B e f o r e :
LORD JUSTICE SINGLETON
LORD JUSTICE JENKINS
AND
LORD JUSTICE PARKER
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Between:
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MORRIS
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CUNARD Steamship Co. Ltd.
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APPEAL AND CROSS-APPEAL
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(Transcript of the Shorthand Notes of the Association of
Official Shorthandwriters Limited,
Room 392, Royal Courts of Justice,
and 2 New Square, Lincoln's Inn, London, WC2A 3RU.)
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MR J. ROBERTSON CRICHTON, Q.C., and MR J. MELVILLE KENNAN (instructed by Messrs. Hill, Dickinson & Co.)
appeared on behalf of the Appellants on the first appeal and for the Respondents on the Cross-Appeal.
MR G. G. BAKER, Q.C., and MR MELVILLE WILLIAMS (instructed by Messrs. Neil Maclean & Co.)
appeared on behalf of the Respondents on the first appeal and for the Appellant on the Cross-Appeal.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
LORD JUSTICE SINGLETON: This is an appeal from a judgment of Mr. Justice Pilcher given on 21st June of this year. The appeal presents some little difficulty, partly because of the number of questions which arise, and partly because of the very serious injuries suffered by the Plaintiff, who is a young man, only 21 years old at the time of the accident.
The accident occurred on 26th June, 1953. At that time, the Plaintiff, Jack Charles Morris, was a steward on board the steamship "Caronia", which belongs to the Defendants, the Cunard Steamship Company, Ltd. He had made one previous voyage on the ship, at which time he was a dining room steward.
On the trip which commenced on 23th June, 1953, he was a steward of a different kind. He had thought he would improve his prospects by doing a different kind of work from that which the ordinary steward does, and he had become one who worked in a gang which is spoken of as "the bar stock gang." Twelve stewards were appointed to certain duties in connection with the bars upon the ship. In the early hours of the morning, when the passengers were slumbering, these men had to replenish the stocks in the different bars of the ship. The barrels of beer and cases of different kinds of drink were down in a hold. The supplies which were needed were brought from the hold by the aid of a winch to a platform on "B" deck. When they had been put on to the platform, they were taken by the stewards to the bars at which they were required. Another duty of the stewards who were in the bar stock gang was to collect the empty barrels or cases from the different bars, to take them to the same platform on "B" deck, and then to send them down to the hold from which the full barrels and cases had come. This was usually done between 7 o'clock and perhaps 9 o'clock in the morning. It might take longer, but as a rule it did not take very long.
I have said that when the full barrels and cases were brought up, they were brought up by the use of a winch which was in a small room alongside the platform on "B" deck. When the empties went down they were sometimes sent down by man-handling on the rope which was on the winch. A sufficient length of rope was secured to enable those of the gang who were on the platform to let the empties down by the system of man-handling. Sometimes, when the winchman was working the winch bringing up the full barrels and cases, he sent down the empties which were already on the platform by the use of the winch. But that was not always so.
The Plaintiff reported on the ship on 23rd of June. On the morning of the 24th June he was called on to perform his task, as one of the bar stock gang. He was told to go to the hold, and he went down to the hold of the ship some 20 or 25 ft. approximately below "B" deck. There he and three other men helped to put the full barrels or cases into some kind of sling, fastening a hook to the sling, and those full cases and barrels were taken up to the platform on "B" deck, with the help of the winch. The winch on these occasions was in the charge of a winchman named Francis. When the Plaintiff was down in the hold, he did not see precisely how the empties were sent down. They might have come by hand, or they might have been put down by the use of the winch by the winchman. That was the kind of thing the Plaintiff had to do on the morning of the 24th and 25th June .
On 26th June he commenced the same kind of work, but thereafter he was told to go up to the platform to send down some empties. No doubt there had been got up supplies needed for the bars, and what remained to be done was to put down the hold some more empties which had been collected. That was shortly before half past 8 in the morning. He and two of his gang of four went to the platform, and one of the four remained down in the hold to receive the empties. The men on the platform were preparing to send down the empties. The door of the winch-room was open. There were coils of rope more or less scattered about in the winch-room, and some of the rope was out on the platform. The Plaintiff went into the winch-room apparently with the idea of using the winch. He said when he gave his evidence at the trial that that is what he intended to do. He thought in the case of the empties which had to be sent down that it was the usual and normal thing to use the winch. The winch was not under power at the time. He looked for the switch and, according to his evidence, he called out to others: "Where is the switch?," and someone told him where it was. He switched on power and the winch began to rotate. He stepped upon some portion of the rope, and, most unfortunately, he was caught by the rope and drawn up against the winch and he received what can only be described as most terrible injuries. His left arm was torn off. He had a little stump left on which it was found possible to fit an artificial limb. His right leg was terribly broken. His head was injured. There is some question as to whether there was a fracture of the skull or not. Six or seven of his ribs were broken. I am glad to say he has made a most wonderful recovery having regard to the nature of his injuries. He was freed from the winch by one of his companions who turned the switch off.
