Court case[1891] AC 325

Smith was employed by the defendants, railway contractors, to drill holes in a rock cutting. Near where he worked a steam crane, operated by other employees, regularly lifted heavy stones and swung them over his head without any warning being given at the moment of the swing. Smith knew of the practice and of the danger and had continued at his work. While he was drilling, a stone fell from the crane and injured him. He sued the employers for negligence (under the Employers' Liability Act 1880) in failing to give warning. The employers pleaded that he had voluntarily undertaken the risk.

The House of Lords, Lord Bramwell dissenting, held that the defence of volenti non fit injuria failed. The question was not whether the plaintiff knew of the risk but whether he had agreed, expressly or impliedly, to run it. A workman who merely continues at his work with knowledge of a danger created or continued by his employer's negligence does not, by that fact alone, consent to it; his continuance may be due to the pressure of his employment. The jury was entitled to find that he had not voluntarily undertaken the risk, and the verdict for the plaintiff was restored. Lord Herschell observed that where a person undertakes work that is intrinsically dangerous with knowledge of the danger the maxim may apply, but it does not apply merely because a workman continues in employment knowing that his employer has failed to take a precaution that he ought to take.