Imperial Chemical Industries Ltd v Shatwell [1964] UKHL 2 (06 July 1964)

An experienced shot-firer, injured after deliberately ignoring safety rules with his brother, sued his employer for the brother's negligence. The House of Lords held the defence of volenti non fit injuria (consent) applied, absolving the employer from vicarious liability.

Facts

The respondent, George Shatwell, and his brother, James, were both qualified shot-firers employed by the appellants, Imperial Chemical Industries Ltd (ICI). They were tasked with testing detonators at a quarry. Statutory regulations, which were known to both brothers and enforced by ICI, required such tests to be conducted from a protective shelter. On the day of the incident, they found their testing leads were not long enough to reach the shelter. Instead of obtaining a longer wire as they were required to, they mutually decided to conduct the test in the open, in direct and conscious violation of both the statutory regulations and their employer’s standing instructions. During this unauthorised procedure, an explosion occurred, injuring both men. George Shatwell sued ICI, seeking damages on the basis that the company was vicariously liable for the negligence of his brother, James.

Issues

The central legal issue for the House of Lords was whether an employer, who was not itself in breach of any statutory duty and had taken all reasonable care, could be held vicariously liable for an injury sustained by an employee which was caused by the negligence of a fellow employee, when both employees had deliberately conspired to disobey an express safety prohibition. Specifically, the court had to determine if the defence of volenti non fit injuria (that the claimant voluntarily assumed the risk of injury) could be successfully raised by the employer in such circumstances, effectively negating the vicarious liability claim.

Judgment

The House of Lords unanimously allowed the appeal, holding that ICI was not liable. The court found that the defence of volenti non fit injuria was applicable.

Viscount Radcliffe

Viscount Radcliffe distinguished the case from situations where an employer is in breach of a statutory duty, where the defence of volenti is generally excluded. Here, ICI was blameless; the fault lay entirely with the Shatwell brothers’ joint decision to disregard safety rules.

In my opinion, a man who is under a statutory duty to another person…cannot be heard to say that the other person has `consented` to his breach of it… But in the present case the employers were not in breach of statutory duty at all. Their liability, if any, is the purely vicarious liability of a master for the tort of his servant in the course of his employment.

He concluded that George Shatwell had fully consented to the specific act which caused his injury, and this consent was a valid defence for James Shatwell, and therefore also for their employer, ICI, whose liability was purely vicarious.

Lord Reid

Lord Reid addressed the question of whether a master is liable for a servant’s negligence when that servant could themselves plead volenti non fit injuria against the claimant.

So the question is whether a master is vicariously liable for a servant who has been negligent but who, if he were sued by the injured man, could plead volenti non fit injuria. In my opinion, he is not… If the master is not liable, it is not because he can take advantage of a defence which is personal to his servant: it is because the plaintiff consented to the act or omission which caused him injury, and in so far as that act or omission can be attributed to the master, he has consented to it.

He stressed that the brothers were not merely negligent but had engaged in a concerted act of disobedience, which made the defence of consent particularly strong. He reasoned that it would be unjust to hold the non-negligent employer liable where the injury was solely the result of the employees’ joint and flagrant misconduct.

Lord Pearce

Lord Pearce agreed, emphasising the justice of the situation. He stated that the respondent was not a passive victim but an active participant in the dangerous act.

If a person of full age and understanding and not under any constraint or undue influence or persuasion, deliberately and without any justification from the circumstances, chooses to disobey a safety order in a most flagrant way, it is he, and no one else, who is responsible for the consequences.

He argued that extending vicarious liability to cover such a situation would be an ‘unjust and unreasonable’ extension of the principle, especially when the employer had done everything possible to ensure safety.

Implications

The decision in ICI v Shatwell is a landmark authority on the scope of the defence of volenti non fit injuria within the context of employer’s liability. It carves out a rare exception to the general judicial reluctance to apply the defence in employment cases. The case establishes that where an injury results from employees jointly and deliberately acting in contravention of express safety instructions, and the employer is not personally at fault, the employer may successfully plead volenti against a claim based on vicarious liability for one of the transgressing employees. It critically distinguishes between an employer’s primary breach of statutory duty (where the defence is barred) and a situation of purely vicarious liability for an employee’s tort where the defence is available to the primary tortfeasor.

Verdict: Appeal allowed. The employer (ICI) was found not to be liable for the respondent’s injuries.

Source: Imperial Chemical Industries Ltd v Shatwell [1964] UKHL 2 (06 July 1964)