When the ship arrived at New York -- she was on her way from Southampton to New York -- he was treated in hospital for a long time. I will come back to the nature of his injuries later.
He commenced an action against the Defendants, the Cunard Steamship Company, Ltd., and claimed that they were negligent, and were in breach of the duty they owed him under the common law, and that they ought to be ordered to pay him damages. The duty of employers to their workmen is to take reasonable care to see that their workmen are not subjected to unnecessary risk. One element in that has long been held to be the need to give instructions to young people who are called upon to undertake work involving danger. In 1907, in the case of Cribb v. Kynoch Limited, 1907 2 King's Bench page 548 Mr. Justice Bray at page 552, said :
"We think it is established by the two cases cited by the learned Judge -- Crocker v. Banks and Sharp v. Pathhead Spinning Company -- that, on setting an inexperienced girl to work at a dangerous machine or to deal with dangerous articles, the girl should be warned of the dangers likely to arise."
That principle is part of the common law of this country.
The Plaintiff was young. He had been a waiter. He was a steward in the bar stock gang when he met with his injuries. He was not a man who had ever used, or been trained to use, a winch. He knew nothing about winches. On the day on which he met with his accident, he and those who were with him upon the platform waited -- they had to wait, he said -- because the cooks were using the winch. One of the cooks, an assistant cook, was a man named Cartwright. Cartwright gave evidence on behalf of the Plaintiff. Cartwright, an assistant cook, who was a man of 21, said that he used the winch many a time, every day from time to time, in order to bring up flour, or anything required in the kitchen. After his evidence Mr Robertson Crichton, who appeared on behalf of the Defendants, admitted that Cartwright had used the winch systematically. The Defendants' case up to that time had been that no one except the winchman was allowed to use the winch. I should have thought it would have been a good thing if no one except the winchman, or those trained in the use of the winch, had been allowed to use it, and if there had been posted upon the door of the winch-room a notice that no unauthorized person was allowed to touch the winch. And it would have been better if the winch-room had been kept locked when the winchman was not there. But, so far as the evidence shows, when the winchman left for his breakfast, perhaps at 8 o'clock in the morning, the winch-room door was left open and others could use the winch if they wished to do so. One of the others who wished to do so appears to have been a cook, perhaps I should say the cook Cartwright; I do not know how many people did use the winch.
The Plaintiff's case was that he was called upon to send the empties down from the platform on "B" deck to the hold in the ship, and that the use of the rope which was attached round the winch was necessary for that purpose; so that in any event he and those with him would have to use the rope which was upon the winch. He said that he had been in the hold the previous morning when the empties were lowered, but he had not done any work upon the platform until the morning of his accident when they were told to lower away the barrels. He was asked: "Who told you to lower away?," and he answered: "It was the day officer then." The man in charge of the gang during the early part of their morning's work was the Chief Tourist Steward named Burton. He was on night duty, and he went off work some time during the morning. From about 8 o'clock onwards the man in charge of the bar stock gang, spoken of by the Plaintiff as the day officer, was a man named Hannam. Hannam was not called as a witness in this case, but Burton was, and I shall refer to his evidence in a moment. The Plaintiff said how he and the two others were on the platform. They were told to lower the empties. He was asked by his Counsel:
"From the time when you and the others were told to lower away barrels from the "B" half-deck to the bottom, and when you were on "B" half-deck, I want you, without more questions from me, to tell his Lordship in your own words exactly what happened between that moment and your accident.
A.: Yes. We went along to the half-deck, to "B" hatchway. We had some barrels to take along there."
The Judge repeated his answer, and he said:
"Yes. We could not use the winch right away.
Q.: Why not?
A.: Because there were some cooks using it to bring some stores -- some flour and stuff -- up. Then they finished.
Q.: You were waiting?
A.: Yes.
Q.: 'We accordingly waited until they had finished'.
A.: And then, as I thought was the normal procedure, I volunteered to use the winch to lower the barrels".
In the result, in reply to the Judge, the Plaintiff said:
"As I thought that was the only way it could be done -- that is, to lower the barrels with the help of the winch --.
"Then I went into the winch-house".
(Mr. Denny): Did you go in through the door which shows in the photograph near the barrel?
A: Yes. We got the rope out from there.
