of being volens is presumed; from being volens the application of the maxim is further implied.

If this is a correct analysis of what is required to be stated in a pleading to found a right of action, much more must evidence of want of knowledge be given by the workman at the trial, else he fails to substantiate a material element in his cause of action. But since we see that ignorance of an apparent danger existing at the time of entering on an employment will not be inferred, it follows that a workman is presumed in law to have knowledge of it; and this presumption draws after it, without any subtle considerations whether the man appreciated the risk in addition to having knowledge of it, the presumption that the maxim applies. If his case then is that he knows the danger but does not appreciate the risk, he must be nonsuited, unless he specifically raises the point and gives evidence of it in a way the law allows; for the presumption of law is against him and must be rebutted before any right of action can arise.

This absence of any case to go to the jury was the plain ground of the decision of the Divisional Court in Thomas v. Quartermaine. To use the language of Lord Herschell, with the substitution of a distinct negative for his affirmative, 'It obviously was' not 'assumed in Thomas v. Quartermaine that there was a breach of duty on the part of the employer in not having the vats fenced.' Wills J. indeed expressly says, 'Even supposing there was any risk arising from the passage being narrow, that risk was one which the plaintiff could understand as well as anyone else could, nor could the employer know nor ought he to know anything more about either the nature or extent of the risk than the plaintiff himself.' That is, in the opinion of Wills J. there was no breach of duty at all on the part of the employer. Breach of duty was not merely not assumed, it was distinctly negatived. From this it followed that the plaintiff, of the two ingredients to a cause of action, knowledge of the master, and ignorance of the servant, shewed the presence of only one of them. In such circumstances no cause of action is shewn, and therefore there was nothing to leave to the jury.

Had Lord Herschell's alleged breach of duty existed, a right of action in respect of it would have already accrued to the plaintiff. If then the defendant wished to displace it by invoking the maxim Volenti non fit injuria, it could be only as matter in defence which could not be withdrawn from the jury.

The implication from what Lord Herschell says 1, though he nowhere expressly and distinctly formulates the proposition, is that

1 (1891) App. Cas. at pp. 365, 366.

VOL. VIII.

the question of knowledge or no knowledge is in every case for the jury. As a broad proposition this is just as false as the co-ordinate expression that the question of knowledge or no knowledge is for the judge would be if stated without regard to its limitations. Both propositions are equally true, however, when properly limited. As we have seen, the law presumes knowledge in the plaintiff of dangers in the work on which he accepts employment, till he has given evidence to negative the presumption. If this is not given it is for the judge to say that the facts as they appear infer knowledge on the part of the plaintiff; it then becomes the judge's duty to direct a nonsuit; and if he fails in this the Court of Appeal will redress his omission. When, on the other hand, the plaintiff has dispelled the presumption of knowledge he, so far as this point goes, has raised a presumption of breach of duty on the defendant's part. One of the lines of defence then the defendant may adopt is to attempt to shew, as in Smith v. Baker, that though the circumstances as detailed in evidence in chief led to the conclusion that there was a breach of duty, still admitting that, for the purposes of this special point, the plaintiff had waived his rights thus arising and was within the presumption expressed by the maxim. On the one side then there would be evidence of the breach of duty, which if uncontradicted would entitle the plaintiff to recover: on the other side there would be some evidence of acceptance of the conditions of workingand thus a conflict of evidence on a question of fact would be produced—which, whatever may be the opinion of the judge who tries the cause, as to its preponderating weight on one side. and absolute insignificance on the other, must in accordance with the opinion of the majority of the House of Lords in Dublin, Wicklow and Wexford Railway Company v. Slattery1 be decided by a jury.

So much then on Lord Herschell's view as to the application of the maxim Volenti non fit injuria. It may, however, be worth while to follow out his further criticisms on Thomas v. Quartermaine. 'If,' Lord Herschell continues, the effect of the judgment be that the mere fact that the plaintiff after he knew the condition of the premises continued to work and did not quit his employment, afforded his employer an answer to the action, even though a breach of duty on his part was made out, I am unable for the reasons I have given to concur in the decision.'

Lord Herschell assumes that the condition of the premises was altered after the commencement of the plaintiff's employment.

1 3 App. Cas. 1155. [Subject to the question of the verdict being against the weight of evidence, which in that case, as in Smith v. Baker, could not, as it happened, be raised on the appeal.---ED.]

་

But as the cases already noted', and the whole body of decisions on the point intermediate between the dates of the two decisions, shew, where there is no evidence given to shew whether a risk was existing before or added subsequently to a plaintiff's entering on an employment, the presumption of the law is that the employment was accepted subject to the risk. Now nowhere throughout the reports of Thomas v. Quartermaine is there any suggestion of evidence that the risk was a superadded one. The facts not only do not point that way, but the very other. 'Evidence was given by the defendant to shew that it was not usual to fence cooling vats.' Lord Herschell, to point his strictures, assumes further a breach of duty.' Now this breach of duty' must either have been having the cooler unfenced, or having the board put in too tight. There was nothing to shew that if the latter was the breach of duty it was not the plaintiff's own act or at least the act of a fellow workman. In neither case, either at Common Law or yet under the Employers' Liability Act, 1880, would the plaintiff be entitled to recover. Again, in the words of Lord Halsbury C. in Membery v. Great Western Ry. Co. 2, The thing done is done by himself; he does not contribute to it, but he does it; he puts the thing in motion.' And the same criticism on the plaintiff's action in Thomas v. Quartermaine is made in Smith v. Baker by Lord Morris 3: 'He was not directed to get the board; he did it of himself.'

