wherein the French system is much more rational. First, in our almost morbid horror of inducing the prisoner to say anything 'which may be used against him at his trial,' whereby there is small doubt that the guilty often escape without any adequate corresponding advantage to the innocent. Secondly, in the extremely complicated and often unreasonable nature of our highly technical rules of evidence, whereby information which is really relevant is frequently rendered inadmissible in evidence. However, there will not probably be among English readers two opinions as to which system is on the whole best calculated to ensure at once the discovery of the truth in any given enquiry and in general a humane and enlightened administration of justice. MALCOLM McILWRAITH. SMITH v. BAKER AND VOLENTI NON FIT INJURIA. THER HE short point for decision by the House of Lords in the recent case of Smith v. Baker and Sons 1 was, whether, when the plaintiff had admitted his knowledge of a risk which ultimately brought injury to him, the judge ought to have nonsuited, and not to have allowed the case to go to the jury. It is proposed to shew that the decision of the House of Lords, holding that the case was rightly left to the jury, was inevitable in view of established principles of law and the way in which this particular case was presented to the House, while at the same time much of the reasoning by which the result was attained is extremely unsatisfactory. At the outset, however, of some remarks, which may not strictly be confined to mere thankfulness and laudation, it is possibly not too venturous to anticipate that, notwithstanding the substantial harmony of the result with the course of preceding decisions, the case will not give complete satisfaction; either to those who look at it otherwise than as the means of securing payment, to a probably very deserving man, of a sum in satisfaction of very severe hurts received whilst doing his master's business; or to those whose ideal of a decision in the House of Lords is one of the closely reasoned demonstrations that make the L. R. H. L. series such stimulating reading for a lawyer. In Smith v. Baker, the workman's engagement was at work in full view of the risk from which he months after received his injury. Two months previous to the accident he was put to the work itself to which the risk was attached, and worked on at it without complaint till he was injured. It may be mentioned that Lord Watson notes that 'one at least of his fellow workmen had previously complained to the foreman of the danger;' though there is no suggestion that it was with the plaintiff's authorization or concurrence. The comment of the ordinary observer without prejudices in the matter of the liability of master to servant on the facts proved in Smith v. Baker would probably be that, if ever there could be a case of a man working with his eyes open and taking the risks of his work, this particular case of Smith v. Baker is that case. The ways of juries, however, with Railway Companies, newspapers, and employers, presumptively wealthy, are uniform; and as a learned judge, whose decisions have helped as much as any 1 (1891) A. C. 325. 6 to consolidate the prerogative of juries to mete out compensation on philanthropic principles very lately observed, In a case under The Employers' Liability Act there is no chance of an employer getting a verdict.' Again, to a student of law who has studied the House of Lords' Reports of the last twenty years the perusal of the various opinions delivered in this case by the Law Lords may not unlikely suggest the reflection, what an immense and irreparable loss the House suffered when Lord Cairns ceased to attend and mould its judicial deliberations. Compare for example Lord Cairns's leading opinion in Wilson v. Merry1—an exposition which has been submitted to an altogether exceptional mass of adverse criticism, and which is by no means an adequate specimen of his method and powers, but which has certain analogies with the present case-with any of the opinions delivered in Smith v. Baker. There is, first, the statement of facts; then a precise enunciation of the general principle of law applicable in every relevant aspect; lastly, the points in which the case before him failed to meet the requirements of the principle are distinctly and unambiguously pointed out; and pervading the whole there is a rigid elimination of any expression of opinion on matter not necessary for the decision, while every sentence converges on the point to be decided without ambiguity and with the precision of a scientific formulary. On the other hand, in Smith v. Baker-surely a case admitting one way or the other of an enunciation of broad principle-in the leading opinions there is apparently not even an effort to state any. In the circumstances of this case,' says Lord Watson 2, 'the question whether he had accepted the risk is one of fact; there is no arbitrary rule of law which decides it.' 6 There is again a wealth of unnecessary dicta; for example, the Lord Chancellor's theory about 'consent to the particular thing done,' which is wholly unnecessary for the decision. With this compare Lord Cairns's 3: Your Lordships will probably not express any opinion as to whether in some other stage of this action such an argument may, or may not, be maintained; and I only notice it at present in order to shew that it has not been overlooked.' As a final Court of Appeal the function of the House of Lords is to set at rest disputed points, not to stir up or suggest points for disputation. Lord Herschell's suggestions too about Thomas v. Quartermaine appear to be altogether apart from any point raised in the case (or, if they are pertinent to any, the rest of the learned lords must have been at sea in their views of the case), and instead 1 L. R. 1 Sc. Ap. 32. 