(Mr. Justice Pilcher): You say 'we' were doing things?
A.: Yes, there was Harding and Hynes too. They were on the hatchway.
Q.: 'I went into the winch-house'?
A.: Yes.
(Mr. Denny): What did you do when you got into the winch-house?
A.: I got the rope out and came out with it. I then asked one of the chaps where the switch of the winch was.
(Mr. Justice Pilcher): One of your two friends?
A.: Yes. By this time I was back in the winch-house, and one of them -- I do not know who it was -- shouted out that they believed it was behind -- it was a butterfly switch, behind, on the winch.
Q.: I do not know how the rope was disposed at this time.
A.: Harding and Hynes were then getting it around the barrel, the end.
Q.: They were in the winch-house too?
A.: No, they were on the hatchway.
(Mr. Denny): The half-deck?
A.: The half-deck -- the platform. They were on the platform.
(Mr Justice Pilcher): The barrel was on the winch itself?
A.: No, I am sorry, I meant a beer barrel.
(Mr. Denny): I am sorry, I was calling the thing on the winch the drum, to avoid that confusion.
(Mr. Justice Pilcher): The other two were getting a barrel ready to sling?
A.: Yes, ready to sling. I shouted out, was everything O.K.
(Mr. Denny): You shouted out?
A.: Yes, I shouted out.
(Mr. Justice Pilcher): Where was the rope on the winch?
A.: That was around the drum.
Q.: 'The rope was round the winch's drum and all over the floor'?
A.: There were some coils of it. It was quite a long rope. I have never seen -- I could not see how you could coil it all up. You would have a tremendously high coil.
Q.: Some coils over the floor.
A.: Yes.
Q.: How many turns were on the drum?
A.: Two.
(Mr. Denny): What did you do?
A.: Then I shouted out if everything was O.K. They replied that it was. I switched the winch on, stepped back to draw the rope -- to lift the barrel from the deck to swing it out.
(Mr. Justice Pilcher): Switched on, stepped back to hold on to the free end of the rope?
A.: That is right. I stepped back from the winch.
Q.: "I stepped back with the free end of the rope taut"?
A.: As I did so I came round to the front of the barrel, went to pull
Q.: 'As I did so' --
(A) I came round to the front of the drum of the winch and, as I pulled, I stepped forward, and that is when I stumbled on some rope. I put my hands out to stop myself falling and I fell into the winch which was turning.
Then he said that he caught his foot and stumbled. He was trapped by the rope and drawn up against the drum of the winch and received his serious injuries. He was asked if he had been instructed about the winch, and not to use the winch. He said he had not. He said he had received no instructions. He was asked if he had been told to lower the empties by hand with the use of the rope, and he said he had not -- he had had no instructions. In answer to a question in cross-examination, or in reply to a question of the Judge, he said that he thought he was doing the normal thing when he went in to switch the power on to the winch. He thought that was the usual thing to do.
If that is right, it constitutes a strong case against the Defendants. If a young man unaccustomed to the use of a winch is told to lower the empties from the platform on "B" deck to the hold below, if he had seen other people using the winch, and if he is not instructed not to do so, it may be said that it is not to be expected that he will never touch the winch. The duty of the Defendants in such a case is to warn a young man who is put on to this kind of duty not to touch the winch. The Plaintiff's case is that he was given no such warning.
On the other hand, the Defendants say that he was warned. In the Further Particulars which they gave they said that, on the 24th June Mr. Burton instructed him at No. 1 hatchway, and the wolds used were "that no member of the bar stock gang, including the Plaintiff, was to operate the winch." It was said further "that instructions were given orally at the said hatchway on the said 24th June 1953 by Burton. The words were that empty barrels had to be lowered by hand". Those were the Further Particulars given by the Defendants by letter of 30th December, 1954.
Burton gave evidence to the effect that he addressed the gang on the morning of 24th June, 1953, and gave them instructions that they were not to operate the winch. He did not say that he gave instructions that the empties had to be lowered by hand on that occasion. When he was cross-examined, he said that he could not be sure that the Plaintiff was there at the time he gave the instructions, but he thought he was. He assumed that they were all there. The Plaintiff, on his evidence, had not been given any such instructions either against the use of the winch or as to how the empties had to be lowered.
As I have said, the assistant cook, Cartwright, gave evidence, and if his evidence were accepted to the full -- I am not sure that it was -- the winch was used by butchers, bakers and by quite a number of people.
