Die Mercurii, 13°
Decembris 1950
Upon Report from the Appellate
Committee, to whom
was refer red the Cause Paris against Mayor
etc. of Metro-
politan Borough of Stepney, that the Committee
had
heard Counsel, as well on Thursday the 26th and Mon-
day
the 30th, days of October last, as on Thursday the
2d day of
November last, upon the Petition and Appeal
of Edward John Paris,
of 32 Grove Road, Bow, London,
E.3, praying, That the matter of
the Order set forth m
the Schedule thereto, namely an Order of His
Majesty's
Court of Appeal of the 27th of October 1949, might
be
reviewed before His Majesty the King, in his Court
of
Parliament, and that the said Order might be reversed,
varied
or altered, or that the Petitioner might have such
other relief in
the premises as to His Majesty the King,
in His Court of
Parliament, might seem meet; as also
upon the printed Case of the
Mayor, Aldermen and
Councillors of the Metropolitan Borough of
Stepney,
lodged in answer to the said appeal; and due
considera-
tion had this day of what was offered on either side
in
this Cause:
It is Ordered and
Adjudged, by the Lords Spiritual
and Temporal in the Court
of Parliament of His Majesty
the King assembled, that the said
Order of His Majesty's
Court of Appeal of the 27th day of October
1949, com-
plained of in the said Appeal, be, and the same is
hereby,
Reversed, and that the Judgment of the Honourable
Mr.
Justice Lynskey of the 11th day of April 1949, thereby
set
aside be, and the same is hereby, Restored except
in regard to the
amount thereby adjudged to be
recovered by the Plaintiff from the
Defendants: And
it is further Ordered, That the Respondents
do pay, or
cause to be paid, to the said Appellant such Costs
as
have been incurred by him in the Court of Appeal, and
also
the Costs incurred by him in respect of the said
Appeal to this
House, the amount of such last-
mentioned Costs to be certified by
the Clerk of the
Parliaments: And it is also further Ordered.
That the
Paris w. Mayor,
etc., of
Metropolitan
Borough of
Stepney.
HOUSE OF LORDS
Lord
Simonds
Lord
Normand
Lord
Oaksey
Lord
Morton of
Henryton
Lord Mac-
Dermott
PARIS
v.
MAYOR, ETC., OF METROPOLITAN BOROUGH OF STEPNEY
13th December, 1950.
Lord Simonds
MY LORDS,
This is an appeal from an Order of the Court of Appeal
setting aside
a judgment of Mr. Justice Lynskey in favour of the
Appellant for £5,250
damages and costs.
On the 13th May, 1942, the Appellant entered the
service of the
Respondents as a garage hand in their Cleansing
Department. He was then
for all practical purposes blind in his
left eye, having suffered serious injury
in May, 1941, as the
result of enemy action, but this fact was not known
to the
Respondents at that time. On or about the 22nd June, 1946, he
was
medically examined with a view to his becoming a member of
the
permanent staff and joining the superannuation scheme, and on
the 26th
July, 1946, the Medical Officer reported to a Mr. Boden,
the Respondents'
Public Cleansing Officer, that the Appellant was
not fit on account of his
disablement to join the superannuation
scheme. On the 16th May, 1947,
he was given two weeks' notice
expiring on the 30th May, 1947, to terminate
his employment. I
will assume that at this date the Respondents had notice
of his
physical disability, including the blindness of his left eye.
On the 28th May, 1947, the accident occurred which gave
rise to the
present action. The Appellant was engaged in
dismantling the chassis of
a gulley cleaner, a type of vehicle
generally used by local authorities for
the cleansing and
flushing of street gulleys. The vehicle had been raised
about
41/2 feet from the garage floor by means of a ramp. The
Appellant
had to remove a " U " bolt holding the
springs of an axle and, to release it,
he hit the " U "
bolt with a steel hammer. As the result of his doing so
a piece
of metal flew off and entered his right eye with the
disastrous
consequence that he lost the sight of it altogether.
On the 8th August.
