Imperial Chemical Industries Ltd v Shatwell

House of Lords
LORD REID, VISCOUNT RADCLIFFE, LORD HODSON, LORD PEARCE AND LORD DONOVAN

LORD REID.
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 8 June 1960, these two men and another shotfirer, Beswick, had bored and filled fifty 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 eighty 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 connexion 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 Statwells, explaining the position. Then in December 1959, new statutory regulationsb were made (SI 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. b The Quarries (Explosives) Regulations, 1959
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's conduct had no causal connexion 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, and I think that 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 (See [1953] AC at p 665) 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 connexion 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 should 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 CJ in Woodley v Metropolitan District Ry Co 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. 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. The opposing views were tersely stated by Hawkins J in Thrussell v Handyside ([1886–90] All ER Rep 830 at p 834, (1888), 20 QBD 359 at p 364)—“his poverty, not his will, consented to incur the danger“—and by Lord Bramwell in Membery v Great Western Ry Co ((1889), 14 App Cas 179 at p 188):
“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 & Sons was I think most clearly stated by Lord Herschell ([1891–94] All ER Rep at p 87, [1891] AC at p 360):
“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 ([1891–94] All ER Rep at p 87, [1891] AC at p 360) 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 ([1891–94] All ER Rep at p 87, [1891] AC at p 360.):
“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 to the plaintiff; and inasmuch as he continued in the defendants' employment, doing their work under conditions, the risk of which he appreciated, the maxim, volenti non fit injuria, applied, and he could not recover.”
And later he said ([1891–94] All ER Rep at p 88, [1891] AC at p 362):
“If, then, the employer thus fails in his duty towards the employed, I do not think that because he does not straightway refuse to continue his service, it is true to say that he is willing that his employer should thus act towards him. I believe it would be contrary to fact to assert that he either invited or assented to the act or default which he complains of as a wrong.”
More recently it appears to have been thought in some quarters that, at least as between master and servant, volenti non fit injuria is a dead or dying defence. That, I think, is because in most cases where the defence would now be available it has become usual to base the decision on contributory negligence. Where the plaintiff's own disobedient act is the sole cause of his injury, it does not matter in the result whether one says 100 per cent contributory negligence or volenti non fit injuria; but it does matter in a case like the present. If we adopt the inaccurate habit of using the word “negligence” to denote a deliberate act done with full knowledge of the risk, it is not surprising that we sometimes get into difficulties.

I think that most people would say, without stopping to think of the reason, that there is a world of difference between two fellow servants collaborating carelessly, so that the acts of both contribute to cause injury to one of them, and two fellow servants combining to disobey an order deliberately, though they know the risk involved. It seems reasonable that the injured man should recover some compensation in the former case, but not in the latter. If the law treats both as merely cases of negligence, it cannot draw a distinction. In my view the law does and should draw a distinction. In the first case only the partial defence of contributory negligence is available. In the second volenti non fit injuria is a complete defence, if the employer is not himself at fault and is only liable vicariously for the acts of the fellow servant. If the plaintiff invited or freely aided and abetted his fellow servant's disobedience, then he was volens in the fullest sense. He cannot complain of the resulting injury either against the fellow servant or against the master on the ground of his vicarious responsibility for his fellow servant's conduct. I need not here consider the common case where the servant's disobedience puts the master in breach of a statutory obligation, and it would be wrong to decide in advance whether that would make any difference. There remain two other arguments for the respondent which I must deal with.
It was argued that in this case it has not been shown that George had a full appreciation of the risk. In my view it must be held that he had. He knew that those better qualified than he was took the risk seriously. He knew that his employers had forbidden this practice, and that it had then been prohibited by statutory regulation; and he knew that his employers were taking strong measures to see that the order was obeyed. If he did not choose to believe what he was told, I do not think that he could for that reason say that he did not fully appreciate the risk. He knew that the risk was that a charge would explode during testing, and no shotfirer could be in any doubt about the possible consequences of that.
Finally the respondent argues that there is a general rule that the defence of volenti non fit injuria is not available where there has been a breach of a statutory obligation. It would be odd if that were so. In the present case the prohibition of testing except from a shelter had been imposed by the appellants before the statutory prohibition was made. So it would mean that, if the respondent had deliberately done what he did in full knowledge of the risk the day before the statutory prohibition was made, this defence would have been open to the appellants, but if he had done the same thing the day after the regulation came into operation it would not.
The rule is said to have been established by the case of Baddeley v Earl Granville. The facts were straightforward. Safety required that there should be a banksman at the mine where the man was working; but the practice was not to have a banksman at night, and the accident which caused the man's death was due to the fact that there was no banksman on duty when it happened. The defence was that the man knew of this practice and knew the risk which it involved but nevertheless went on working. This case was decided before Smith v Baker & Sons and, as Wills J pointed out ([1886–90] All ER Rep at p 375, (1887), 19 QBD at pp 425, 426), that defence could have succeeded if there had been no question of a breach of a statutory rule but only an unsafe system of work. But it so happened that there was a special statutory rule for this mine which required the presence of a banksman. So the court very wisely avoided the general question which was later decided by Smith v Baker & Sons and founded its judgment on the existence of the statutory rule. Wills J said ([1886–90] All ER Rep at p 375, (1887), 19 QBD at pp 425, 426): “I do not attempt to frame any general rule.” He assumed that volenti non fit injuria is founded on an implied agreement and said ([1886–90] All ER Rep at p 376, (1887), 19 QBD at p 426):
“But it seems to me that if the supposed agreement between the deceased and the defendant, in consequence of which the principle of volenti non fit injuria is sought to be applied, comes to this, that the master employs the servant on the terms that the latter shall waive the breach by the master of an obligation imposed on him by statute, and shall connive at his disregard of the statutory obligation imposed on him for the benefit of others, as well as of himself, such an agreement would be in violation of public policy and ought not to be listened to.”