Francis, the winchman, was called on behalf of the Defendants, and he said that he had sometimes found that the rope was not coiled when he went back from his breakfast, or wherever he had been, and he made inquiries and he found that the person who had used the winch was Cartwright, and they had a quarrel about it. There can be no question, upon the admissions made by the Defendants after Cartwright's evidence that Cartwright had used the winch quite often for his purposes, and he said that many other people had done so, too. That was disputed by the winchman. As far as I can gather from the evidence in the case, there was no system of any kind under which the winch was kept secure. There was no lock to the door, and there was no notice upon the door. A young man like the Plaintiff, and some of the stewards who saw other people using the winch, might well think that they could use the winch, though I am inclined to think they ought not to have done so. They had to make use of the rope which was on the winch.
The real question which arose was: Was any warning of any kind given to this young steward before he entered this work? His case was that there was no warning whatever. The Defendants' case, through Mr. Burton, and in the absence of Mr. Hannam, was that Plaintiff was in the gang when Mr. Burton gave a warning on the morning of the 24th June . On the 24th and 25th June , the Plaintiff worked only in the holds. He had not worked upon the platform on "B" deck until the occasion on which he met with his accident. There is no evidence at all to show that when he was put to work upon the platform he was given any instructions or was under any supervision of any kind.
It is said, as I have pointed out already, that he was one of a gang when there was a warning given on the morning of the 24th June that they were not to use the winch, but he denies any such warning.
Upon that last issue the learned Judge had to consider the evidence given by the Plaintiff and by Mr. Burton. Mr. Justice Pilcher said -- I read from his Judgment --
"I should add that the Plaintiff appeared to me to give his evidence very frankly and well, although it is quite true that the pleaded account of the exact way in which he became involved with the winch and the rope is different from the account which he gave in the witness-box. I will deal with that presently. In every other respect the Plaintiff appeared to me to be an honest and candid young man, and I saw no reason to disbelieve him. In fact his manner was good; he did not exaggerate, and I was favourably impressed with him."
That is the opinion of the Judge about the Plaintiff -- "I saw no reason to disbelieve him." The Plaintiff had sworn upon his oath that he had received no warning and no instructions as to how to handle the empties when he was putting them down. Mr. Burton gave the evidence to which I have already referred. The learned Judge considered Mr. Burton an honest witness. Faced with that issue, the learned Judge seems to have become harassed by the question of onus of proof. At an early stage in his judgment there is a reference to it, and the Judge does not appear to me to be wholly accurate in his exposition of the law. There are other references later, and great importance is attached to them in this case by Mr. Robertson Crichton for the Defendants. Mr. Justice Pilcher continued, after discussing the evidence and pointing to the two different stories on page 14:
"On the other hand, if he was warned by Mr. Burton that he must not touch the winch or use the winch, then his claim, in my view, must fail, and fail totally, because, if he was given a specific warning with regard to using this winch, he had no business whatsoever to try to do it, and his claim must fail."
The learned Judge went on to point out that he had to determine the question whether a warning was given or not. He said on page 15:
"One is reluctant to determine cases upon onus, but there are cases in which the evidence is so evenly balanced that it is impossible to do anything other than that. As I have said, I found no fault in the demeanour and manner either of the Plaintiff or of Mr. Burton or of Mr. Francis, the winch-driver, whose evidence, which I have not read, fully supported the evidence of Burton, in that he said: 'The men were all there; I heard Burton give the warning. I cannot swear that the Plaintiff was there at the time. I did not know him by sight'".
The learned Judge then referred to the fact that when the Plaintiff had been asked about Mr. Francis, and whether he was told that Francis was the winch-driver, he had said:
"I did not know there was such a man as Francis or a winch-driver and I honestly thought we were expected to use this winch, and I never received any warning."
Mr. Justice Pilcher added:
"I am not prepared to find that he did receive a warning and I therefore conclude that no specific warning was given to the Plaintiff in regard to what he should or should not do with this winch. I am equally satisfied that he did not know for a fact -- he probably never directed his mind to the question -- how the empties had been lowered down the previous day."
I treat that as a finding of fact that no warning was given in regard to the winch. If that is right, no question of onus arises. I think it is a matter for regret that the learned Judge, for some reason I do not know, became tied up in this question of onus. In my view it was for the Plaintiff to prove his case. It was part of his case that he was as a young man put to work at a dangerous piece of machinery without instructions; that he was not warned. The learned Judge in the passage I have read, I think, found that case proved. If that is right, no question of onus one way or the other need be considered. It was for him to make up his mind as to whether a warning was given or not. If there was no warning given, the Plaintiff was right, but, if there was a sufficient warning, the Defendants were right.
