.
The crane lifted stones and at times swung over the plaintiff's head
without warning. The plaintiff was fully aware of the danger to which he
was exposed by thus working near the crane without any warning being
given, and had been thus employed for months. A stone having fallen
from the crane and injured the plaintiff, he sued his employers in the
County Court under the Employers Liability Act 1880.

ISSUE:-

1.Defence of "Volenti non fit injuria" was limited in employee situations.

2. Whether the knowledge of the plaintiff in the particular circumstances
made it so unreasonable for him to do what he did as to constitute
contributory negligence.

JUDGMENT:-
It was held by the House of Lords, reversing the decision of the Court of
Appeal (Lord Bramwell dissenting), that the mere fact that the plaintiff
undertook and continued in the employment with full knowledge and
understanding of the danger arising from the systematic neglect to give
warning did not preclude him from recovering; that the evidence would
justify a finding that the plaintiff did not voluntarily undertake the risk of
injury; that the maxim "Volenti non fit injuria" did not apply; and that
the action was maintainable.

According to LORD HALSBURY LC:-

That in order to defeat a plaintiff's right by the application of the maxim
relied on,who would otherwise be entitled to recover, the jury ought to
be able to affirm that he consented to theparticular thing being
donewhich would involve the risk, and consented to take the risk upon
himself. It ismanifest that if the proposition which I have just enunciated
be applied to this case, the maxim could herehave no application. So far
from consenting, the plaintiff did not even know of the particular
operation thatwas being performed over his head until the injury
happened to him, and consent, therefore, was out ofthe question.As I
have intimated before, I do not deny that a particular consent may be
inferred from a general courseof conduct. Every sailor who mounts the
rigging of a ship knows and appreciates the risk he isencountering. The
act is his own, and he cannot be said not to consent to the thing which he
himself isdoing. And examples might be indefinitely multiplied where
the essential cause of the risk is the act of thecomplaining plaintiff
himself, and where, therefore, the application of the maxim, Volenti
non fit injuria, iscompletely justified. treated the question apart from
the specific findings by the jury. But I am not disposed tothink that those
findings were not justified upon the evidence presented. They found that
the machineryfor lifting the stone from the cutting was not reasonably fit
for the purpose for which it was applied, taken as a hole. I think the jury
meantand if they did so mean, I am of opinion that they were right
that,looking to the risk incurred by the men working below and to the
possibility of the crane when worked letting stones fall, the machinery
was not reasonably fit for the purpose for which itwas applied, that is to
say, not reasonably fit for securing that stones should not fall from it
when slungover men's heads. And further, that if with such machinery
the stones were being slung over men's heads,special warning ought to
have been supplied to the men imperilled by such an operation, and that
theemployers were guilty of negligence in not remedyingsucha mode of
working such machinery undersuch conditions of work. negligent mode
of using perfectly sound machinery may make the employer liable quite
apart from any ofthe provisions of the Employers' Liability Act. In
Sword v. C ameronit could hardly be doubted that thequarryman who
was injured by the explosion of the blast in the quarry was perfectly
aware of the risk; but nevertheless he was held entitled to recover
notwithstanding that knowledge.

It seems to me that in the present case the right of the plaintiff to recover
is far more clear than in Swordv. C ameron. The interval given to the
quarryman to seek shelter was the usual and ordinary one. But suppose
in that case the employer had employed the quarryman to do something
which by the very formof the employment prevented his hearing the
signal which gave him warning to retreat? In this case, as I
have pointed out, there was no warning and no signal, but the employer
or his representative employedthe plaintiff under such circumstances as
disabled him from using his eyes for protecting himself againstthe risk.
It seems to me, therefore, that this is a case in which the plaintiff is
entitled to recover, and I thereforemoveyour Lordships that the judgment
of the C ourt of Appeal be reversed, and the judgment of thecounty court
judge restored.

According to LORD WATSON

In the present case no objection was made at the trial on the part of the
respondents that there was no evidence upon which the jury could find
there was negligence on their part;
nay, more, in the notice of motion, by way of appeal, in the Queen's
Bench Division, no objection was
taken that there was no evidence of negligence. The question of law
raised at the trial, both at the close of the plaintiff's case in asking for a
non-suit, and at the close of the entire case in asking for judgment, was,
that the plaintiff having admitted that he knew the risk and voluntarily
incurred it, the defendants were entitled to succeed. No question of law
was raised as to there being no evidence to go to the jury to establish the
defendants' negligence.
The Court of Appeal decided the case upon a question of law not taken
at the trial. I can find no reference in any of the judgments in the C ourt
of Appeal as to their competency to entertain and decide upon a point
not made at the trial, nor does the case of C larkson v. Musgrave appear
to have been cited. It is an express decision, and one in which I entirely
concur, that it is a condition precedent to the right of appeal that the
question of law upon which it is desired to appeal should have been
raised before the county court judge at the trial. If the point, that there
was no evidence of negligence, had been made by the defendants at the
trial, I am of opinion they would be now entitled to judgment; but, in my
opinion,that point is not now open, and the case must be dealt with,
assuming the findings of the jury as to the negligence of the defendants
He worked for months, knowing there was no special warner to caution
him, but running his chance of
getting out of the way, when the crane would otherwise pass over his
head. He was, in my opinion, both sciens and volens as to all the danger
except that arising from unfit machinery. Of that danger he was not
aware. I more than doubt it existed at all; but the right of appeal is a
statutable one: the respondents have not brought themselves within the
statute, in not objecting at the trial to the want of any evidence to
support the first finding; while it stands, the maxim, Volenti non fit
injuria,appears inapplicable. How can the plaintiff be held to voluntarily
incur a danger from unfit machinery, the unfitness of which he was
admittedly not aware of? The case of Thomas v. Quartermainefor the
same reason is no authority for the respondents' contention.
In result, I am of opinion that the appellant is entitled to succeed on the
course the case has taken, and with the limited right of review accorded
to the Divisional C ourt, to the C ourt of Appeal, or to your Lordships'
House.