I entirely agree that an employer who is himself at fault in persistently refusing to comply with a statutory rule could not possibly be allowed to escape liability because the injured workman had agreed to waive the breach. If it is still permissible for a workman to make an express agreement with his employer to work under an unsafe system, perhaps in consideration of a higher wage—a matter on which I need express no opinion—then there would be a difference between breach of a statutory obligation by the employer and breach of his common law obligation to exercise due care: it would be possible to contract out of the latter, but not out of the former type of obligation. But all that is very far removed from the present case.
Baddeley's case was dealing with an employer who was at fault. To my mind it has nothing to do with the case of an employer who was not at fault, and I can find nothing in the judgments to suggest that it has. We were also referred to Wheeler v New Merton Board Mills Ltd when Baddeley's case was approved, but that case carries the matter no farther.
I can find no reason at all why the fact that these two brothers agreed to commit an offence by contravening a statutory prohibition imposed on them as well as agreeing to defy their employer's orders should affect the application of the principle volenti non fit injuria either to an action by one of them against the other or to an action by one against their employer based on his vicarious responsibility for the conduct of the other. I would therefore allow this appeal.

VISCOUNT RADCLIFFE.
My Lords, it sometimes helps to assess the merits of a decision, if one starts by noticing its results and only after doing that allots to it the legal principles on which it is said to depend. Starting in that order, the present case can be summarised as follows. The Shatwell brothers have injured themselves by causing an explosion, to the danger of which they would not have been exposed if they had obeyed the shotfiring regulations, of which they knew, and their employers' instructions. This event is very unfortunate for them; but they were adults, skilled and trained men, and they went into the operation of testing the electrical circuit without taking cover in the face of their knowledge that they ought not to do it in that way. I do not suppose that, having regard to their experience, the method which they adopted seemed to them to be dangerous: on the other hand, they must have been aware, in the light of the recent regulations, that it carried an element of risk and, as between the two of them, each of them must be taken to have accepted the risk of their joint operation. Their employers are in no way to blame. The appellants had done everything that they could to make sure that their shotfirers did not test without taking cover, and it had even arranged their scale of remuneration in a way that removed any temptation to the taking of short cuts. The appellants did not know that the Shatwell brothers were going to break the rules or were breaking the rules.
If the decision appealed from is to stand, the respondent is none the less entitled to make his employers pay him damages in compensation or part compensation for his injury and, if he can get his damages, there cannot be any question that his brother is also entitled to compensation from the employers. To me this seems to be an absurd result, and I think that it so appeared to the members of the Court of Appeal. Moreover, not only can I see no consideration of public advantage that would support it, I can see only elements of public disadvantage in allowing it. For, if an employer is to be liable to pay damages to his employee, even though he has failed in no part of his duty and has done all that vigilance can suggest to deter the employee from the action that produces the damage, the law deprives the employer of any reason to be vigilant, since that protects him no better than inertia: while, on the other hand, the employee is released by the law from a useful stimulus to prudence, if he knows that not even imprudence or disobedience is going to disqualify him from looking to his employer for compensation.
I start, then, with the assumption that something must have gone wrong in the application of legal principles that produce such a result. There is no doubt that the courts below thought that they were bound to arrive at it in deference to the recent decision of this House in Stapley v Gypsum Mines Ltd. I am glad to say that I do not think that the Stapley decision does require this conclusion, if only because the principle volenti non fit injuria was not introduced into the argument of that case and its influence is not reflected in the opinions delivered in the House. This aspect is, I know, a determining point in the views formed by your lordships on the present appeal, and I certainly do not dissent from its importance. I cannot help thinking, however, that, even apart from the defence afforded by the maxim volenti non fit injuria, there is a basic impediment in the path of a plaintiff who seeks to establish liability against a defendant in respect of a negligent or wrongful operation which both have jointly undertaken, and this impediment is really tied up with the nature of causation in the case of a joint enterprise.
Since in this case the employer, if liable at all, is liable only by virtue of vicarious responsibility, I agree that the primary issue, if the respondent, George Shatwell, is to succeed here, is whether he could maintain an action for damages against his brother James. Now, in considering that question one must choose one of two alternative lines of approach and then follow it to its conclusion. On one view George simply blew himself up. That, I think, is the way that this case would be regarded and disposed of by the lay critic. He tested the detonator with the galvanometer, connected the wires that he had asked his brother to find, and the fact that his brother had co-operated in earlier parts of the whole testing operation and had handed him those wires to use would not present itself as ground for saying that that brother's actions had been in part the cause of the damage that he had inflicted on himself. After all, if a man decides to test an unexploded mine by tapping it with a hammer and he asks some one standing by to find the hammer and hand it to him, the complier would not naturally be thought of as being in any degree the author of any injury that is inflicted on the tester if the mine explodes. So, from that point of view, George had only himself to blame and has no right to get damages out of James.