The learned Judge was not prepared to find that the Plaintiff did receive a warning. He concluded: "No specific warning was given to the Plaintiff . . . I am equally satisfied that he did not know . . . how the empties had been lowered down the previous day." Those ought to be treated by the Court as findings of fact -- so I think. If they are so treated, the Defendants failed in the duty they owed to *590 this young man to give him some instructions. If he were not supposed to use the winch, as was the case, he ought to have been told. Others used the winch. As I say, if he saw others than the winchman using it, I think he may well have thought it was the right thing to do.
The learned Judge in one passage said that the Plaintiff stated that he thought it would be an interesting thing to do to touch the winch. That was in reply to a question by the learned Judge. The witness had said that he thought it was the normal and usual thing to send the empties down by the use of the winch, and he volunteered to use the winch. The learned Judge said to him: "You thought it would be an interesting thing to do?" "Yes," said the Plaintiff, "I thought it was the ordinary or usual thing to do." It was not quite, as the Judge put it, that the Plaintiff was going to look into something which he thought interesting and to switch on out of interest. He was doing on his account, which was accepted by the learned Judge, that which he thought was the normal and usual thing to do in the work which he was instructed to perform.
In these circumstances, it appears to me that the learned Judge was right in finding, as he did, that the Defendants, the steamship owners, were guilty of negligence.
The Judge had also to consider the submission made on behalf of the Defendants that the Plaintiff, himself, was guilty of contributory negligence, and he held that he was, and assessed the proportion of responsibility for the damage at two-thirds against the Defendants and one-third against the Plaintiff. Mr. Baker in this Court submitted that negligence was not proved against the Plaintiff, and that, in any event, if it could be held that there was any negligence, the apportionment of the Judge should be left as it is.
Mr. Robertson Crichton, on behalf of the Defendants, had submitted that the proportion of liability to be put upon the Plaintiff should be much higher than it was on the Defendants. I am satisfied that there was evidence in this case on which the learned Judge was entitled to find negligence on the part of the Plaintiff. I do not think that a young man such as this, who had never seen a winch before, ought to have gone into the room and switched on power without asking some senior person, someone who knew something about it. The Plaintiff did that. On the other hand, he had seen the cook, or cooks, doing it just before he did it. He and the other men had waited until the cooks finished the hauling up of their goods: I do not know if they had sent anything down.
Mr. Justice Pilcher, in the course of his judgment referred to the Plaintiff's conduct as "stupid" and as "insane." Those are strong words, and, if they were a true description of the Plaintiff's conduct, I am inclined to think that the proportion of responsibility against the Plaintiff might have been higher. But Mr. Justice Pilcher considered all the facts, and he thought he ought to hold the Plaintiff one-third to blame. I do not see any reason why this Court should alter that finding. For a number of years now, the principle adopted in this Court has been that adopted in the Admiralty practice and approved in the case of The Macgregor, 1943 Appeal Cases page 197; I refer in particular to the words of Lord Simon on page 199 and of Lord Wright on page 201. I do not read the passages. If the Judge of first instance on all the facts has decided what is the fair proportion of responsibility for the damage, this Court ought not to interfere. The words in section 1, sub-section 1, of the Contributory Negligence Act, 1945, are:
"Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the Court thinks just and equitable having regard to the claimant's share in the responsibility for the damage".
The learned Judge had that in mind when he fixed what was just and equitable having regard to the Plaintiff's share "in the responsibility for the damage." There has been a little departure, perhaps, lately from the general rule that this Court ought not to interfere, unless there be exceptional circumstances, with the degree of responsibility awarded by the learned Judge. I am satisfied that we ought to keep to the principle stated in the case of The Macgregor, sup., and ought not to alter the proportion determined by the learned Judge.
There is one further matter, and I think only one, with which I must deal, and that is the appeal by way of cross-notice on behalf of the Plaintiff directed to the amount of damages. The learned Judge, who found for the Plaintiff, was faced with an extraordinarily difficult problem in determining what amount should be awarded as damages. There was the out-of-pocket loss, after credit was given for everything for which credit was due, and that was agreed at the sum of £913 17s. 2d. The action was heard about three years after the date of the accident. To that sum there was added by the learned Judge's judgment the sum of £,5500 general damages. That meant a total assessment of damages of £6,413 17s. 2d. The Plaintiff was to receive two-thirds of that amount, so the judgment in his favour was for the sum of £4,275 18s. 1d.
The appeal by the Plaintiff on this head is directed to the sum of £5,500 general damages. It is claimed that that sum is much too little to provide adequate compensation for the injuries the Plaintiff suffered. I cannot disguise from myself that I think it is low. Again, it is the duty of this Court to follow the rules which have been laid down for our guidance over the years. One of those rules is that, on a matter such as this, the Court of Appeal ought not to interfere with the award of damages made by the judge of first instance unless he is mistaken on the evidence, or unless the damages are so high or so low as to be altogether an erroneous estimate. In another case it was said that the damages must be either "inordinately high" or "inordinately low" before the appellate Court can properly interfere.
