Thomas v Quartermaine: CA 1887

Employer’s duty to his workman injured at work

The court considered an employer’s duty to his workman injured at work.
Held: Bowen LJ said: ‘It is no doubt true that the knowledge on the part of the injured person which will prevent him from alleging negligence against the occupier, must be a knowledge under such circumstances as lead necessarily to the conclusion that the whole risk was voluntarily incurred. The maxim, be it observed, is not ‘Scienti non fit injuria,’ but ‘Volenti.’ There may be a perception of the existence of the danger without appreciation of the risk; as, where the workman is of imperfect intelligence.’ and ‘The defendant in such circumstances does not discharge his legal obligation by merely affecting the plaintiff with knowledge of a danger which but for a breach of duty on his own part would not exist at all. But, where the danger is one incident to a perfectly lawful use of his own premises, neither contrary to statute nor common law, where the danger is visible and the risk appreciated, and where the injured person, knowing and appreciating both risk and danger, voluntarily encounters them, there is, in the absence of further acts of omission or commission, no evidence of negligence on the part of the occupier at all. Knowledge is not a conclusive defence in itself. But, when it is a knowledge under circumstances that leave no inference open but one, viz. that the risk has been voluntarily encountered, the defence seems to me complete.’ The words at the end of s. 1 do no more than ‘remove such fetters on a workman’s right to sue as had been previously held to arise out of the relation of master and workman.’ S2(3) does not extend the master’s liability beyond that imposed by s. 1, and s. 2, sub-s. 1. In each case specified in s. 1, the maxim Volenti non fit injuria is applicable, and, if a workman, knowing and appreciating the danger and the risk, elects voluntarily to encounter them, he can no more maintain an action founded upon the statute than he can in cases to which the statute has no application.

Bowen LJ
(1887) 18 QBD 685
Employers’ Liability Act 1880 10
England and Wales
Cited by:
DistinguishedYarmouth v France CA 11-Aug-1887
The plaintiff was employed by the defendant to drive carts. He objected that the horse had a vicious nature, but was obliged to drive it in any event. The horse kicked him.
Held: For the purposes of the 1880 Act, the plaintiff was an employee, . .

Lists of cited by and citing cases may be incomplete.


Leading Case

Updated: 01 November 2021; Ref: scu.235910