1947, he commenced his action against the
Respondents claiming damages
for their negligence and breach of
statutory duty. The Respondents put
in a defence denying
negligence and raising an alternative plea of con-
tributory
negligence which has not been pursued. Nor has the Appellant
pursued
his claim for breach of statutory duty. The single question
is
whether the Appellant proved the negligence of the
Respondents, a question
answered in the affirmative by Mr.
Justice Lynskey, in the negative by
the Court of Appeal.
What then was the negligence alleged by the Appellant
and denied by
the Respondents? It was that it was the duty of the
Respondents to supply
the Appellant with suitable goggles for the
protection of his eyes while
he was engaged in such work and to
require him to use them. I can come
at once to the crux of the
matter. In the statement of claim this duty is
pleaded as a
general duty owed by the Respondents to their employees
engaged
in this class of work: the Appellant did not allege a
particular
duty owed to him by reason of his individual
infirmity. At what stage
this plea emerged is not very clear,
but, having more than once read
the judgment of Mr. Justice
Lynskey, I share the view of the Lord Chief
Justice that that
learned Judge decided the case upon the ground that
a special
duty was owed to him as a one-eyed man, and it is clear that
2
in the Court of Appeal and in this
House this was the relevant plea.
The tirst formal reason in the
Appellant's case asserts the Respondents'
duty " to exercise
reasonable care not unnecessarily to expose the Appellant
"
to the risk of suffering the injurious results likely to follow an
accident
" to his sound eye having regard to the fact that he
was known by them to
" be a one-eyed man ".
The issue, my Lords, is thus narrowed
down and I will say at once
that I do not dissent from the view
that an employer owes a particular
duty to each of his employees.
His liability in tort arises from his failure
to take reasonable
care in regard to the particular employee and it is
clear that, if
so, all the circumstances relevant to that employee must be
taken
into consideration. I see no valid reason for excluding as
irrelevant
the gravity of the damage which the employee will
suffer if an accident
occurs, and with great respect to the
judgments of the Court of Appeal I
cannot accept the view neatly
summarised by Lord Justice Asquith that
the greater risk of injury
is, but the risk of greater injury is not, a relevant
circumstance.
I find no authority for such a proposition nor does it
appear to
me to be founded on any logical principle.
But, my Lords, the gravity of the
injury is only one of the relevant
circumstances and, while I
cannot accept the judgment of the Court
of Appeal which is based
on the view that it is irrelevant, unlike the
majority of your
Lordships I find it impossible to uphold the judgment
of the
learned trial Judge. For he, I think, ignored a con-
sideration
which was essential to a proper determination of the duty
of the
Respondents to the Appellant. If the gravity of the damage
is
relevant, so also is the seriousness of the risk, and in the
consideration
of this question I think that the learned
Judge fell into error. As I have
already said, it is difficult to
be sure what was in the mind of the learned
Judge, for having
stated (correctly, as 1 think) that the Respondents owed
a duty to
the Appellant individually, not to a class, he added, " in
this
" case the real question is whether the employers in
adopting this system
" and not providing or requiring the use
of goggles for the workers on
" this system were taking
reasonable care to provide a suitable system of
" work and
provide a suitable plant". But he then, without coming to
any
conclusion upon this question, appears to decide in favour of
the
Appellant on the ground of his particular disability, for he
concludes by
saying, " I am satisfied here that there was, so
far as this particular plaintiff
" was concerned, a duty upon
the employers to provide goggles and require
" the use of
goggles as part of their system ". Your Lordships must be
left
in doubt what view the learned Judge held on what he had described
as
the real question, yet it was, if not the real question, a matter of
funda-
mental importance in determining what was the nature of the
risk which
was run by two-eyed and one-eyed men alike. It is a
question which I will
now consider.