This man did suffer, and is suffering, from the most grievous injuries. I should think that there are few who can remember so serious a collection of injuries from which a man has made so good a recovery. I have mentioned the left arm which has gone. Fortunately, there were five inches of stump to which an artificial limb could be fitted. His right leg is in a most extraordinary condition. It is described in the report of Sir Hugh Griffiths as "unstable". There are many other injuries, some of which I have mentioned already. Notwithstanding all that, he is working now, helping in his father's motor car business mostly work of a sedentary nature. He can take delivery of a car and he can drive a car. He can help in the business. He is earning £7 10s. 0d. a week. I very much doubt whether he would be able to earn anything like that anywhere else, but he might. He is a man of intelligence. In the ordinary way, he must be faced with a considerable loss of earnings in the future, to say nothing of the discomfort, pain and loss of amenities. Therefore, I am bound to say I regard the damages as low, but this man has through his own efforts made such a good recovery and done so much for himself, and I am unable to say that the amount awarded by the learned Judge is so low that it is the duty of this Court to interfere.
I fear that it may be said sometimes that the more a man does to help himself, the less he gets, which may seem hard. But, after giving the best consideration I can to this case, I feel that both the appeal of the Defendants and the cross-appeal of the Plaintiff should be dismissed.
LORD JUSTICE JENKINS: I agree. At the time of the accident, which took place on 26th June, 1953, the Plaintiff was a young man 22 years of age. His only previous experience of work on board a ship was, I understand, in the capacity of a waiter, and he knew nothing of the work of an assistant steward, or in particular the work of an assistant steward detailed to the bar stock gang. In these circumstances, the case was eminently one in which the defendant employers' common law duty towards their employees extended to seeing that the Plaintiff received proper instructions and was under proper supervision in any task which might otherwise, inexperienced as he was, prove a source of danger to him. It appears to me -- and, indeed, the result has proved -- that an object such as the winch which occasioned the Plaintiff's injuries in the present case is plainly a dangerous apparatus, if handled or dealt with by a person not possessed of sufficient knowledge of its working. It follows that if the Plaintiff's duties were going to take him into the proximity of such a winch in circumstances in which, unless specifically warned, he might attempt to use it, his position would be highly dangerous. In my view, therefore, the Defendants in this case committed a breach of their common law duty unless in fact they warned the Plaintiff not to touch this winch, and also instructed him how he should carry out any duties in proximity to the winch which in the absence of such instruction might in his view require the use of the winch, and thus make it proper for him to use the winch unless he was specifically told not to do so.
On the question whether any warning was given there was a conflict of evidence. Mr. Burton, the chief night steward, gave evidence, to which my Lord has referred, to the effect that the assistant stewards in the bar stock gang were mustered on 24th June , the day after the sailing day, at 7 or ten minutes past 7, in the morning, and were detailed to their various tasks. According to this witness. Mr. Burton, they were expressly warned not to tamper with the winch, and Mr. Francis, a deck-hand, was pointed out to them as the man who worked the winch. That is the Defendants' version of the affair, and it was corroborated by Mr. Francis to the extent that he said that there was a muster on this occasion, and that Mr. Burton told those present that they must not meddle with the winch, and pointed out Mr. Francis as the man who worked the winch. On the other hand, the Plaintiff denied that he ever received any warning at all.
The learned Judge was favourably impressed by Mr. Burton and the Plaintiff, and regarded them both as witnesses who were trying to tell the truth. But, in the result, I think he must be taken to have found as a fact that the Plaintiff did not receive any warning, either because he did not hear it when it was given out, or because he had left the muster and was elsewhere when it was given out, or because it was given out before he arrived, or perhaps for some other reason.
That being so, it seems to me that the Plaintiff is entitled to succeed, subject to the matter of contributory negligence. The Defendants say, in effect, that their fault, if any, was an extremely venial one, because all it amounted to was that, although they used their best endeavours to give a warning, it so happened that this particular assistant steward did not receive the warning given, and that can hardly be called a fault on their part. The answer to that is, as it seems to me, that an oral warning is not so effective as a written or printed warning in the form of a notice pinned up on a notice board, or words painted on a door, which are there for everybody to see. If all that was given in the way of warning was an oral warning given at an early morning muster, I think the Defendants only have themselves to thank if they are now held liable because the warning did not reach the injured man.
