Contrary to the company’s (Defendant) orders and law, a miner, X, asked Plaintiff “shall we do” an illegal and dangerous explosives test, to which Plaintiff relied “yes”.
They were injured and Plaintiff sued Defendant for its employee’s negligence.
HL held that where two fellow-servants combined to disobey an order deliberately though they knew the risk involved, volenti non fit injuria was a complete defence if the employer was not himself at fault and was only liable vicariously for the acts of the fellow servant.
The statutory regulations did not change this.
There is a difference between where Plaintiff and Defendant deliberately conspire to take an action despite knowing the risk involved and a case where Plaintiff and Defendant collaborate carelessly causing harm to one of them.
In the first case (deliberate) Violenti non fit iniuria is a full defence and in the second (carelessness) contributory negligence is a partial defence.
If Plaintiff “invited or freely aided and abetted his fellow-servant's disobedience,” then he was “volens” and the defence applies.
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