The case analysis is written by Darshika Lodha, a first-year student of Unitedworld School of Law, Karnavati University. In this case, the author briefly explained the case of Smith v. Charles and Sons.


Its main aim is to provide instructions to the reader on how to read a case to define, extract and, where appropriate, apply its decision ratio. For those studying at the Bar have, technically, read several cases at the academic level, and have learned to do so. Yet you might never have given much in-depth consideration to the method of reading the case or determining precisely what the ratio of the case is. Anecdotal evidence also indicates that some have, to a very large degree, made use of case books containing only digests of cases, or merely read the headnote of the case, which provides a brief description of what the author considers to be the case.

Legal Maxim Used




Date of Judgment

21 JULY 1891

Equivalent Citation

[1891] UKHL 2






The plaintiff was a contractor hired by the railway constructors of the defendant. While the stones were used, they were raised from the cutting through a crane. The plaintiff got out of the way once he saw that the men were jibing over his head. One of his fellow employees had previously protested to the manager at the plaintiff’s hearing about the danger of slinging stones over their heads, and the plaintiff himself told the crane driver that it was not safe. When he was operating on the drill, a stone dropped on him in the process of being lifted and caused severe injuries. There was no warning that the stone would be jibbed in that direction. The plaintiff’s attention was focused on a hammer, and although, thus, he was unable to take precautions himself, the stone was negligently slung over his head without sufficient care to cause it to fall. At the trial in the county court, the defendant’s counsel argued that the plaintiff had engaged himself in the work on his admission and on his knowledge of the risk. The jury found (1) that the machine used to extract the stones from the cutting as a whole was not sufficiently appropriate for the task for which it was applied; (2) that the failure to provide a means of alarm when the stones were being jibbed was a fault in the method, the job, the machinery and the plate; (3) that the employer or any of the persons employed by the employer to take care of the above-mentioned cases were guilty of negligence in not fixing the defect; and (4) that the plaintiff was not guilty of negligence and did not knowingly engage in risky employment with knowledge of its harm. The appeal to the Court of Appeal was upheld, primarily on the basis that there was no proof of wrongdoing on the part of the defendants. The plaintiff appealed to the House of Lords.

Issues Before the Court

  1. Whether the plaintiff consented to the risk?
  2. Whether there was any evidence of negligence?

Ratio of the Case

In this case, as I have pointed out, there was no notice and no signal, but the employer or his agent employed the plaintiff, in circumstances such as his disability, to use his eyes to defend himself against the danger. It seems to me, therefore, that this is a case in which the plaintiff is entitled to recover, and therefore transfer your Lordships to the judgment of the Court of Appeal. The arrangement between the employer and the employee includes, on the part of the former, the duty to take good care to provide proper equipment and to keep them at unreasonable risk. Whatever the dangers of employment which the employed individual undertakes, the possibility of negligence on the part of the employer, and the development or enhancement of the hazard, must not be counted among them. If then, the employer, therefore, refuses to fulfil his duty towards the working person, I do not think that, if he does not automatically refuse to continue his work, it is valid to suggest that he is willing that his employer will thereby behave towards him. I assume that it would be contrary to the fact that he either accepted or assented to the act or default he spoke of as false, and I do not know of any theory of law which would lead to the inference that the maxim, volenti not-fit injuria, should be appropriate.

Final Judgment

It was held by the House of Lords, in reversing the judgment of the Court of Appeal (Lord Bramwell dissenting), that the mere fact that the plaintiff had endured and proceeded to work with complete knowledge and comprehension of the danger resulting from the deliberate lack of notice did not preclude him from recovering; that the facts should support the finding that the plaintiff did not send a notice.


The ruling of the House of Lords in Smith v. Baker and Sons [1891] was the first case in which the protection of volenti non-fit injuria was limited in the case of employees.  It is a matter of fact, in each case, whether the experience of the complainant in particular circumstances made it so unwise for him to do what he did as constituting negligence on the part of the respondent. If a worker engaged in employment that is not dangerous in itself is exposed to a danger emerging from an action in another department over which he has little control-the danger generated or exacerbated by incompetence on the part of the employer-the mere fact that he undertakes or proceeds to do so with full knowledge and awareness of the danger is not sufficient to prove that he has undertaken to do so. The question of whether he took the risk in this way is a matter of fact and not of law. This applies both to common law and to cases arising under the Employers Liability Act 1880.

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