Imperial Chemical Industries Ltd v Shatwell

The defence of volenti non fit injuria may defeat a claim arising from a dangerous joint operation where the claimant freely participated with full knowledge of the risk. It is a complete defence where fellow employees deliberately disobey safety instructions, the employer is personally blameless and liability is alleged solely through vicarious responsibility for one participant.

A statutory prohibition does not invariably exclude the defence. Public policy prevents an employer from relying on consent to excuse its own breach of a statutory duty imposed for workers’ protection. That restriction does not govern a claim founded on employees’ joint breach of duties imposed personally upon them.

Two qualified shotfirers employed by the appellant deliberately tested an explosive circuit in the open. They knew that Quarries (Explosives) Regulations, 1959, regulation 27(4), and their employer’s instructions required testing from shelter. A charge exploded and injured both men.

One shotfirer claimed that his brother had participated in the negligent and unlawful operation, making their employer vicariously liable. Elwes J awarded half the agreed damages after allowing for contributory negligence. The Court of Appeal upheld that decision, considering itself constrained by Stapley v Gypsum Mines Ltd [1953] AC 663.

The issues were whether the brother’s participation caused the injury and whether the claimant’s voluntary acceptance of the known risk afforded the employer a complete defence.

1. The appeal was allowed unanimously. Lord Reid delivered the principal analysis of volenti non fit injuria. Viscount Radcliffe, Lord Hodson, Lord Pearce and Lord Donovan agreed that the employer was not liable, although Viscount Radcliffe also advanced an alternative analysis of causation and joint enterprise.

2. Per Lord Reid, Lord Hodson, Lord Pearce and Lord Donovan, the brother’s participation was not negligible. Applying Stapley v Gypsum Mines Ltd [1953] AC 663, the forbidden testing was a joint operation. The fact that the claimant’s hand performed the final act did not prevent the brother’s conduct from contributing causally to the explosion. Stapley concerned causation and had not considered volenti.

3. Per Lord Reid, the claimant had freely invited, aided and participated in the deliberate disobedience. He fully understood that testing could cause an explosion. A person cannot deny appreciation merely because the risk was remote or because he chose not to believe authoritative warnings. Lord Hodson, Lord Pearce and Lord Donovan likewise found a genuine and voluntary acceptance of the known risk, without economic, social or other pressure.

4. Per Lord Reid, where fellow employees deliberately combine to disobey a safety order with full knowledge of the risk, volenti non fit injuria is a complete defence if the employer is personally blameless and liability is alleged only vicariously. This differs from careless collaboration, for which contributory negligence provides only a partial defence. Lord Pearce and Lord Donovan reasoned that the participants’ tacit agreement entailed a waiver of claims between them. Since the brother had a complete defence, there was no tort for which the employer was vicariously liable.

5. Per Lord Reid, Lord Hodson, Lord Pearce and Lord Donovan, the rule preventing an employer from invoking volenti against its own breach of a protective statutory duty did not apply. Regulation 27(4) imposed the relevant duty personally on each shotfirer. The employer had taken every reasonable step to secure compliance and had committed no breach. Public policy did not require an innocent employer to compensate employees for the consequences of their deliberate joint offence.

6. Viscount Radcliffe additionally considered that participants in a single joint unlawful enterprise, acting as agents of one another to achieve it, may each be regarded as the author of his own injury. He nevertheless associated himself particularly with Lord Pearce’s reasoning on volenti and statutory protection.

1. House of Lords: Allowed the employer’s appeal unanimously. The claimant’s voluntary acceptance of the known risk afforded a complete defence.

2. Court of Appeal: Upheld the judgment for the claimant. The court considered itself constrained by Stapley v Gypsum Mines Ltd [1953] AC 663, although it regarded the result as unjust.

3. High Court: Elwes J gave judgment for the claimant and reduced the agreed damages by one-half for contributory negligence.