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Wheeler v New Merton Board Mills Ltd  2 KB 669
Employer liability for a personal injury arising from the employer’s breach of a statutory duty and defence of volenti non fit injuria.
An eighteen-year-old workman was working at a machine for cutting cardboard with revolving sharp knives and, whilst collecting the shavings, the machine cut off his fingers and hand. The machine was a dangerous machine that should have been fenced and/or guarded pursuant to the Factory Workshop Act 1901, and the employer was in breach of his obligation to do so. It was submitted that the employee was aware that the machine could have been stopped by a lever whilst he was collecting the shavings, yet never did so.
The question arose as to whether, in the presence of a breach of a statutory duty by the employer, the doctrine of volenti non fit injuria, namely that the employee knowingly took the risk, was a defence to the employer’s liability for the injury caused by the dangerous machine.
The Court held that the doctrine of volenti non fit injuria was not a defence to a personal injury claim against an employer arising from the breach of a statutory duty on the part of the employer. The Court of Appeal held that it was bound by previous, binding authorities that have refused to permit volenti non fit injuria in respect of an employer’s breach of a duty imposed by statute. On the facts of the case, the employer was in breach of a term of the Factory Workshop Act 1901 in leaving the dangerous machine without a fence and unguarded, and the employer’s knowledge of the danger was not a defence to the employer’s liability in respect of this breach. Thus, the employer’s liability for the injury was upheld.
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