But then there is the other way of looking at the matter, which has been taken both in the High Court and the Court of Appeal and which, I think, is an application of the method of reasoning that was used by the majority of this House in the Stapley case. From this point of view the actual testing of the individual detonator is not the important thing. What is looked at is the whole operation of carrying out the circuit test under the forbidden conditions, and, since James made what was at any rate not a negligible contribution to this operation, it is said that he must be in some degree responsible with his partner of the damage that was the final result of the joint enterprise.
So be it. I think that there are dangers in such a line of reasoning, since it tends to equate the idea of causation with the idea of participation, and I cannot believe that in law the two conceptions are really interchangeable. But let it be that George sues James for damages on this basis, or, for that matter, that James sues George. I do not see how either can succeed against the other, since, where both were joined in carrying through the whole operation and each in what he did was the agent of the other to achieve it, there was nothing that one did against the other that the other did not equally do against himself. This, in my view, is the true result of a joint unlawful enterprise, in which what is wrong is the whole enterprise and neither of the joint actors has contributed a separate wrongful act to the result. Each emerges as the author of his own injury.
In my opinion, it is fallacious to treat this sort of case as if it had any analogy with such a case as Admiralty Comrs v SS Volute. The situation there is one in which two persons, each acting independently of the other, have each contributed separately his own wrongful act to a total situation from which damage results. In such a case it is reasonable enough to measure the importance to the whole of the separate contribution of each and to arrive at a conclusion of contributory negligence and of proportionate liability accordingly. But, where the actors are joint actors, the actual contribution made by each is irrelevant to the result, since each was merely taking his agreed or accepted part in achieving the whole. Indeed, though I can see at any rate an argument for making such joint undertakers share equally between them the whole bill for their separate injuries, I can see no argument at all for making each contribute to the other according to the measure of his actual contribution to the common purpose.
This, I suppose, is much the same line of reasoning as was adopted by the Court of Appeal in the Stapley case and was treated by this House as being inapplicable to the circumstances of that case. It may be that the Court of Appeal had expressed themselves there in rather more transcendental language than I have tried to use, and their way of looking at it seems to have appeared to the members of this House more complicated than perhaps it was. But the question is whether what determined Stapley need determine this case. I do not think that it need. I cannot say that I find the reasoning of the majority of this House in Stapley easy to follow, but the determining point seems to have been their view that once the argument was not accepted that Stapley's death was “not in any way the result of Dale's negligence”, Dale's and his employer's liability must necessarily follow. That conclusion may have been sufficient to dispose of the case before them, but I think that it would be unfortunate if it came to be regarded as authority for any general principle of causation, where joint wrongdoers succeed in inflicting separate injuries on themselves. For the further question has in such cases to be met and answered, what in this context is meant by the “negligence” of one towards the other?
These considerations apart, there are involved in this case questions as to the application of the maxim volenti non fit injuria and as to the principle that in the eyes of the law a man cannot be treated as having disavowed a statutory protection enacted for his benefit in the public interest. On these points, I have had the opportunity of studying in advance the opinions of your lordships, and I wish to associate myself in particular with the opinion to be delivered by my noble and learned friend, Lord Pearce. I do think it of great importance that the law should not in general allow a person to disqualify himself from the protection of a statutory duty imposed for his benefit, where there is any element of public advantage in upholding the duty; but I cannot think that this is a case to which that principle applies.
I would allow the appeal.

LORD HODSON.
My Lords, on 28 June 1960, George was engaged with his brother, James Shatwell, in preparing a round of fifty explosive charges for electrical detonation when one of the charges exploded prematurely with the result that both brothers sustained injuries. George obtained a judgment against the appellants, Imperial Chemical Industries Ltd, the employers of both brothers, on the basis that both were engaged together in a negligent act and one which was performed in breach of a statutory duty imposed by reg 27(4) of the Quarries (Explosives) Regulations, 1959, made under the Mines and Quarries Act, 1954c. Regulation 27(4) reads as follows: c SI 1959 No 2259, made under s 141, s 143 and s 114 of the Mines and Quarries Act, 1954
“No shotfirer shall fire any round of shots connected in series at a quarry by means of electric shotfiring apparatus unless he has tested the circuit for continuity by means of a suitable testing device and has found it to be satisfactory. A shotfirer shall not make any such test unless all persons in the vicinity have withdrawn to a place of safety and he himself has taken proper shelter.”
This rule was flagrantly breached in spite of the care taken by the appellants to see that it was adhered to and no blame attaches to the appellants for the accident. Judgment was given in favour of George, although he was the author of his own wrong in the final act which caused his injury, since on the evidence it was held by the trial judge and by the Court of Appeal that both brothers were engaged together in the operation of testing contrary to the regulations without taking cover as required.
