What does Smith v Charles Baker and Sons decide?

Awareness of risk at work is not the same as consenting to bear the loss. Volenti requires real agreement that the risk is the worker’s, not the employer’s.

When does volenti apply in workplace cases?

Only when the worker truly agreed to accept the risk and its consequences; mere continuation in the job is not enough.

Why did the defense fail here?

The plaintiff kept working near a crane but never agreed that injuries from that activity would be at his own risk.

What duty remains on the employer?

Employers must take reasonable care and give warnings; they cannot shift loss by pointing to the worker’s knowledge alone.

How should I use this in exams?

Argue consent vs mere knowledge. Ask: did the worker actually agree to take the risk, or just face it because of the job?

Smith v. Charles Baker and Sons (1891) AC 325 (HL)

Volenti non fit injuria at the workplace: knowledge ≠ consent. The real question is—who agreed to bear the risk if injury happens?

Torts House of Lords 1891 AC 325 (HL) ~6 min read

Author

: Gulzar Hashmi

Location

: India

Primary Keywords

: volenti non fit injuria, consent, assumption of risk, workplace safety

Secondary Keywords

: employer’s duty, warnings, negligence, crane operations, knowledge vs agreement

Publish Date

: 31 Oct 2025

Slug

: smith-v-charles-baker-and-sons-1891-ac-325-hl

Quick Summary

Smith v. Charles Baker and Sons says: simply knowing a danger at work does not mean you agreed to take that risk. To use volenti non fit injuria, the employer must show a real agreement that the loss would fall on the worker.

Issues

Can volenti non fit injuria defeat a claim where the worker knew of risks from a different department’s activity but kept working?

Rules

The key question is not “Did he rashly face danger?” but “Did he agree that if injury happens, the risk is his and not the employer’s?” Mere knowledge or endurance is not consent.

Facts (Timeline)

Timeline of events near the crane—Smith v. Charles Baker and Sons

Work Setup: Plaintiff drilled rock near a crane run by other employees of the same employer.

Risk Pattern: Stones were lifted and sometimes carried over his head without warning.

Awareness: Plaintiff knew the dangers of working close to the crane.

Accident: A stone fell from the crane and struck him on the head, causing serious injury.

Claim & Defence: He sued for negligence; employer pleaded volenti non fit injuria.

Arguments

Appellant / Plaintiff

I knew the risk but never agreed to take it as my own.
Employer failed to warn or arrange safe handling—this is negligence.

Respondent / Defendant

He understood the danger and continued; therefore, volenti should apply.
His awareness equals consent to the risk and its consequences.

Judgment (Held)

Judgment illustration—volenti fails without agreement

Held for the plaintiff. Continuing to work with knowledge of risk did not prove consent to bear the loss. The defence of volenti non fit injuria failed.

Reason: No agreement that the risk would be the worker’s rather than the employer’s.
Duty: Employer still had to take reasonable care and give warnings.

Ratio Decidendi

Volenti requires real consent to take the risk and its consequences. Mere knowledge or endurance of workplace danger does not shift loss to the worker.

Why It Matters

Protects workers from unfair “assumption of risk” arguments based only on awareness.
Clarifies the consent required for volenti in employer–employee settings.
Guides pleadings: argue lack of agreement + employer’s duty to warn and manage hazards.

Key Takeaways

Knowledge ≠ Consent: Volenti needs agreement, not just awareness.
Employer’s duty of care remains despite worker’s knowledge.
Warnings and safe systems are essential to avoid negligence.

Mnemonic + 3-Step Hook

Mnemonic: “Know ≠ Yes”

Step 1: Did the worker know the risk? (Yes.)
Step 2: Did the worker agree to bear the loss? (Usually no.)
Step 3: If no agreement, volenti fails; check employer’s negligence.

IRAC Outline

Issue: Can an employer avoid liability by saying the worker knew of a nearby crane risk and kept working?

Rule: Volenti applies only with true consent that the risk and loss are the worker’s.

Application: The worker knew the danger but never agreed to bear the consequences; warnings were lacking; activity was by another department.

Conclusion: Volenti defence fails; employer remains responsible if negligent.

Glossary

Volenti Non Fit Injuria: “To the willing, no injury”: a defence where the claimant consented to the risk and its consequences.
Assumption of Risk: Taking on a known danger; Smith shows this needs agreement, not just knowledge.
Employer’s Duty: Obligation to provide warnings, training, and a reasonably safe system of work.