According to LORD BRAMWELL:

There was no evidence of negligence in the defendants causing the
accident. There certainly was none; but it is said this was not open to the
defendants. Lindley L.J. gives judgment the same way; his judgment is
of extra importance, because it shews that Yarmouth v. France , relied on
for the plaintiff, is not, in the opinion of Lindley L.J. who was party to it,
against the defendants. His Lordship says: -If people will enter into
dangerous employment, they do so without making other people liable
for injuries they sustain.I cite also his Lordship's opinion to justify my
own, that the jury were led
away by sympathy, for they found matters that were not in the least
warranted by the evidence. I think there was no evidence of negligence
at all. Lopes L.J. says the same. This case is clearly within the
decisions that have been pronounced in the
C ourt below, and in this C ourt, in which it has been held, and I think
most properly held, that a person who is engaged to perform a dangerous
operation takes the risk of the operation of the work that he is called on
to perform. As to that, there never was any doubt before the Employers'
Liability Act, nor since.I think that is a very neat and forcible way of
putting it. He gives judgment for the defendants also on another ground,
viz., that there was no evidence of negligence in the defendants causing
the accident. There certainly was none; but it is said this was not open to
the defendants. Lindley L.J. gives judgment
the same way; his judgment is of extra importance, because it shews that
Yarmouth v. France , relied on for the plaintiff, is not, in the opinion of
Lindley L.J. who was party to it, against the defendants. His Lordship
says: If people will enter into dangerous employment, they do so without
making other people liable for injuries they sustain.I cite also his
Lordship's opinion to justify my own, that the jury were led
away by sympathy, for they found matters that were not in the least
warranted by the evidence. I thinkthere was no evidence of negligence at
all.Lopes L.J. says the same. This case is clearly within the decisions
that have been pronounced in the
C ourt below, and in this C ourt, in which it has been held, and I think
most properly held, that a person who is engaged to perform a dangerous
operation takes the risk of the operation of the work that he is called on
to perform. As to that, there never was any doubt before the Employers'
Liability Act, nor since.he think that is a very neat and forcible way of
putting it. He gives judgment for the defendants also on another ground,
viz., that there was no evidence of negligence in the defendants causing
the accident. people will enter into dangerous employment, they do so
without making other people
liable for injuries they sustain.I cite also his Lordship's opinion to justify
my own, that the jury were led away by sympathy, for they found
matters that were not in the least warranted by the evidence. I think there
was no evidence of negligence at all.

According to LORD MORRIS :-

The respondents in not supplying means of warning when the stones

were being jibbed, do not avail thenplaintiff. He undertook a dangerous
work of drilling holes, while over his head (unless he moved away)
stones were being hauled by a crane. That work he entered upon
knowing it was dangerous to that extent.
He worked for months, knowing there was no special warner to caution
him, but running his chance of getting out of the way, when the crane
would otherwise pass over his head. He was, in my opinion, both
sciens and volens as to all the danger except that arising from unfit
machinery. Of that danger he was not aware. I more than doubt it existed
at all; but the right of appeal is a statutable one: the respondents have not
brought themselves within the statute, in not objecting at the trial to the
want of any evidence to support the first finding; while it stands, the
maxim, Volenti non fit injuria, appears inapplicable. How can the
plaintiff be held to voluntarily incur a danger from unfit machinery, the
unfitness of which he was admittedly not aware of?
In result, I am of opinion that the appellant is entitled to succeed on the
course the case has taken, and with the limited right of review accorded
to the Divisional C ourt, to the C ourt of Appeal.
REPRESENTATIONS
Solicitors for appellant:- J. H. BridgfordforLongbottom& Sons, Halifax.
Solicitors for respondents:- Watson, Sons & Room for Neill &
Broadbent, Bradford.

ORDER OF COURT:-
Order of the Court of Appeal reversed and order of the Queen's Bench
Division restored: the respondents to pay to the appellant the costs in the
Court of Appeal and the costs incurred by him in respect of his appeal to
this House, the costs in this House to be taxed in the manner usual when
the appellant sues in form pauperis: cause remitted to the Queen's Bench
Division. Lords' Journals 21st July 1891.

CONCLUSIONS:-
The House of Lords decision in Smith v. Baker & Sons [1891] was the
first case in which the defence of "Volenti non fit injuria" was limited in
employee situations.
It is a question of fact in each case whether the knowledge of the
plaintiff in the particular circumstances made it so unreasonable for him
to do what he did as to constitute contributory negligence.
When a workman engaged in an employment not in itself dangerous is
exposed to danger arising from an operation in another department over
which he has no control - the danger being created or enhanced by the
negligence of the employer - the mere fact that he undertakes or
continues in such employment with full knowledge and understanding of
the danger is not conclusive to show that he has undertaken the risk so as
to make the maxim "Volenti non fit injuria" applicable in case of injury.
The question whether he has so undertaken the risk is one of fact and not
of law. And this so both at common law and in cases arising under the
Employers Liability Act 1880

BIBLIOGRAPHY:-
Bangia, R.K;Law of Torts,Allahabad Law Agency; 7th Edition;
2003.
 http://www.e-lawresources.co.uk/Smith-v--Baker--and--Sons.php
http://www.bailii.org/uk/cases/UKHL/1891/2.html