COURT OF APPEAL BOWATER v ROWLEY REGIS CORPORATION [1944] KB 476 March 27 1944 Full text FACTS The plaintiff,

a carter employed to collect road sweepings by a municipal corporation, was ordered by his foreman to take out a horse which, to the knowledge of both of them, had run away on at least two previous occasions when driven by a fellow employee. The carter protested, but the foreman said that it was an order of the borough surveyor. Some weeks later, the horse ran away and the plaintiff was thrown from his cart and suffered personal injuries. In an action against the corporation by the plaintiff, alleging that they had failed in their duty to provide him with a horse which was safe and suitable for the work which he had to perform. SCOTT LJ: With regard to the doctine volenti non fit injuria I would add one reflection of a general kind. That general maxim has to be applied with specially careful regard to the varying facts of human affairs and human nature in any particular case just because it is concerned with the intangible factors of mind and will. For the purpose of the rule, if it be a rule, a man cannot be said to be truly willing unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will. Without purporting to lay down any rule of universal application, I venture to doubt whether the maxim can very often apply in circumstances of an injury to a servant by the negligence of his master GODDARD LJ: The maxim volenti non fit injuria is one which in the case of master

and servant is to be applied with extreme caution. Indeed, I would say that it can hardly ever be applicable where the act to which the servant is said to be volens arises out of his ordinary duty, unless the work for which he is engaged is one in which danger is necessarily involved. Thus, a man in an explosives factory must take the risk of an explosion occurring in spite of the observance and provision of all statutory regulations and safeguards. A horse-breaker must take the risk of being thrown or injured by a restive or unbroken horse. It is an ordinary risk of his employment. A man, however, whose occupation is not one of a nature inherently dangerous but who is asked or required to undertake a risky operation is in a different position. To rely on this doctrine the master must show that the servant undertook that the risk should be on him. It is not enough that, whether under protest or not, he obeyed an order or complied with a request which he might have declined as one which he was not bound either to obey or to comply with. It must be shown that he agreed that what risk there was should lie on him. I do not mean that it must necessarily be shown that he contracted to take the risk, as that would involve consideration, though a simple way of showing that a servant did undertake a risk on himself would be that he was paid extra for so doing, and in some occupations danger money is often paid. A corporation carter or dustman is not like a horse-breaker because he is also a horse-keeper. It is no part of his duty to break or tame the horse which draws the dust cart. Nor is it right to inquire into the mental processes that may lead him to do what he is told or to consider what degree of appreciation of the risk was apparent to him. As Lord Esher MR said in Yarmouth v France 19 QBD 657, that would be to say that, for the same accident, an unintelligent man might recover, while a more intelligent one would not. For this maxim or doctrine to apply it must be shown that a servant who is asked or required to use dangerous plant is a volunteer in the fullest sense, that, knowing of the danger, he expressly or impliedly said that he would do the job at his own risk and not at that of his master. The evidence in this case fell far short of that, and, in my opinion, the plaintiff was entitled to recover. The appeal is allowed, with costs, and the case must go down for a new trial on damages only unless the parties will agree to this court assessing the damages.

DU PARCQ LJ: It was contended by the defendants counsel at the trial that the plaintiff had willingly assumed whatever risk was associated with the task allotted to him. I so translate the Latin - Volenti non fit injuria I cannot persuade myself that the evidence justifies this view ... It is true that for about twelve years the plaintiff had driven horses for the corporation, and in that sense he may perhaps be called an experienced horseman. There is no evidence, however, that the horses usually selected to draw refuse carts upon the highways or in the pleasances of Rowley Regis were mettlesome or intractable animals, or that it was a term, express or implied, of the plaintiffs engagement that he should be prepared to train or break young and unruly horses. The inference which I draw from the evidence is that the horse in question possesses qualities which, be they good or bad, made him a striking exception to the common run of cart-horses with which a carter to the Mayor, Aldermen and Burgesses of Rowley Regis would become familiar I am satisfied that the defendants were negligent in ordering the plaintiff to drive this horse, or (to state the facts in another way) in providing the plaintiff with a horse which was dangerously unfitted for the particular task which was to be performed. Having regard to all that the evidence tells us of the plaintiff on the one hand, and of the horse on the other, I am satisfied that an employer acting with reasonable care would not have ordered this reluctant servant to take charge of the horse, which he avowed himself to be incapable of controlling I am therefore of opinion that the plaintiffs injuries were due to the defendants negligence Little more need be said about the plea of volenti non fit injuria. In my opinion, there is nothing in the facts of this case to show that the plaintiff was volens according to the true meaning of the maxim as it has been interpreted in decisions which are binding on us. I will content myself with the citation of one passage from the speech of Lord Herschell in Smith v Baker [1891] AC 325, 365, which, in my judgment, may properly be applied to the facts of this case:

