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

Two brothers, both qualified shotfirers, deliberately tested explosives without taking proper shelter in breach of statutory regulations and employer's orders. When an explosion injured them, one sued the employer for the other's negligence. The House of Lords held that volenti non fit injuria provided a complete defence where the employer was blameless.

Facts

George and James Shatwell were experienced shotfirers employed by Imperial Chemical Industries Ltd at a quarry. On 28th June 1960, they were preparing explosives for detonation. Regulation 27(4) of the Quarries (Explosives) Regulations 1959 required that continuity testing be conducted only from proper shelter. The employers had strictly enforced this rule, having previously suspended a shotfirer who breached it.

While waiting for a colleague to fetch longer cables to enable testing from shelter, George asked James whether they should test in the open. James agreed. George conducted the test without taking cover, causing a premature explosion that injured both brothers. George sued the employers, claiming they were vicariously liable for James’s negligence and breach of statutory duty.

Issues

Causation

Whether James’s conduct was a cause of George’s injury, given that both brothers jointly participated in the breach.

Volenti Non Fit Injuria

Whether the defence of volenti non fit injuria was available to the employers where the statutory duty was imposed on the employees personally, not the employer, and the employer was entirely blameless.

Judgment

The House of Lords unanimously allowed the appeal. While accepting that James’s conduct contributed to the accident (following Stapley v Gypsum Mines Ltd), the defence of volenti non fit injuria succeeded.

Lord Reid explained that George had full knowledge of the risk, having been warned by his employers and being aware of the statutory regulations. He stated that where two fellow servants combine to deliberately disobey an order, knowing the risk involved, and one is injured, the defence of volenti is available to an employer who is not personally at fault.

Lord Pearce emphasised that the employers had done everything possible to prevent breach of the regulations and were in no way to blame. He held that the rule disallowing the volenti defence where an employer breaches statutory duty should not apply where the employer was not in breach and the plaintiff himself assented to and participated in breaking the statutory duty.

Lord Donovan noted that George voluntarily accepted a known risk with his eyes open when he invited James to test without shelter. The tacit effect of their agreement was to waive any rights against each other if injury resulted.

Implications

This case established important principles regarding the defence of volenti non fit injuria in employment law:

• The defence remains available where an employer is entirely blameless and the statutory duty is imposed on employees personally, not on the employer
• Where two employees jointly and deliberately breach safety regulations with full knowledge of the risks, neither can claim damages against the employer based on the other’s negligence
• The rule that volenti cannot be pleaded against breach of statutory duty applies only where the employer himself is in breach, not where he is merely vicariously liable for employees’ breaches
• Public policy considerations support the defence in such circumstances, as otherwise workmen could ensure recovery by procuring fellow workers to join them in committing offences

Verdict: Appeal allowed. The defence of volenti non fit injuria succeeded, and the employer was not liable for damages to the respondent.

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