Consent of Parties andVoluntas Legis

Abstract

Thosewho have commented on the moribund state of consent as a defence in tort have no doubt been eating their words since the decision of the House of Lords inImperial Chemical Industries Ltd. v.Shatwell; though what precisely that case has accomplished is not clear. By regulation 27 (4) of the Quarries (Explosives) Regulations, 1959, a duty was imposed directly on shot-firers (not on employers) to carry out tests only from behind shelter; and breach of it was an offence. Two shot-firers, George and James Shatwell, who knew of the regulation and of their employers’ unsparing efforts to secure compliance in the interests of safety, decided nevertheless to disobey the injunction simply because they could not be bothered to wait until a lead long enough to enable them to test from behind shelter was fetched. Both men were injured when a detonator exploded. George, who was the prime mover in this enterprise, then sued the employers as being vicariously liable for the breach of statutory duty by James.The lower courts reluctantly upheld his claim and rejected the defence of consent on the established ground, derived fromBaddeleyv.Earl GranvilleandWheelerv.New Merton Board Mills Ltd., that this is no answer to a breach of statutory duty. The House of Lords unanimously reversed the decision and held that consent was a defence in these circumstances.BaddeleyandWheelerwere distinguished on the ground that there the statutory duties lay on the employers, whereas here the duty lay on the employees themselves.