Where a servant has been subjected to risk owing to a breach of duty on the part of his employer, the mere fact that he continues his work, even though he knows of the risk and does not remonstrate, does not preclude his recovering in respect of the breach of duty, by reason of the doctrine volenti non fit injuria, which in my opinion has no application to such a case. The fact that in this case the plaintiff did remonstrate makes his case so much the stronger. For these reasons I agree that the appeal should be allowed and I concur in the order proposed by Goddard LJ. Full text SCOTT LJ: I have read the judgments of my brethren and agree with their conclusions and with the reasoning by which they reach them. I would add, however, that not only would it have been wrong for us to allow the defendants now to rely on the pleaded defence of no negligence when they had abandoned it at the trial, but also, as my brother du Parcq says, the facts of the case preclude the possibility of that defence succeeding, for there was clearly prima facie evidence of negligence on the part of the defendants, and their counsel elected to call no witnesses. With regard to the doctine volenti non fit injuria I would add one reflection of a general kind. That general maxim has to be applied with specially careful regard to the varying facts of human affairs and human nature in any particular case just because it is concerned with the intangible factors of mind and will. For the purpose of the rule, if it be a rule, a man cannot be said to be truly willing unless he is in a position to choose freely, and freedom of choice predicates, not only full knowledge of the circumstances on which the exercise of choice is conditioned, so that he may be able to choose wisely, but the absence from his mind of any feeling of constraint so that nothing shall interfere with the freedom of his will. Without purporting to lay down any rule of universal application, I venture to doubt whether the maxim can very often apply in

circumstances of an injury to a servant by the negligence of his master. When the servant is engaged specifically for the performance of a dangerous duty and the presence of the danger is a mutually recognized element in the bargain for remuneration, the servant obviously undertakes the risk for the sake of higher pay. A good illustration is the task of the house-breaker. We have all of us watched its performance during the war on bomb-shattered buildings in the course of demolition and marvelled at its dangers. The task of a horse-breaker is similar, but in contracts of employment where the service is hazardous and for that reason highly paid it is not easy to imagine a circumstance in which the hazard causing the hurt to the servant is also attributable to the negligence of the master, and, unless it is, the servant who is injured suffers no injuria in the legal sense of an actionable wrong, which is the condition of the maxim. I agree with the order proposed by my brother Goddard. GODDARD LJ: In the action out of which this appeal arises. the plaintiff founded his case entirely on the allegation that the defendants failed in their duty to provide him wit a horse safe and suitable for the work which he had to perform. On the appeal Mr. Edgedale, who did not appear in the case below, sought to uphold the judgment on the ground that no negligence was proved. He appealed to the courts knowledge of the disposition of four-year-olds, saying that horses of that age were the equivalent of boys of twelve, though he did not add that at that age boys are often mischievous young rascals, but judges have no judicial knowledge of the habits of horses, not even if they have been stewards of the Pegasus Club. Had they desired to dispute negligence and to say that this was just the sort of animal one would expect to find between the shafts of a municipal dust cart, the defendants could have called witnesses. They did not do so, and it would be quite wrong to allow them in this court to rely on a defence, which, though pleaded, was not persisted in at the trial and is quite inconsistent with the case on which they relied. Their whole case was volenti non fit injuria, one which Mr. Edgedale frankly admitted he felt was difficult to support after Mr. Morris elaborate review of the authorities in the course of his argument. It is only fair to the learned judge to say that many of the cases cited to us were not before him. Indeed, I gather from his judgment that, had he not pressed for some

citation of authority and had not an adjournment fortunately intervened, none would have been cited, counsel on either side feeling, I suppose, that the facts were so clear in his favour that authority was superfluous. The maxim volenti non fit injuria is one which in the case of master and servant is to be applied with extreme caution. Indeed, I would say that it can hardly ever be applicable where the act to which the servant is said to be volens arises out of his ordinary duty, unless the work for which he is engaged is one in which danger is necessarily involved. Thus, a man in an explosives factory must take the risk of an explosion occurring in spite of the observance and provision of all statutory regulations and safeguards. A horse-breaker must take the risk of being thrown or injured by a restive or unbroken horse. It is an ordinary risk of his employment. man, however, whose occupation is not one of a nature inherently dangerous but who is asked or required to undertake a risky operation is in a different position. To rely on this doctrine the master must show that the servant undertook that the risk should be on him. It is not enough that, whether under protest or not, he obeyed an order or complied with a request which he might have declined as one which he was not bound either to obey or to comply with. It must be shown that he agreed that what risk there was should lie on him. I do not mean that it must necessarily be shown that he contracted to take the risk, as that would involve consideration, though a simple way of showing that a servant did undertake a risk on himself would be that he was paid extra for so doing, and in some occupations danger money is often paid. This, in my opinion, is the result of Yarmouth v. France ; Smith v. Baker , and Monaghan v. Rhodes , and further citation of authority in support of what I think is now a well-settled principle is unnecessary. Though the question in the last resort is one of fact I find myself unable to agree with Singleton J. on the evidence in this case. I venture to think he approached the case from a wrong angle. A corporation carter or dustman is not like a horse-breaker because he is also a horse- keeper. It is no part of his duty to break or tame the horse which draws the dust cart. Nor is it right to inquire into the mental processes that may lead him to do what he is told or to consider what degree of appreciation of the risk was apparent to him. As Lord Esher M.R. said in Yarmouth v. France , that would be to say that, for the same accident, an unintelligent man might

