AREA: Essential Conditions for Application of Volenti Non-Fit Injuria.
FACTS:
The plaintiff was a workman employed by the defendant railway contractors and had been employed for two months before the accident on working a drill for rock-cutting purposes. Whilst he was thus employed stones were being lifted from the cutting using a crane. Sometimes the stones were passed over the place where the plaintiff was working. Whilst he was working the drill, a stone, in the course of being lifted, fell upon him and caused serious injuries. No warning was given that the stone was to be jibbed in that direction. The plaintiff stated in his evidence that he got out of the way whenever he saw that the men were jibbing over his head.
But at the time that the stone fell upon him he was working the drill and so did not see the stone above. One of his fellow workmen had in the plaintiff’s hearing previously complained to the manager of the danger of slinging stones over their heads and the plaintiff himself had told the crane driver that it was not safe.
The defendant pleaded that the plaintiff knew the risk. The lower Court found no evidence of negligence by the defendant.
ISSUE:
Does the mere continuance of employment, with knowledge of risk amount to consent? And with this preclude the employee from recovering damages from the employer’s breach of duty owing to negligence?
JUDGMENT:
W.r.t application of the maxim about cases involving employer-employee:
A person who is engaged to perform a dangerous operation takes upon himself the risks incidental thereto, here ‘dangerous operation’ and ‘incidental risks’ are properly defined.
Where a person undertakes to carry out intrinsically dangerous work, notwithstanding that due care is taken to render it as little dangerous as possible. If the person freely consents to the work, would not be entitled to complain and bring an action. But where is dangerous and the risk is enhanced by the defendants’ negligence, the plaintiff will not be deemed to have given consent.
If with the knowledge, the person continued to perform the work and sustained foreseen injury, an action can not be maintained to recover damages for the same.
Maxim will not apply in a case where the injury to the employee has been created or enhanced by the negligence of the employer. Mere continuance of service, with the knowledge of the risks, does NOT preclude the employee if the injury results from negligence on the part of the employer.
The contract of employment necessitates the employer with duty of taking reasonable care to provide and maintain proper working appliances and conditions. Breach of this duty is destructive to the defense of volenti non-fit injuria.
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