This case has features which correspond somewhat closely with those revealed in the case of Stapley v Gypsum Mines Ltd. There an accident occurred through two miners of equal status working in a gypsum mine, who, finding that the roof was dangerous and might fall and having been told by the foreman to fetch the roof down and having failed to get the roof down, continued to work, with the result that the roof fell and one was killed. On the facts your lordships by a majority held that the fault of the surviving miner, for which his employers were liable, was a contributory cause of the accident which resulted in the death of the other. There was, so far as I can see, no difference in opinion as to any principle involved, the only difference between the majority and the minority was whether the breach of duty by the dead man was the cause of his death, the position being that he resumed work under the defective roof after he and the other man had abandoned their efforts to get the roof down. The minority held that the action of the deceased man alone was the cause of the accident. The majority on the facts of the case treated the actions of both men as part causes of the accident with the consequence that a proportion of the responsibility fell on the employers, as vicariously responsible for the fault of their servant. I will not repeat what was said in that case by my noble and learned friend, Lord Reid, but, following his example, I would apply to this case some observations of Viscount Birkenhead LC in Admiralty Comrs v SS Volute ([1921] All ER Rep at p 201, [1922] 1 AC at pp 144 and 145) and regard James' fault in cooperating with George in testing at the wrong time without taking cover as so much mixed up with the state of things brought about by George that “in the ordinary common sense of the business” it must be regarded as having contributed to the accident. Accordingly so far I agree with the concurrent findings of fact of the Court of Appeal and the trial judge, which means that unless the company has some defence of its own it must accept vicarious responsibility for the participation of James in the accident.
The only surviving question is whether the company can rely on the defence summarised in the maxim volenti non fit injuria. It is true that since the decision of this House in Smith v Baker & Sons this defence has as between employer and employee almost disappeared. The reasons for this are made plain in the judgment of Goddard LJ in the case of Bowater v Rowley Regis Corpn. He said ([1944] 1 All ER at p 467, [1944] 1 KB at p 480) that the maxim must be applied with extreme caution in the case of master and servant, adding:
“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.”
Scott LJ in the same case said ([1944] 1 All ER at p 465, [1944] 1 KB at p 479):
“… 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.”
The maxim is based on agreement (Smith v Baker & Sons) though it is not necessarily, as Goddard LJ pointed out in Bowater's case ([1944] 1 All ER at p 467, [1944] 1 KB at p 481), that there should be found to be a special contract. Economic pressures are usually present which make it unjust to allow an employer where a servant has been injured to say in defence that the servant ran the risk with his eyes open being fully aware of the danger he incurred.
An illustration of this approach to the defence of “volenti” is to be found in a decision of Lynskey J in Williams v Port of Liverpool Stevedoring Co Ltd which followed the case of Stapley v Gypsum Mines Ltd. There the defence of volenti non fit injuria was pleaded where workmen had, in defiance of their employer's instructions, stacked bags in a dangerous manner. One bag fell and one man was injured, but the injured man was not defeated by the plea, although he and the other members of the gang in which he worked had agreed to stack the bags in the manner which caused the accident. The defence was dismissed summarily, and maybe it would have been hard for the plaintiff to hold out against the other members of the gang. The learned judge treated the case as parallel with Stapley v Gypsum Mines Ltd where the defence of volenti non fit injuria was not raised, perhaps because the joint decision of the two men involved did not amount to an agreement.
Here, however, the problem arises in an acute form. The maxim in its application in the law is not limited to master and servant, but, where it applies, it applies equally to a stranger as to anyone else; see per Lord Halsbury LC in Smith v Baker & Sons ([1891–94] All ER Rep at p 75, [1891] AC at p 337).
This case should be looked at first as if it were an action by George Shatwell against James Shatwell before the doctrine of respondeat superior is applied. As between these two brothers there can be no doubt that each agreed with the other to accept the risk of an explosion taking place at a time when neither had taken cover. Their employers, the appellants, had done everything that they could in order to see that orders were complied with in an endeavour to ensure that no testing should be done in the open. They had done so before the regulations of 1959 came into force. On 10 February 1960, they produced a set of rules which were brought to the attention of the men, who knew that they were acting in definance of them. The men knew also that in May 1960, a shotfirer who broke the rules was suspended from work and had his shotfiring certificate revoked. Rates of pay were geared so as to offer no inducement to save time by omitting safety precautions.
It was argued for the respondent that the risk of a detonator being exploded by the galvanometer, the testing instrument used, was so small that no one believed in the possibility of an explosion, so that it could not be said that the brothers Shatwell or either of them appreciated the risk. If they did not appreciate the risk of course the doctrine of “volens” would have no application, but I cannot accept that the risk was not truly appreciated. They were handling explosives in defiance of regulations designed to ensure the safety of the men working in the quarry by insistence on the taking of cover. Moreover, they were qualified shotfirers who knew that they were dealing with a dangerous quantity of explosive when they entered on the foolhardy course which resulted in the accident. If the breach had been a breach of a common law duty hardly anyone would doubt that the doctrine of “volens” would defeat the claim of either brother against the other.
