Imperial Chemical Industries Ltd v Shatwell
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Viscount Radcliffe,Lord Hodson,Lord Pearce,Lord Donovan |
| Judgment Date | 06 July 1964 |
| Judgment citation (vLex) | [1964] UKHL J0706-2 |
| Date | 06 July 1964 |
| Court | House of Lords |
[1964] UKHL J0706-2
Lord Reid
Viscount Radcliffe
Lord Hodson
Lord Pearce
Lord Donovan
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Imperial Chemical Industries Limited against Shatwell, that the Committee had heard Counsel, as well on Tuesday the 5th, as on Wednesday the 6th and Thursday the 7th, days of May last, upon the Petition and Appeal of Imperial Chemical Industries Limited, of Imperial Chemical House, Millbank, London, S.W.1, praying. That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 29th of July 1963, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of George Edmund Shatwell, lodged in answer to the said Appeal:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 29th day of July 1963, complained of in the said Appeal, be, and the same is hereby, Reversed, and that Judgment be entered for the Defendants: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Courts below, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments.
My Lords,
This case arises out of the accidental explosion of a charge at a quarry belonging to the Appellants which caused injuries to the Respondent George Shatwell and his brother, James, who were both qualified shotfirers. On 8th June, 1960, these two men and another shotfirer, Beswick, had bored and filled 50 shot holes and had inserted electric detonators and connected them up in series. Before firing it was necessary to test the circuit for continuity. This should have been done by connecting long wires so that the men could go to a shelter some 80 yards away and test from there. They had not sufficient wire with them and Beswick went off to get more. The testing ought not to have been done until signals had been given so that other men could take shelter and these signals were not due to be given for at least another hour.
Soon after Beswick had left George said to his brother "Must we test them", meaning shall we test them, and James said "yes". The testing is done by passing a weak current through the circuit in which a small galvanometer is included and if the needle of the instrument moves when a connection is made the circuit is in order. So George got a galvanometer and James handed two short wires to him. Then George applied the wires to the galvanometer and the needle did not move. This showed that the circuit was defective so the two men went round inspecting the connections. They saw nothing wrong and George said that that meant there was a dud detonator somewhere, and decided to apply the galvanometer to each individual detonator. James handed two other wires to him and George used them to apply the galvanometer to the first detonator. The result was an explosion which injured both men.
This method had been regularly used without mishap until the previous year. Then some research done by the Appellants showed that it might be unsafe and in October, 1959, the Appellants gave orders that testing must in future be done from a shelter and a lecture was given to all the shotfirers, including the Shatwells, explaining the position. Then in December, 1959, new statutory regulations were made (1959 No. 2259) probably because the Ministry had been informed of the results of the Appellants' research. These regulations came into operation in February, 1960, and the Shatwells were aware of them. But some of the shotfirers appear to have gone on in the old way. An instance of this came to the notice of the management in May, 1960, and the management took immediate action and revoked the shotfiring certificate of the disobedient man, and told the other shotfirers about this. George admitted in evidence that he knew all this. He admitted that they would only have had to wait ten minutes until Beswick returned with the long wires. When asked why he did not wait, his only excuse was that he could not be bothered to wait.
George now sues the Appellants on the ground that he and his brother were equally to blame for this accident, and that the Appellants are vicariously liable for his brother's conduct. He has been awarded £1,500 being half the agreed amount of his loss. There is no question of the Appellants having been in breach of the regulation because the duty under the regulation is laid on the shotfirer personally. So Counsel for George frankly and rightly admitted that if George had sued James personally instead of suing his employer the issue would have been the same. If this decision is right it means that if two men collaborate in doing what they know is dangerous and is forbidden and as a result both are injured, each has a cause of action against the other.
The Appellants have two grounds of defence, first that James' conduct had no causal connection with the accident the sole cause being George's own fault, and secondly volenti non fit injuria. I am of opinion that they are entitled to succeed on the latter ground but I must deal shortly with the former ground because it involves the decision of this House in Stapley v. Gypsum Mines Ltd. [1953] A.C. 663, and I think there has been some misunderstanding of that case. Stapley and a man named Dale were working together in the mine. They found that a part of the roof was dangerous. They tried to bring it down but failed. Then, contrary to the foreman's orders and to statutory regulations, they decided to go on with their ordinary work and Stapley went to work below that part of the roof. It fell on him and he was killed. The only issue before the House was whether the conduct of Dale had contributed to cause the accident, and the House decided by a majority that it had. There was little, if any, difference of opinion as to the principles to be applied; the difference was in their application to the facts of the case. The case gives authoritative guidance on the question of causation but beyond that it decides nothing. It clearly appears from the argument of Counsel that the defence volenti non fit injuria was never taken and nothing about it was said by any of their Lordships.
Applying the principles approved in Stapley's case I think that James' conduct did have a causal connection with this accident. It is far from clear that George would have gone on with the test if James had not agreed with him. But perhaps more important James did collaborate with him in making the test in a forbidden and unlawful way. His collaboration may not have amounted to much but it was not negligible. If I had to consider the allocation of fault I would have difficulty in finding both men equally to blame. If James had been suing in respect of his damage it would I think be clear that both had contributed to cause the accident but that the greater part of the fault must be attributed to George. So I do not think that the Appellants could succeed entirely on this defence and I turn to consider their second submission.
The defence volenti non fit injuria has had a chequered history. At one time it was very strictly applied. Today one can hardly read the robust judgment of Cockburn C.J. in Woodley v. The Metropolitan District Railway Co. 2 Ex. D. 384 without some astonishment. But one must remember that his views were in line with those of the judges who a generation or two before had invented the doctrine of common employment. Then the tide began to turn. The modern view can be seen emerging in the judgments of the majority in Yarmouth v. France 19 Q.B.D. 647. No one denied that a man who freely and voluntarily incurs a risk of which he has full knowledge cannot complain of injury if that risk materialises and causes him damage. The controversy was whether acceptance of the risk can (or must) be inferred from the mere fact that the man goes on working in full knowledge of the risk involved. The point was finally settled by this House in Smith v. Baker & Sons [1891] A.C. 325. The opposing views were tersely stated by Hawkins J. in Thrussell v. Handyside 20 Q.B.D. 359—"his poverty, not his will, consented to incur the danger" (p. 364)—and by Lord Bramwell in Membery v. Great Western Railway Co. 14 App. Cas. 179:
"The master says here is the work, do it or let it alone… . The master says this, the servant does the work and earns his wages, and is paid, but is hurt. On what principle of reason or justice should the master be liable to him in respect of that hurt?"
The ratio in Smith v. Baker was I think most clearly stated by Lord Herschell:
"The maxim is founded on good sense and justice. One who has invited or assented to an act being done towards him cannot, when he suffers from it, complain of it as a wrong. The maxim has no special application to the case of employer and employed, though its application may well be invoked in such a case".
Then he pointed out that a person undertaking to do work which is intrinsically dangerous, notwithstanding that care has been taken to make it as little dangerous as possible, cannot if he suffers complain that a wrong has been done him. And then he continued:
"But the argument for the Respondents went far beyond this. The learned counsel contended that, even though there had been negligence on the part of the Defendants, yet the risk created by it was known...
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