My Lords, a study of the evidence
leaves me in no doubt that an employer
could not be held guilty of
negligence if he did not generally provide goggles
for the use of
his employees engaged in this kind of work. Mr. Boden, to
whom 1
have already referred, a witness of wide experience, being asked,
"
Have you seen in work of this kind workmen wearing goggles to do
such
" work? " replied, " Not in my experience. I
have never seen any mechanic
" working in any of the repair
shops that 1 have visited during that 37 years
" wearing
goggles doing that repair work ". A Mr. Reay, having served
his
time in the shops where he had neither himself worn nor seen
others
wearing goggles for such work, set up in business for
himself. He was asked,
" When you were your own employer, did
you wear goggles for such work? "
and he answered " No
". The Appellant himself gave evidence, which,
so far as it
bears upon the obviousness of the risk and corresponding duty,
cannot
be disregarded. I make nothing of the fact that he did not com-
plain
that goggles were not provided, for he might well hesitate to do
so.
But, being asked " Have you considered as to whether it
was dangerous to
" do this sort of job without eye
protection? ", he answered, " Well we were
" always
working through years just doing the same thing. It became
"
natural to get in there without protection ". Then he was asked,
" You
3
" did not think about it?",
and answered, " We had been doing it for
" years and
never thought of it". It is true that he added that if
goggles
had been provided and he had been told to use them, he
would have done so.
But this does not appear to carry the matter
any further. For the Appellant,
a Captain Paterson said, in answer
to the learned Judge, that in the whole
of his experience he had
about a dozen times seen a man wearing goggles
when he was using a
hammer to knock a rusted bolt in dismantling a car.
adding that
that would be when working under a vehicle. It is not clear
whether
on these occasions the man was wearing goggles for fear of a
splinter
of metal piercing his eye or of grit or dirt falling into it.
Mr.
Parker, at the relevant time the mechanical superintendent of
the Respondents'
Cleansing Department, while asserting that it was
not normal practice
to wear goggles for the work in question, said
he had seen men, who were
working underneath a vehicle, wearing
goggles. That was " preferably if they
" were laying on
their backs". Of the single instance that he could
distinctly
remember he assumed that the man was doing it to prevent dust
getting
in his eyes.
The evidence in regard to practice
appears to me overwhelming. But
however unlikely such an event may
be in such an organised community
as ours is today, it is possible
that the practice, however widespread, is carried
on in disregard
of risks that are obvious. Let me then examine this
aspect of the
evidence. There was undisputed evidence that, when a piece
of
steel and particularly of steel corroded with rust is struck with
a
steel hammer, chips or splinters of steel may fly off. It could
hardly be
otherwise. But the question is what is the risk. Captain
Paterson, whom I
have already mentioned, deposed to having had
personal knowledge of
about half-a-dozen eye injuries in the
course of 32 years' experience, the
first of them having taken
place some six or seven years before. A Mr.
Seeley, a fellow
employee of the Appellant, had a somewhat similar accident,
though
for him happily the consequences were trivial, at a date which
could
not be fixed whether before or after the Appellant's
accident. There is
no reason to suppose that the Respondents knew
or ought to have known
of Captain Paterson's experiences and there
was nothing else.
Upon this evidence, my Lords, no other conclusion can be
reached than
that the Respondents were not under a duty to provide
goggles for their
workmen engaged on this work, at least if they
were two-eyed men, and
the reason why they were under no such duty
was because the risk was
not one against which a reasonable
employer was bound to take precautions.
It was from this premise
that the enquiry should proceed, whether, neverthe-
less, in the
case of a one-eyed man they were bound to do so. This
clearly must
depend on whether it should be manifest to the reasonable
employer
that in the case of a one-eyed workman the possible damage
in the
event of accident was so much graver than in the case of a
two-eyed
workman that in the former case he ought to take
precautions though
in the latter case he need not. I see no
justification for such a conclusion.