The defence was, however, rejected by the Court of Appeal, as well as by the trial judge, because it has long been treated as settled law that the doctrine of volenti non fit injuria affords no defence to a claim based on breach of statutory duty, see Wheeler v New Merton Board Mills Ltd, a decision of the Court of Appeal following Baddeley v Earl Granville. The basis of the latter decision, accepted without enthusiasm by the Court Appeal in the former case, was, I think, that it was against public policy that as between master and servant the former should escape liability where a servant has accepted a risk by agreement with him in defiance of an obligation enforced by statute. I do not doubt the validity of these decisions, but I do not think that, if public policy is at the root of the problem, there is any reason why the appellants should not avail themselves of the defence. The duty imposed by the regulation was a duty imposed directly on the shotfirers and not directly on the employers. As has already been pointed out, the appellants had done their utmost to see that the regulations were complied with. It is manifestly unjust that each brother who has acted in defiance of orders and of regulations made by the employer should be able to sue the employer and recover damages on the ground that the master is vicariously liable for the wrongful act of the servant committed in the course of his employment. In a situation such as this it seems to me that the pull of public policy is in a direction opposite from that taken in those cases, of which Stapley v Gypsum Mines Ltd was one, where the statutory duty is imposed directly on the employer.
On this ground I would allow the appeal.

LORD PEARCE.
My Lords, the employers, Imperial Chemical Industries Ltd had striven without compromise to prevent shotfirers testing in the open. They had done everything that they could to enforce the safety rules. They had been influential in tightening up the regulations imposed on the shotfirers personally, they had publicly punished and degraded a shotfirer who tested in the open, and they had in consequence faced trouble with the union. They had arranged a system of work and pay designed to discourage the cutting of time and the taking of risks. The two shotfirers George and James knew all this. In spite of it they deliberately broke the statutory regulations which were laid on them personally and together tested in the open. As a result they blew themselves up. They were trained, trusted, certificated men, and it would have been absurd to have someone to watch over them.
Although in this action George alone is the plaintiff, each should be entitled, on the plaintiff's argument, to get damages from the employers on the ground that the other's negligence and breach of statutory duty renders the employers vicariously liable. Whatever precautions the employers had used to prevent the two men testing in the open, they would, if the men had managed to evade those precautions and blown themselves up, still be liable vicariously to the men for their negligence in doing so. That result offends against commonsense.
A comparable absurdity would exist if a workman, who deliberately breaks a regulation or duty which he is properly delegated to perform, could, when injured solely through his own breach, claim damages on the ground that the employers are liable because they are vicariously in breach of duty or regulation in so far as the workman himself broke it. The law has, however, dealt with and declined to accept this absurdity (Smith v Baveystock & Co Ltd and other cases). Professor Fleming in his Law of Torts (2nd Edn) 461, writes:
“This conclusion seems based on fairness and commonsense, rather than on such vulnerable explanations as that the plaintiff was the 'sole cause' of his injury, or was engaged in illegal conduct, or that no man can profit by his own wrong … . Although all of these explanations have been individually advanced, none of them are by themselves sufficient. The first is incompatible with Stapley v. Gypsum Mines, Ltd., the second with National Coal Board v. England, and the last with bothd.”
The present case is really an extension of the same problem. Although the law has refused damages to a man who himself breaks a regulation, so that he injures himself, can the man circumvent that difficulty by persuading a colleague to join him in doing the wrongful act? Can the two workmen then each say—“My colleague was negligent along with me; our one joint explosion blew us both up; therefore his negligence caused my injury and my negligence caused his injury and our employer must pay damages to each of us accordingly”. It would be illogical and also, I think, against public policy if a workman, intending to commit a breach of regulation or duty, could thus ensure his getting some damages for any resultant accident by luring a fellow-worker to join him in the breach. d These last two sentences in the quotation are from footnote (38) to p 461 of Prof Fleming's Law of Torts, which is an Australian text book
Is there some satisfactory answer which would break the chain of the plaintiff's argument, without having unjust repercussions on more meritorious claims?
Apportionment of loss through contributory negligence, which can so often provide a fair result, is of no avail in solving this problem. For if one of the men is held, owing to his greater fault, entitled only to twenty per cent of his loss, then as a general rule the other must be entitled to eighty per cent of his loss; and the total result would still offend against commonsense.
Must it be said that James caused the accident? That was a question of fact. George suggested the course of action and George's hand created the explosion; but James assented to the course of action and took part in the testing. Had the learned trial judge held that James did not cause George's injury, it would not, I think, have been right to over-rule him. He felt himself bound, however, by the reasoning which lead to the decision of fact in Stapley's case. He held that the testing was being done by both men together and he regarded the fact that George's hand fired the explosion as merely an incidental factor.
At first sight it may seem odd that when two men mutually assent to do a dangerous act, it should be held that each has partially caused the injuries of the other. One workman owes a duty to another to take care not to injure him, but I doubt, as between equals, whether that duty is greater than or different from the duty of care not to injure some one other than a fellow servant standing within the area of risk from his negligence. Different considerations of course apply, when negligent instructions are given by some one, such as a foreman, who is entitled to give instructions. When two men agree together to take a risk, a jury might well take the simple view that each caused his own injuries. The difficulty of the question is shown by the conflict of opinion in Stapley's case between the Court of Appeal and the majority of your lordships' House. In that case it could fairly be argued that the accident could not have happened had Dale gone on working on the roof as he should have done. In the present case, however, we have no knowledge of what would have happened if James had refused. The question of causation is one of fact. But in view of the trial judge's decision and the reasoning which led to the decision in Stapley's case, I doubt if it is open to your lordships to take a different view of the facts.