But the matter does not rest there. The officer in charge of the day duties was the chief day steward, Mr. Hannam. He did not give evidence. It is really not in dispute that it was he who took the Plaintiff from his work in the hold and set him on to deal with the empty barrels and cases on the platform or half-deck. As I have said, Mr. Hannam did not give evidence; and there is no evidence from anyone else to the effect that he ever warned the Plaintiff, or the Plaintiff's companions, how to carry out the job of lowering the empties. It must be taken, therefore, that they were put on to this job to do it the best way they could, without any instructions as to how it should be done. The half-deck or platform was adjacent to the winch, and there is evidence that the door of the winch-house was open and that the long rope used for the purpose of raising stock from below was coiled about the floor, it would seem in a somewhat disorderly fashion. Its end went in a couple of turns round the drum of the winch. This was the setting in which the Plaintiff was left to lower the empties without any instructions.
It appears to me that in these circumstances what actually happened was a readily foreseeable occurrence. The Plaintiff, according to his evidence -- and I repeat that the learned Judge accepted him as a witness of truth -- said that he understood that it was proper to use the winch for the purpose of lowering the empties, and with that idea in mind he in fact started it and received his injuries. That was an event which, as it seems to me, was only too likely to happen in default of proper instructions being given to the Plaintiff. Any doubt he was under as to the propriety of using the winch may well have been dispelled by the circumstance to which my Lord has referred, that Mr. Cartwright, a cook, and apparently one or more other cooks as well, were seen by the Plaintiff to make use of the winch, working it themselves and not waiting for Mr. Francis, or attempting to get Mr. Francis, to work it.
The learned Judge, if I may say so with all respect to him, appears to some extent to have confused the issue in this case by reference to the onus of proof. I do not think this is a case in which the question of onus of proof need be investigated at all. For the reasons I have endeavoured to state, I think on the facts which the learned Judge must be taken from his judgment to have found, the Plaintiff's case was made out, and he was entitled to succeed in the action.
As to the matter of contributory negligence, speaking for myself I think that on the footing that there was no warning at all, and having regard to the fact that the winch was to all appearance part of the apparatus to use for lowering as well as raising the stock, the Judge may perhaps have been rather severe on the Plaintiff in holding him as much as one-third to blame. But it is notorious that these matters of proportion are eminently matters for the Judge of first instance, and that his decision should not be interfered with by this Court save in most exceptional circumstances. I cannot find anything so unreasonable or excessive in this apportionment of blame to justify our re-opening it in favour of the Plaintiff. Nor can I hold that the case is one in which the damages should be reviewed. I would leave the quantum and the proportions as they stand. It follows that I think the cross-appeal should be dismissed.
As regards the quantum of damages, the view has been expressed by my Lord that the damages here were on the low side having regard to the very serious nature of the injuries suffered. But it must be remembered that these questions of quantum of damages involve so many imponderable matters and so many matters of opinion that it is probable that no two Courts independently investigating the same case would reach the same figure. That being so, it has been laid down for the convenience of all that an appellate Court should not interfere with the quantum of damages unless the amount awarded in the Court of first instance is demonstrably and grossly too high or too low.
For these reasons, I agree with my Lord that the appeal and the cross-appeal both fail and should be dismissed.
LORD JUSTICE PARKER: I have come to the same conclusion.
On the morning of 26th June, 1953, the Plaintiff and three other men forming part of the bar stock gang were instructed by the chief day steward, Mr. Hannam, to lower empties from this platform into the hold. The Plaintiff at that time was inexperienced in these matters. He had only joined the ship only two day before. During those days he had in fact been working at the bottom of the hold. The winch, contrary to what the learned Judge supposed, could be used not merely to hoist but to lower. As I understand it it had no reversing gear, but according as to which way round the rope was wound you could either hoist or lower. Nevertheless it appears that the proper way to lower the empties was not to use the winch but to take the rope off the winch and man-handle the barrels and empty cases down into the hold.
It seems to me perfectly clear that it was the duty of the Defendants, at any rate, having regard to the inexperience of the Plaintiff, to give him adequate instructions and supervision as to the method of doing the work. It is admitted that Mr. Hannam, who gave those instructions, never gave him any instructions at all as to the way in which the work was to be done. He never said: "You must not use the winch: you must manhandle these casks down to the hold. True you may go into the winch-house but only to remove the rope from the winch, and on no account must you use the winch." Not a word was said on those matters. Indeed, the fact remains that if Mr. Hannam had come on to the platform in order to supervise this gang doing the work -- in the case of the Plaintiff for the first time -- he would have seen Mr. Cartwright, the assistant cook, in fact using the winch, a thing which he had no authority to do. So that on the face of it, there appears to me to be a flagrant breach of duty towards the Plaintiff.