6

If, however, the defect was not having the cooler or vat fenced, what duty was violated? As Lord Campbell said in Seymour v. Maddox, the facts of which seem not a little in point: In this case there is an allegation that it was the defendant's duty to light the floor and fence the hole, but no facts are alleged from which the duty arises. The express allegation therefore will not help the defect.' Lord Campbell's successor, Cockburn C.J., was commonly regarded as a judge not slothful where humanity was concerned; and in Clarke v. Holmes in the Exchequer Chamber his expressions went beyond what great judges like Mr. Justice Wightman and Mr. Justice Willes could adopt; yet speaking with reference to 'an employment from its nature necessarily hazardous,' which is scarcely an apt description of the employment in Thomas v. Quartermaine, he says, 'If he (the workman) thinks proper to accept an employment on machinery defective from its construction, or from want of proper repair, and with knowledge of the facts enters on the service, the master cannot be held liable for injury to the

1

Priestley v. Fowler, (1837) 3 M. & W. 1; Griffiths v. Lon lon & St. Katharine Docks Co., (1884) 13 Q. B. D. 259.

2

14 App. Cas. 179.

+16 Q. B. 326.

servant within the scope of the danger which both the contracting parties contemplated as incidental to the employment 1. Lord Herschell's view of the law may very possibly be correct if the plaintiff's position was that of one continuing at work after an alteration made in the circumstances of the work; but it has been pointed out already that this is a mere unsupported suggestion invalidatory of the decision; while the presumption of law is in favour of the contradictory hypothesis.

But does the Employers' Liability Act, 1880, alter the position in favour of the workman? By virtue of sec. 2, subsec. 2 of that Act a workman has no right to compensation for injuries caused by reason of any defect or negligence which is specified in sec. I in any case where he knew of the defect or negligence which caused his injury and failed within a reasonable time to give or cause to be given information thereof to the employer or some person superior to himself in the service of the employer, unless he was aware that the employer or such superior already knew of the said defect or negligence.' In other words, under the Employers' Liability Act, 1880, mere knowledge will in the circumstances indicated by the section raise a presumption of the application of the maxim where at Common Law, as is pointed out by Lord Watson 2, the workman's rights are greater than they are under the Act. 'At Common Law,' says his lordship, 'his (the employer's) ignorance would not have barred the workman's claim, as he was bound to see that his machinery and works were free from defect, and so far the provision operates in favour of the employer; but as was forcibly pointed out by Lord Esher M.R. in Thomas v. Quartermaine, in cases where the employer and his deputies were personally ignorant of the defect, it is made a condition precedent of the workman's right to recover that he shall have given them information of it before he was injured.' Thus so far from the Employers' Liability Act, 1880, adversely affecting the master's position in the matter now under consideration, in one very important respect the master's position is made stronger under it than it is even at Common Law.

It has been claimed, probably on the strength of Lord Herschell's remarks, that the House of Lords in Smith v. Baker 'overruled'

1 With reference to the present point it may be noted that in Thomas v. Quartermaine Lord Esher M.R., the dissenting judge, there speaking of Holmes v. Clarke says, 'It is binding on us, and moreover it is in my opinion rightly decided,' 18 Q. B. D. at 690. For other statements of the law to the same effect see per Kelly C.B. delivering the judgment of the Exchequer Chamber in Indermaur v. Dames, L. R. 2 C. P. 311 at 313. See also Montague Smith's remark in the same case, L. R. 1 C. P. at p. 282, and two Irish cases, Smyly v. The Glasgow & Londonderry Steam Packet Co., 2 Ir. C. L. R. 24, Sullivan v. Waters, 14 Ir. C. L. R. 460.

2

P. 356.

Thomas v. v. Quartermaine. It is worthy of remark that Lord Herschell's is the only opinion in which any doubt is expressed as to the stability of that decision. On the other hand Lord Morris expresses his entire agreement with the decision, and on grounds which have already been touched on in this paper.

6

The Lord Chancellor in his judgment has-perhaps unfortunately -introduced a new ambiguous expression and on a point not yet touched on amongst the disputable propositions collected under the shadow of the maxim Volenti non fit injuria. For my own part,' he says, 'I think that a person who relies on the maxim must shew a consent to the particular thing done;' and again3, 'I am of opinion myself, that in order to defeat a plaintiff's right by the application of the maxim relied on, who would otherwise be entitled to recover, the jury ought to be able to affirm that he consented to the particular thing being done which would involve the risk, and consented to take the risk upon himself.' The Lord Chancellor's expression is not felicitous, whatever his meaning. Moreover his meaning is doubtful. He may mean that where an employment is rendered dangerous knowledge generally of the increase of the danger will not disentitle a workman subsequently injured from recovering, but his attention must be specially called to the circumstances of the increased risk. For example, in Smith v. Baker, when the plaintiff first entered the employment his engagement was 'to fill skips or crates with stones which were to be lifted by a steam crane in order to be put into waggons.' While at this work he had an opportunity of observing that the crane when raising stones was sometimes swung over men while working and without notice to them and of concluding that this was dangerous. If Lord Halsbury's words mean no more than that notice of danger obtained in such circumstances was not to be construed into a consent to encounter the danger when the workman's work was altered and he was set beneath the crane, they express little more than a truism and merely add a possible additional ambiguity to the already too numerous ambiguous dicta. But to shew a consent to the particular thing done' may mean greatly more than this.

The illustrations of Lord Abinger in his well-known judgment in Priestley v. Fowler may well, with some limitations, be pointed to the Lord Chancellor's new-found principle. The footman, therefore, who rides behind the carriage may have an action against his

1 See at p. 369.

2 At p. 336.

3 At p. 338 Lindley L.J. uses the phrase 'to incur a particular danger;' it does not appear plausible to assume the Lord Chancellor meant the same thing when he speaks of shewing a consent to the particular thing done.' A particular danger may arise from a whole class of acts; a particular thing done' seems altogether singular.