recover, while a more intelligent one would not. For this maxim or doctrine to apply it must be shown that a servant who is asked or required to use dangerous plant is a volunteer in the fullest sense, that, knowing of the danger, he expressly or impliedly said that he would do the job at his own risk and not at that of his master. The evidence in this case fell far short of that, and, in my opinion, the plaintiff was entitled to recover. The appeal is allowed, with costs, and the case must go down for a new trial on damages only unless the parties will agree to this court assessing the damages. DU PARCQ LJ: It was contended by the defendants counsel at the trial that the plaintiff had willingly assumed whatever risk was associated with the task allotted to him. I so translate the Latin in which the learned pleader had preferred to clothe his plea - Volenti non fit injuria. The learned judge thought that the plea was made out. His interpretation of the facts was that the plaintiff had not, as was submitted on his behalf, consented under protest, but that he had merely grumbled before entering upon work which after all, said the learned judge, was his work as an experienced horseman to do. By this I understand Singleton J. to mean that it was implicit in the plaintiffs contract of employment that he should be prepared to deal with such recalcitrant horses as the one with which we are here concerned. With great respect to the learned judge, I cannot persuade myself that the evidence justifies this view. The words experienced horseman. are perhaps ambiguous. It is true that for about twelve years the plaintiff had driven horses for the corporation, and in that sense he may perhaps be called an experienced horseman. There is no evidence, however, that the horses usually selected to draw refuse carts upon the highways or in the pleasances of Rowley Regis were mettlesome or intractable animals, or that it was a term, express or implied, of the plaintiffs engagement that he should be prepared to train or break young and unruly horses. The inference which I draw from the evidence is that the horse in question possesses qualities which, be they good or bad, made him a striking exception to the common run of cart-horses with which a carter to the Mayor, Aldermen and Burgesses of Rowley Regis would become familiar. At the trial the learned counsel for the defendants suggested, no doubt on instructions, that the corporation employees thought the horse a

devil, and he may well have been right. No evidence was called on behalf of the defendants, so that we do not know in what language the surveyor and foreman would have expressed their opinion of the horse. As I differ from the learned judges view that the plaintiff was only being called on to do what he had already contracted to do, it will be necessary to consider whether there is any other ground on which it can properly be said that he willingly assumed whatever risk there was, although it must be added that Mr. Edgedale did not suggest that any such ground existed. He sought to support the decision of the learned judge by contending that no negligence on the part of the defendants had been proved, and it will be convenient to deal at once with that contention. Now the case was so conducted by the learned counsel for the defendants at the trial (who was not, of course, Mr. Edgedale), that the question of negligence, as the judge says in his judgment, was not really argued. In the circumstances we should be doing an injustice to the plaintiff if we allowed the defendants to seek a decision in their favour in this court on a point which they withdrew from the area of controversy at the trial. I will add, however, that, on the undisputed evidence, I am satisfied that the defendants were negligent in ordering the plaintiff to drive this horse, or (to state the facts in another way) in providing the plaintiff with a horse which was dangerously unfitted for the particular task which was to be performed. Having regard to all that the evidence tells us of the plaintiff on the one hand, and of the horse on the other, I am satisfied that an employer acting with reasonable care would not have ordered this reluctant servant to take charge of the horse, which he avowed himself to be incapable of controlling. Mr. Edgedale was concerned to defend the character of the horse against any imputation of vice or ferocity. I am prepared to believe that the animal possesses all the nobility of character which is the proper attribute of his species. But the noblest of animals may be ill-fitted for a life of inactivity and humdrum tasks. So it may have been with this one, whether or not his vagaries are to be ascribed (as Mr. Edgedale suggested that they should be) to the inexperience and impetuosity of youth. I am therefore of opinion that the plaintiffs injuries were due to the defendants negligence, and I cannot agree with the learned judges view that the plaintiff was encountering only the kind of risk which he had accepted as part of his regular employment. Little more need be said about the plea of volenti non fit injuria. In my opinion,

there is nothing in the facts of this case to show that the plaintiff was volens according to the true meaning of the maxim as it has been interpreted in decisions which are binding on us. I will content myself with the citation of one passage from the speech of Lord Herschell in Smith v. Baker , which, in my judgment, may properly be applied to the facts of this case: Where a servant has been subjected to risk owing to a breach of duty on the part of his employer, the mere fact that he continues his work, even though he knows of the risk and does not remonstrate, does not preclude his recovering in respect of the breach of duty, by reason of the doctrine volenti non fit injuria, which in my opinion has no application to such a case. The fact that in this case the plaintiff did remonstrate makes his case so much the stronger. For these reasons I agree that the appeal should be allowed and I concur in the order proposed by Goddard L.J.