The doctrine of vicarious liability has not grown from any very clear, logical or legal principle, but from social convenience and rough justice. The master having (presumably for his own benefit) employed the servant, and being (presumably) better able to make good any damage which may occasionally result from the arrangement, is answerable to the world at large for all the torts committed by his servant within the scope of it. The doctrine maintains that liability even in respect of acts which the employers had expressly prohibited (see Canadian Pacific Ry Co v Lockhart) and even when the employers are guilty of no fault themselves (Staveley Iron & Chemical Co Ltd v Jones and see per Fullagar J in Darling Island Stevedoring & Lighterage Co Ltd v Long ([1956–57], 97 CLR at p 57)). It follows that they are liable for the torts of one servant against another. In the present case, although George and James were acting wrongfully and in breach of the employers' prohibition, they were clearly acting within the scope of their employment.
Unless the servant is liable the master is not liable for his acts; subject only to this that the master cannot take advantage of an immunity from suit conferred on the servant (Broom v Morgan). On the facts of the present case was James liable to George?
In Stapley's case ([1953] AC at p 665) the defence of volenti non fit injuria was not raised in any of the courts below nor in the respondent's case to your lordships' House (([1953] AC at p 665)); nor was it discussed in the opinions. It has, however, been argued in the present case. One naturally approaches that defence with suspicion. For in the sphere of master and servant its role has been inglorious up to 1891, and, since that date, insignificant. In Smith v Baker & Sons, it was laid down that the defence was not constituted by knowledge of the danger and acquiescence in it, but by an agreement to run the risk and to waive any rights to recompense for any injury in which that risk might result. The reason for the rarity of the defence thereafter was that it usually overlapped contributory negligence (and common employment) and produced the same result. In cases where there was real assumption of risk by the servant he was on his part acting with negligence; and that negligence was a more practical and satisfactory issue than the implication of assumption of risk. So long as they were both total defences there was the same bias against them both. Since contributory negligence has ceased to be a total defence and it has become possible to produce a fair result by apportionment, the reluctance to find the total defence of volenti non fit injuria became more marked. Moreover, the plea is in fact very rarely applicable to master and servant cases. It does not apply to consent obtained by any pressures whether social, economic, or simply habit. The master has an important duty of care for his servant; in general he has more skill in organisation, a wider foresight and more opportunity for innovation. So the assent of the servant to the master's failure very seldom in fact amounts to a real case of volenti non fit injuria. Nevertheless, the plea is a valid plea in the right setting. Is the present case one of the rare occasions in the sphere of master and servant when the plea may serve a fair and useful purpose? One must consider the plea in relation both to the cause of action in breach of statutory duty and also to that in common law negligence since the learned judge found that each had been proved.
Where Parliament has laid down that certain precautions shall be taken by the master to protect his workmen, a master is not and should not be entitled to neglect those precautions and then rely on an express or implied agreement between himself and the workman that the latter, if injured as a result of the neglect, will bear the loss alone. In Wheeler v New Merton Board Mills Ltd the Court of Appeal laid down that the defence of volenti non fit injuria was no answer to a claim by a workman against his employer for injury caused through a breach by the employer of a duty imposed on him by statute. They so held (with some reluctance which I do not share) principally because the case of Baddeley v Earl Granville had stood for some fifty years. But in those cases the defendants were themselves in breach of statutory duty (as were the defendants in Stapley's case). In the present case the defendants themselves were in breach of no statutory duty. The questions of public policy and fairness which reinforced those decisions do not help the plaintiff in the present case but rather tell the other way. In my opinion, the rule which the courts have rightly created disallowing the defence where the employer is in breach of statutory duty should not apply to a case such as the present. The defence should be available where the employer was not himself in breach of statutory duty and was not vicariously in breach of any statutory duty through the neglect of some person who was of superior rank to the plaintiff and whose commands the plaintiff was bound to obey (or who had some special and different duty of care, see, eg, National Coal Board v England, where a miner was injured by the shotfirer firing the charge) and where the plaintiff himself assented to and took part in the breaking of the statutory duty in question. If one does not allow some such exception one is plainly shutting out a defence which, when applied in the right circumstances, is fair and sensible.
So far as concerns common law negligence, the defence of volenti non fit injuria is clearly applicable if there was a genuine full agreement, free from any kind of pressure, to assume the risk of loss. In Williams v Port of Liverpool Stevedoring Co Ltd ([1956] 2 All ER at p 72), Lynskey J rejected the defence where one stevedore was injured by the deliberate negligence of the whole gang (to which the plaintiff gave “tacit consent”) in adopting a dangerous system of unloading. There was an overall duty on the master to provide a safe system of work, and it is difficult for one man to stand out against his gang. In such circumstances one may not have that deliberate free assumption of risk which is essential to the plea and which makes it as as a rule unsuitable in master and servant cases owing to the possible existence of indefinable social and economic pressures. If the plaintiff had been shown to be a moving spirit in the decision to unload in the wrong manner it would have been different; but these matters are questions of fact and degree.
In the present case it seems clear that as between George and James there was a voluntary assumption of risk. George was clearly acting without any constraint or persuasion; he was in fact inaugurating the enterprise. On the facts it was an implied term (to the benefit of which the employers are vicariously entitled) that George would not sue James for any injury that he might suffer, if an accident occurred. Had an officious bystander raised the possibility, can one doubt that George would have ridiculed it?