2 (1891) A. C. at 357. 3 Wilson v. Merry, L. R. 1 Sc. Ap. 326. of preventing litigation, will be regarded as giving at least Lord Herschell's sanction to embarking on it. Moreover there runs through all the opinions, excepting Lord Bramwell's and Lord Morris's, a generality of expression applicable possibly to any case, or may be to no case. For example, take this passage: 'I must say for my part that in any case in which it was alleged that such a special contract as that suggested' (i. e. an agreement 'to undertake the risk arising from the alleged breach of duty,' and 'conclusively established') 'had been entered into I should require to have it clearly shewn that the employed had brought home to his mind the nature of the risk he was undertaking and that the accident to him arose from a danger both foreseen and appreciated.' That is, a special contract, possibly in writing, being conclusively established,' the rule of evidence is similar to that sometimes regarded as special to the case of money-lenders dealing with expectant heirs. To what extent then does this eversion of the ordinary onus of proof go? Is it limited to miners and factory hands, or are seamen included? Has it any and what limitations? A proposition of enormous extent is advanced and without the faintest attempt to define its application. In Lord Cairns's days the opinions delivered in the House of Lords moved on an altogether other plane. Before proceeding to the consideration of the signification of the maxim Volenti non fit injuria, it may be well to point out that the cases cited of Sword v. Cameron 2 and Bartonshill Coal Company v. Marguire 3 were by no means conclusive of the defendant's liability. Those cases, in the view of the Lord Chancellor *, 'established conclusively the point . . . that a negligent system or a negligent mode of using perfectly sound machinery may make the employer liable.' But it was quite consistent with the defendants' case to admit as much; what they said was in effect-even assuming we have not done all we ought, you have made a contract with us to release us from liability in that particular. The point for the defendants might be put 'admitting default of duty on our part you have agreed not to take advantage of it.' In that case Sword v. Cameron would merely establish a stage in the defendants' liability and not conclude it. To conclude it would necessarily be to decide whether in any circumstances the free will of the plaintiff could in law be held to assent to such an undertaking; and secondly, whether the facts proved in the case before the court did shew such assent. But the main interest in the decision is the light that can be 1 Per Lord Herschell at p. 363. 3 3 Macq. 266. 2 4 I D. 493. extracted from it as to the true legal bearings of the maxim Volenti non fit injuria. There is no peculiarity in the nature of the maxim Volenti non fit injuria which generically distinguishes it from other legal maxims. Legal maxims are the expression of legal presumptions in the circumstances to which they are applicable. As a rule their application may be rebutted; but sometimes, though rarely, they are irrebuttable. This particular maxim embodies what is at once a legal and a philosophical truth, that what a man consents to that he cannot complain of; and admitting that a good foundation is laid for its application no objection appears ever to have been made to its intrinsic justice. The disputes which have arisen with regard to it have been mainly disputes as to the definition of the word volens; What goes to the making a willing or consenting person? Two main views have been urged: first, that consent to the undertaking of a risk is to be presumed from the fact of working in the circumstances of risk-that a man is presumptively volens who is found working in circumstances of risk; and second, that working in circumstances of risk is no more than an element in the consideration of whether there is consent to the undertaking of the risk-that a man working in circumstances of risk is not presumptively volens, but invites further evidence that he is so. Both these views are in certain circumstances right, though neither can be asserted as an exclusive principle. The difficulties found in settling the rule applicable in any particular case have arisen mainly from the want of recognition, by those urging either of these views, that there is an appropriate place for the assertion of their own principle, without denying validity to what they are pleased to view-but wrongly-as an antagonist principle and which is in truth merely a supplementary one. A discussion may perhaps elucidate what the true line of demarcation is. In considering the classes of cases to which the maxim is applicable the rudimentary distinction must be borne in mind. between the case of a workman expressly engaging to do dangerous work, and the case of a workman not expressly engaging to do dangerous work, but the circumstances of whose continued working in a dangerous environment may warrant the inference that he has engaged himself to encounter the dangers incident to his employment. In the former case-to use the language of Lord Herschell in Smith v. Baker 1-'a person who is engaged to perform a dangerous operation takes upon himself the risk incident thereto.' If there is an agreement to encounter a risk, such agreement is legally valid, 1 (1891) A. C. 325 at p. 360 of the reports in the Law Reports. |