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Consent of Parties and Voluntas Legis
Published online by Cambridge University Press: 16 January 2009
Extract
Those who have commented on the moribund state of consent as a defence in tort have no doubt been eating their words since the decision of the House of Lords in Imperial Chemical Industries Ltd. v. Shatwell; though what precisely that case has accomplished is not clear. By regulation 27 (4) of the Quarries (Explosives) Regulations, 1959, a duty was imposed directly on shot-firers (not on employers) to carry out tests only from behind shelter; and breach of it was an offence. Two shot-firers, George and James Shatwell, who knew of the regulation and of their employers’ unsparing efforts to secure compliance in the interests of safety, decided nevertheless to disobey the injunction simply because they could not be bothered to wait until a lead long enough to enable them to test from behind shelter was fetched. Both men were injured when a detonator exploded. George, who was the prime mover in this enterprise, then sued the employers as being vicariously liable for the breach of statutory duty by James.
The lower courts reluctantly upheld his claim and rejected the defence of consent on the established ground, derived from Baddeley v. Earl Granville and Wheeler v. New Merton Board Mills Ltd., that this is no answer to a breach of statutory duty. The House of Lords unanimously reversed the decision and held that consent was a defence in these circumstances. Baddeley and Wheeler were distinguished on the ground that there the statutory duties lay on the employers, whereas here the duty lay on the employees themselves.
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- Copyright © Cambridge Law Journal and Contributors 1966
References
1 [1965] A.C. 656.
2 S.I. 1959 No. 2259, made under the Mines and Quarries Act, 1954.
3 (1887) 19 Q.B.D. 423.
4 [1933] 2 K.B. 669.
5 Articles and Notes on Shatwell's case: Brodetsky, P., “Employees’ Joint Breach of Statutory Duty: Volenti not Barred” (1964) 27 M.L.R. 733Google Scholar; Lewis, T. Ellis, “Master and Servant—Breach of Statutory Duty—Volenti non fit injuria” [1964] C.L.J. 194Google Scholar; Goodman, M. J., “Detestable Maxim?” (1964) 235 L.T. 607, 619Google Scholar; Munkman, J., “Breach of Statutory Duty by Workmen: Acceptance of the Risk” (1964) 114 L.J. 715Google Scholar; Shaffer, N. D., “Volenti non fit injuria,” 1965 S.L.T. 137Google Scholar; anon. 1966 S.L.T. 19; anon., “Volenti non fit injuria” (1966) 100 I.L.T. 1.Google Scholar
6 Where a statutory duty is created for the benefit of one person, e.g., to pay X an annuity, X might be allowed to absolve those who are under the duty. This kind of legislation is rare: see, e.g., Honourable Lady Hilton-Foster's Annuity Act, 1965.
7 [1965] A.C. 656 at p. 678.
8 Even before the Law Reform (Contributory Negligence) Act, 1945: Caswell v. Powell Duffryn Associated Collieries Ltd. [1940] A.C. 152.Google Scholar
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10 Alford v. N.C.B. [1952] 1 All E.R. 754 at p. 757.
11 The result of which is summed up by Lord Pearce in Shatwell [1965] A.C. 656 at p. 686, and by Williams, G. L., Joint Torts and Contributory Negligence, pp. 307–308.Google Scholar
12 (1887) 18 Q.B.D. 685.
13 Ibid, at pp. 696–697, 703.
14 (1887) 19 Q.B.D. 423.
15 (1886–90) All E.R.Rep. at p. 375, not included in the Q.B.D. report.
16 (1887) 19 Q.B.D. 423 at pp. 426–427. The wording in the All E.R.Rep. version differs in detail, but not in substance.
17 [1898] 2 Q.B. 402.
18 Abolished by the Law Reform (Personal Injuries) Act, 1948: see Smith v. B.E.A. Corp. and Another [1951] 2 K.B. 893.
19 [1933] 2 K.B. 669.
20 Ibid, at pp. 694–695.
21 [1965] A.C. 656.
22 Staveley Iron and Chemical Co. Ltd. v. Jones [1956] A.C. 627Google Scholar; and also per Reid, Lords, Radcliffe, Viscount, Pearce, Hodson and , Donovan in Shatwell [1965] A.C. 656 at pp. 672, 676, 681, 686, 694.Google Scholar
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24 [1957] 1 W.L.R. 1028. See also the Occupiers’ Liability Act, 1957, s. 2 (4). For exclusion of duty altogether: Ashdown v. Samuel Williams & Sons Ltd. and Another [1956] 2 Q.B. 580, on which see F. J. Odgers [1957] C.L.J. 42.
25 [1932] A.C. 562.
26 The same applies to cattle driven along the highway. As G. L. Williams says, the defence is inevitable accident, i.e., no breach: Liability for Animals, p. 370.
27 See Stapley v. Gypsum Mines Ltd. [1953]Google Scholar A.C. 663, on which see C. J. Hamson in [1954] C.L.J. 36. In Shatwell's Case [1965]Google Scholar A.C. 656, their Lordships held (Viscount Radcliffe dissenting) that James's assent to the illegal test was a cause of George's injury: Shaffer, N. D., “Volenti non fit injuria,” 1965 S.L.T. 137.Google Scholar
28 Chapman v. Ellesmere [1932] 2 K.B. 431.Google Scholar
29 Wm. Leitch & Co. Ltd. v. Leydon [1931] A.C. 90 at p. 109Google Scholar; cf. Park v. J. Jobson & Son [1945] 1 All E.R. 222.Google Scholar
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32 Cook v. Midland Great Western Railway of Ireland [1909]Google Scholar A.C. 229.