It was argued that there was not in George's mind a sufficient appreciation of the risk to support the plea. The trial judge was clearly of opinion that there was. I do not see how he could have come to any other conclusion in view of the employer's propaganda on this subject to all their shotfirers. The men all knew of the risk. It was a very remote risk; but this was the unlikely occasion on which a risk became an accident.
The same result, so far as the breach of statutory duty is concerned, could be reached by accepting the reasoning of the High Court of Australia in Darling Island Stevedoring & Lighterage Co Ltd v Long where it was held that breach of a regulation laid on “the person in charge” as defined by the regulations, did not create a vicarious liability on the employer of such person. It is not necessary to decide the point, since the defence of volenti non fit injuria in the present case absolves the defendants. It was discussed but not decided in

Harrison v National Coal Board and in National Coal Board v England (see per Lord Reid ([1954] 1 All ER at p 555, [1954] AC at p 425)). I prefer to reserve the matter for future consideration. I would also reserve the point which Lord Porter in Stapley v Gypsum Mines Ltd ([1953] 2 All ER at p 482, [1953] AC at p 675) described as “elusive and difficult”, adding: “It may be that in some future case your lordships will be confronted with the difficulty of finding a solution.”
I would allow the appeal.

LORD DONOVAN.
My Lords, the respondent in this appeal was employed by the appellants in 1960 as an experienced shotfirer in their quarry at Tunstead. On 28 June in that year he was engaged as one of a team of three shotfirers in placing explosives for the purpose of blasting operations in the quarry. After the explosives had been placed in position and the detonators affixed, the drill was to make what is called a “continuity test”. There were some fifty charges in position all connected by electric wiring. The firing would be done by sending an electric current through this wiring. To verify that there was no break in the circuit a galvanometer was used. The two ends of the electric wiring would be brought into contact with the terminals on the galvanometer with the result that an electric impulse would be imparted, insufficient to explode the charges but sufficient to demonstrate by the oscillation of the galvanometer needle that the circuit was unbroken.
Regulation 27(4) of the Quarries (Explosives) Regulations, 1959 (SI 1959 No 2259) requires all such testing to be done from proper shelter. The words are these:
“No shotfirer shall fire any round of shots connected in series at a quarry by means of electric shot firing apparatus unless he has tested the circuit for continuity by means of a suitable testing device and has found it to be satisfactory. A shotfirer shall not make any such test unless all persons in the vicinity have withdrawn to a place of safety and he himself has taken proper shelter.”
In order to enable the continuity test to be carried out in accordance with this regulation one of the team of shotfirers, named Beswick, went off to get a longer cable so that the test could be carried out from proper shelter. He would have been away about ten minutes. The other two shotfirers remained at the scene. They were the respondent and his brother, also an experienced shotfirer. Hereafter I will refer to the respondent as “George” and his brother as “James”. When Beswick had departed George said to James “Must we test them?” meaning in the local idiom “Shall we test them?” James replied “Yes”. The two men then proceeded to carry out a continuity test in the open without retiring to shelter. The first test, which was a single test of the whole circuit, showed that there was a fault somewhere in it. George and James then proceeded to test each detonator separately. Again they did not retire to shelter, but brought two wires leading from the first detonator to the galvanometer and with them George touched the terminals of the galvanometer. The charge exploded and George and James were injured, George seriously. Both George and James in doing what they did were clearly and admittedly in breach of reg 27(4). In due course, George brought the present action against the appellants, contending that he had been injured as a result of James's negligence and breach of statutory duty and for that injury the appellants as James's employers were vicariously responsible.
Elwes J gave judgment for the respondent, but reduced his damages by one-half to take account of his own contributory negligence. The Court of Appeal upheld his judgment. Both courts expressed the opinion that the result was unjust, but held themselves constrained to find in favour of the respondent by the decision of this House in Stapley v Gypsum Mines Ltd.
The decision in that case was essentially a decision on causation. Dale and Stapley were both guilty of a breach of statutory duty and of negligence by reason of their joint decision to carry on working without first bringing down the dangerous roof. The consequences fell wholly on Stapley, who was killed while working under the roof while Dale, in pursuance of his duties, had for the moment to be elsewhere. The controversy in these circumstances was whether Dale's breach of statutory duty and his negligence could be treated as a cause of Stapley's death, although Stapley himself was guilty of the like breach and the like negligence. This House held, by a majority, that they could.
Causation must, primarily be a question of fact; but nevertheless a question of law was in my opinion also decided by the case, namely, whether a workman who is injured in consequence of a breach of statutory duty and of negligence of which both he and a fellow workman are together guilty is precluded from contending that his fellow workman's breach and negligence was a cause of the ensuing injury. It was held that he was not so precluded.
In the present case, therefore, the contention was open to George, but that by no means concludes the matter. It could still be defeated by the appellants if they were able to show—
(a) that there was indeed no breach of statutory duty or negligence at all on the part of James: or
(b) that even if there were, George had agreed to run the risk of any consequent injury, and could not therefore found on James's breach of negligence as he must be able to do if the appellants were to be vicariously liable for it. In other words volenti non fit injuria.