But it is said that there has in fact been no breach, because two days before, Mr. Burton, who was the chief night steward, had mustered the whole of the bar stock gang, some 12 men, and given them instructions that on no account were they to touch the winch. The question of fact whether such a warning was given or not was the chief issue in the trial below. Speaking for myself, even on the assumption that such a warning was given some two days before to all these men, I am not satisfied that that was sufficient. Four of the men were going amidships and would have nothing to do with the winch. Four of them, of whom the Plaintiff was one, were going down the hatch. So far as the other four were concerned who were going to work on the landing, Mr Burton, after the other eight had left, did give them specific instructions as to how the empties were to be lowered. It is perfectly clear that even if the Plaintiff had received those instructions, he may well have thought them inapplicable when he went on 26th June to that landing. He saw another man operating the winch, and had never been told that the winch was not to be operated for lowering; and that there was no deck-hand there to work the winch. He might well think that he was not acting improperly and contrary to orders in going into the winch-room and switching on the winch. However, if I am wrong about that, the question remains as to whether Mr. Burton did cause the Plaintiff to receive a warning two days before on the morning of 24th June.
Most unfortunately, as it seems to me, the learned Judge appears to have decided this matter having regard to what he conceived to be the onus of proof. No less than three times in the course of his judgment does he state the proposition that if an employer puts an employee to work near a dangerous machine, it is for the employer, the Defendants in this case, to satisfy the Court that a warning was given. It seems to me that that is wrong. It is always for a Plaintiff to prove that his employers have failed to take reasonable care, and, if reasonable care involves the giving of a warning, it follows that a plaintiff must prove that no warning was given. The learned Judge on page 16 of his judgment says this:
"One is reluctant to determine cases upon onus, but there are cases in which the evidence is so evenly balanced that it is impossible to do anything other than that".
In other words, he is stating clearly: "I am going to decide it on what I conceive to be the onus of proof." It is true that further down on page 15 he says:
"I am not prepared to find that he did receive a warning and I therefore conclude that no specific warning was given to the Plaintiff".
Following, as it does, on the statement above that he is going to decide the case on onus, it appears to me that that really is saying that the Defendants have not satisfied him that the Plaintiff did receive a warning. For my part, I think that that was a misdirection, and the finding in that form cannot be supported. It is unfortunate because I do not see how onus entered into this case. No doubt at the end of the Plaintiff's case the Judge was clearly satisfied in his mind that the Plaintiff was an honest man and that he saw no reason to disbelieve him. In other words, there was a clear case for the Defendants to answer. The fact that there is a clear case for the Defendants to answer in no way involves the shifting of the onus. At the end of the day it is always for the Plaintiff to satisfy the Court that a breach of duty has been made out.
On the facts of this case, it seems to me clear that the Plaintiff has established that, on the balance of probabilities, he did not receive this order. The learned Judge found that he was an honest man, and he says that when he went into that winch-room and switched on the winch he did it because he thought it was the proper procedure and was what he ought to have done. If he was an honest man, he could not have said that if he had been warned as Mr. Burton said.
Apart from that, Mr. Burton, who gave his evidence in a very candid manner, was unable to say for sure that the Plaintiff had been present. For my part, I am satisfied that, applying the ordinary onus of proof, the Plaintiff made out his case.
So far as contributory negligence and damages are concerned, I have nothing to add to what my Lords have said.
MR BAKER: I ask that the appeal be dismissed with costs, and the cross-appeal dismissed. I understand my friend agrees to that form or order.
MR ROBERTSON CRICHTON: Yes, I am instructed not to ask for the costs of the cross-appeal.
LORD JUSTICE SINGLETON: Yes, they would not be very much.
MR ROBERTSON CRICHTON: They would not be very much, and my clients do not want to ask for them. But what I am instructed to ask is for leave to appeal, if your Lordships would grant it.
LORD JUSTICE SINGLETON: Is this a legally-aided case?
MR BAKER: No, my Lord. It is not a legally aided case?
(The Court conferred).
LORD JUSTICE SINGLETON: I do not think we ought to give you leave.
MR ROBERTSON CRICHTON: If your Lordship pleases.
LORD JUSTICE SINGLETON: You can always apply for leave if you want it. If you do, you may well be faced with a cross-appeal on the question of damages, and that might be helpful to us hereafter.
MR ROBERTSON CRICHTON: We shall watch our step very carefully in that respect after that warning.
(During the course of the argument the Plaintiff was called on to the Bench and their Lordships examined his arm and leg).