33 Manning v. Manning [1950] 1 All E.R. 602Google Scholar; cf. Mudge v. Mudge [1951] P. 173.Google Scholar
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36 Smith v. Moss [1940] 1 K.B. 424Google Scholar; Broom v. Morgan [1953] 1 Q.B. 597.Google Scholar
37 [1965] A.C. 656 at p. 686. So also the position of diplomats: Dickinson v. Del Solar [1930] 1 K.B. 376Google Scholar; Zoernsch v. Waldock [1964] 1 W.L.R. 675.Google Scholar
38 Duck v. Mayeu [1892] 2 Q.B. 511; Apley Estates Co. Ltd. v. De Bernales [1947]Google Scholar Ch. 217; Cutler v. McPhail [1962] 2 Q.B. 292.Google Scholar
39 Phillips v. Clagett (1843) 11 M. & W. 84.
40 [1965] A.C. 656 at p. 676.
41 Ibid, at pp. 686, 688.
42 Ibid, at p. 693.
43 Ibid, at pp. 693–694.
44 [1953] A.C. 563.
45 [1965] A.C. 656 at p. 681.
46 James, F., “Assumption of Risk” (1952) 61 Yale L.J. 141Google Scholar; Shaffer, N. D., “Volenti non fit injuria,” 1965 S.L.T. 137.Google Scholar
47 The author discussed this and other ways in “The Value of a Value-study of Law” (1965) 28 M.L.R. 407.
48 This case is based on a problem once set in the Law Tripos.
49 Some statutory duties are designed to guard against lapses and aberrations on the part of employees. Such lapses are not treated as contributory negligence. It is submitted that A has here been guilty of more than a mere lapse.
50 Letang v. Ottawa Electric Ry. [1926] A.C. 725Google Scholar; R. v. Williams [1923] 1 K.B. 340Google Scholar; cf. R. v. Clarence (1888) 22 Q.B.D. 23. This is one difference between consent and contributory negligence, viz., a greater degree of deliberation before volenti applies, whereas a plaintiff is contributorily negligent when he does not think as he should: see Reid, Lord in Shatwell [1965] A.C. 656 at p. 672.Google Scholar Other differences: (i) contributory negligence reduces damages, consent is a total defence; (ii) contributory negligence is a defence to a breach of statutory duty, after Shatwell consent is only a defence to a very limited extent.
51 Thomas v. Quartermaine (1887) 18 Q.B.D. 685 at p. 696.
52 Employees: Smith v. Baker & Sons [1891] A.C. 325; see also the progressive whittling down of the defence of common employment until its abolition by the Law Reform (Personal Injuries) Act, 1948.
53 Farr v. Butters Bros. & Co. [1932] 2 K.B. 606Google Scholar; cf. Denny v. Supplies and Transport Co. Ltd. [1950] 2 K.B. 374.Google Scholar So, too, where the defendant has committed a breach of a public duty, plaintiff may recover if he has acted reasonably: Clerk & Lindsell on Torts, § 91; F. James, op. cit. Similarly, it is no defence that the plaintiff “came to a nuisance.”
54 R. v. Donovan [1934] 2 K.B. 498 at p. 507Google Scholar; R. v. Coney (1882) 8 Q.B.D. 534.
55 R. v. Coney (last note) at p. 553; cf. N.C.B. v. England [1954] A.C. 403Google Scholar; Winfield, Province of the Law of Tort, p. 82. In Shatwell breach of the regulation was an offence and no action was held to lie.
56 e.g., Road Traffic Act, 1960, s. 151; Clerk & Lindsell on Torts, §§ 733, 804.
57 Wooldridge v. Sumner and Another [1963] 2 Q.B. 43 at p. 66Google Scholar; Scruttons Ltd. v. Midland Silicones Ltd. [1962] A.C. 446.Google Scholar
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59 Wilsons & Clyde Coal Co. Ltd. v. English [1938] A.C. 57Google Scholar; Riverstone Meat Co. Pty. Ltd. v. Lancashire Shipping Co. Ltd. [1961] A.C. 807Google Scholar; The Lady Gwendolen [1965] 3 W.L.R. 91Google Scholar, on which see Hamson, C. J. in [1965] C.L.J. 195.Google Scholar
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61 Baddeley v. Earl Granville (1887) 19 Q.B.D. 423 at p. 426.
62 Groves v. Wimborne (Lord) [1898] 2 Q.B. 402 at p. 417.
63 [1965] A.C. 656 at p. 688.
64 Unreported; quoted by Brodetsky, P., “Employees’ Joint Breach of Statutory Duty: Volenti not Barred” (1964) 27 M.L.R. 735.Google Scholar
65 Chaplin v. Hawes (1828) 3 Car. & P. 554.
66 Pearce, Lord [1965] A.C. 656 at p. 687Google Scholar (Viscount Radcliffe concurring); Lord Donovan at p. 693.
67 P. Brodetsky, op. cit.