Before your lordships the argument was confined to the alleged breach of statutory duty by James, and it was argued that none had occurred. James did not, it was said, carry out any continuity test in the open. That was done solely by George, for the test consists of bringing the electric leads into contact with the terminals on the galvanometer, and that was done by George alone. My lords, I am satisfied that this is too narrow a view. The test was a joint operation on the part both of James and George, and it matters not in these circumstances whose hand it was that did the concluding act. Moreover, it would seem from the judgment of Elwes J that a breach of reg 27(4) on the part of James was admitted at the trial. I think that such an admission was rightly made. It follows, on the facts of this case, and bearing in mind the decision in Stapley v Gypsum Mines Ltd that James's breach must be treated as one cause of George's injury.
This brings me to the appellants' plea of volenti non fit injuria. Inasmuch as the courts below have held themselves bound by the decision in Stapley v Gypsum Mines Ltd it should be recalled at the outset that no such plea was advanced in that case. “… no question of volenti non fit injuria arises here, since the joint decision of the two men did not amount to an agreement.” See the statement of the argument ([1953] AC at p 665). Rightly or wrongly both sides seem to have proceeded on that view, because nothing more was said on the subject. But it has also to be remembered that the employers in that case had themselves been found, in the Court of Appeal, to have been in breach of their statutory duty: and although your lordships did not find it necessary to determine whether they were or were not, this feature of the case may well have discouraged Gypsum Mines Ltd from raising the defence of volenti etc having regard to the decisions in Baddeley v Earl Granville and Wheeler v New Merton Board Mills Ltd. These were to the effect that the defence is not open to an employer who has been guilty of a breach of statutory duty causing the relevant injury.

In the present case no question of such a breach by the appellant employer arises. They did nothing wrong. The duty to test from shelter is laid on the shotfirers themselves. George himself was well aware of his duty in this respect, and must have known of the reason for the rule, namely, the risk of premature explosion. When he asked James whether they should proceed to test, notwithstanding that they were both in the open, and obtained his agreement to that course, they were voluntarily accepting this known risk with their eyes open. Against this view of the matter it is argued for the respondent that, though he knew of the risk, he knew it also to be a remote one, and never dreamed that it would mature; and that to be affected by the plea of volenti etc he must be aware of the exact extent of the danger. I cannot accept this argument. George did know the extent of the risk, namely, that it was very remote. What he did not know, of course, was whether the risk would mature. But whoever does? The argument really is this: “I didn't think it would happen to me.” This is not an answer, once the risk is known, and understood, and accepted. Next it is argued that for the defence based on the plea to succeed, it must be shown that there was no kind of pressure on George to accept the risk, but that it was his free and voluntary act. In the present case that was not so, it is said, because of the pressure represented by the willingness of James to help to carry out the test in the open; but what James did was to accept George's invitation so to test in the open and thereafter to co-operate. I cannot regard this as affecting George's complete freedom of choice in the matter. He remained perfectly free to change his mind.
The substantial question which this defence raises is whether two workmen each being under a particular statutory duty can agree with each other to waive the consequences to themselves resulting from their joint breach of it, so that if injury results to them, neither can effectively claim damages against the other.
In Baddeley v Earl Granville it was held that an employer could not plead that a workman had agreed to a breach of statutory duty on his part, and that therefore his widow was not debarred from claiming damages for her husband's consequent death. This decision was followed, it would seem not enthusiastically, in Wheeler v New Merton Board Mills Ltd. I think that these decisions were right, on the ground that it would be contrary to public policy to allow an employer to contract out of duties which Parliament had specifically imposed on him in the interest of the safety of his workmen. The two parties to such a contract would normally bargain from very unequal positions of strength. The position is different as between two employees themselves. If they injured in consequence of their own breach of statutory duty, there would perhaps be no harm in letting them sue each other despite their prior agreement to run the risk. But the matter does not stop there. If the decision of the courts below is right, the workmen concerned can proceed to visit the consequence of their own offences on an innocent third party. Thus in the present case George has secured judgment for £1,500 against the appellants, who admittedly did nothing wrong themselves, but on the contrary fulfilled their own statutory duties; and your lordships were informed that a corresponding claim by James is in the offing. Thus the position is reached that, if a workman is minded to commit an offence against a statutory regulation, he should avoid doing it alone for then he will recover nothing if he is injured in consequence. To make sure that he recovers damages (albeit reduced because of his own conduct) he must procure some fellow workman to commit the offence as well. Considerations of public policy then work the other way: for if this situation were to obtain not only would the efficacy of the regulations be sensibly diminished, but the wholly unjust result would ensue that an innocent third party was made to compensate the injured offenders.
When George invited James to join him in testing the electrical circuit without taking shelter George knew the risk he was running and accepted it voluntarily.
He did not, of course, in express language, waive such rights as he might have against James if the risk matured and he was injured; but in my opinion that must be taken to be the tacit effect of the agreement between the two of them to test the circuit in the open. The situation lacks nothing of the elements necessary to support the plea of volenti non fit injuria. Each knew the risk he ran: each accepted it quite voluntarily. Had George sued James for damages in respect of his injury, James could have replied successfully that in these circumstances there was no injuria on his part vis-à-vis George. If that be so, then there is nothing for which the appellants are vicariously liable towards George. For these reasons I think the courts below were not constrained to hold the appellants liable in damages and I would allow the appeal.
Appeal allowed.