Bowater v Rowley Regis Corp
Court of Appeal
Citations: [1944] KB 476.
Facts
The claimant was employed by the defendant corporation to collect road sweepings. His foreman ordered him to take out a particular horse, even though both of them knew the horse had bolted on two previous occasions. The claimant protested, but the foreman said it was an order. The horse later bolted, throwing the claimant from his cart and injuring him.
The claimant sued his employer in negligence for failing to provide him with a safe and suitable horse. The employer responded that the defence of volenti non fit injuria applied because the claimant knew the horse was dangerous.
Issue(s)
- Did the defence of volenti non fit injuria apply where an employee is ordered to take action which he knows is dangerous?
Decision
The Court of Appeal held that the employer was negligent and that the defence of volenti non fit injuria did not apply.
This Case is Authority For…
The defence of volenti non fit injuria will not normally apply to actions taken by an employee which constitute his normal work duty, particularly where he is ordered to take the risk. This is because the employee has not truly consented to take on the risk.
Other
It is not necessary to show that the employee contracted to take on the risk to prove volenti non fit injuria, but the defence might apply if the employee agreed to accept more money to take on the risk.
Goddard LJ suggested that the defence might apply where the employee’s normal tasks are inherently dangerous, but it is doubtful whether this dicta would be followed today. It is more likely that the court would instead hold that a failure to prevent unavoidable dangers involved in a particular industry is not a breach of duty.