A two-eyed man might, if a
splinter struck him in the eye, suffer an
injury which in any
scale would be considered very grave. He might
even suffer injury
in both eyes either by immediate damage to both or
by the
infection of one from the other. The eye which was left to him
might
have perfect vision or might be defective in a degree varying
from
the slightest imperfection to almost total blindness. But
however grave,
even calamitous, the damage that he suffered by the
loss of one eye, the
two-eyed man would have no remedy. The
question therefore is not of a
contrast between damage in the case
of one man trivial and in the case
of another very grave, but
rather of an accident so serious in its con-
sequence to any man,
whether one-eyed or two-eyed, that, if the risk of
it was
appreciable, it would be the clear duty of the employer to
provide
and enforce the use of proper precautions against it. Yet
the risk was not
guarded against, for it was regarded, and rightly
regarded, as a risk which
could reasonably be run. And this was so
whatever the posture which
the workman assumed in doing his job.
Risk cannot be assessed in terms
of scientific accuracy ; one
speaks of " conceivable " danger and " probable
"
10961 A 2
danger and the boundaries are
blurred; one must, I concede, have regard
to the degree of injury
that an accident may cause, a difficult task enough.
Taking these
things into consideration and starting, as the learned Judge
did
not, from the fact that, to use the familiar though inapt phrase, it
was
not part of the system of work to provide goggles for two-eyed
men because
the degree of risk did not demand that precaution in a
reasonable employer,
I do not think there was evidence upon which
it could fairly be held
that the same reasonable employer was
bound at his peril to provide
goggles for one-eyed men. For these
reasons I would dismiss this appeal.
But as the majority of your Lordships
are in favour of allowing the appeal,
the Judgment of Lynskey J.
upon liability must be restored and it will remain
for the Court
of Appeal to deal with the Appellant's appeal upon the
quantum of
damages.
Lord Normand
MY LORDS,
This appeal involves a question of
general importance affecting the
Common Law duty which an employer
owes to his employee. It is this.
A workman is suffering, to the
employer's knowledge, from a disability which,
though it does not
increase the risk of an accident's occurring while he is at
work,
does increase the risk of serious injury if an accident should
befall
him ; is the special risk of injury a relevant
consideration in determining the
precautions which the employer
should take in fulfilment of the duty of care
which he owes to the
workman?
The Appellant, when he entered the
respondents' service in 1942, suffered
from a permanent defect of
the vision of his left eye which made him virtually
a one-eyed
man. In July, 1946. he was examined, at the instance of
the
Respondents, by their medical officer. The purpose of the
examination
was to determine whether he was fit to be enrolled in
the Respondents'
permanent staff. The examining doctor, on 22nd
July, 1946, reported the
defect of the Appellant's left eye to the
head of the department in which
the Appellant was employed. The
Respondents must, therefore, be held
to have known of the defect
from that date. From 1942 till the accident the
Appellant worked
as a fitter's mate in the garage of the Respondents' clean-
ing
department on the maintenance and repair of vehicles. On the 28th
May,
1947, a large vehicle, used for cleaning sewers and gulleys,
was brought
into the garage to be stripped for examination. It was
placed upon a plat-
form let into a pit in the floor from which it
was raised, after the vehicle
had been placed upon it, to a height
of about four to five feet above the
floor level. When the
platform was in this position the Appellant set to
work to strip
the vehicle. To do this it was necessary for him to stand
with his
eyes level with or slightly below the part at which he was
working.
He first removed the nuts from the U-bolt which held the
springs in place
and cleared away the dirt from the U-bolt itself.
He then used an ordinary
hammer to knock out the rusty bolts.
While he was doing this a fragment
of metal was broken off and
lodged in his right eye, which is in consequence
now completely
blind. The work which the Appellant was doing on this
occasion was
similar to the work that he had been doing for the previous
five
years.
The Appellant's case is that for this
sort of work the Respondents ought
to have supplied him with
goggles to protect his eyes. The Respondents sup-
plied goggles
with tinted glasses to protect the eyes of welders against
exces-
sive light and they supplied goggles for men working on
grinding machines.
But they supplied no goggles for men employed
on the maintenance and
repair of vehicles. There was evidence from
each side on the question
whether it was usual for employers to
supply goggles to men employed in
5
garages on that sort of work. The
weight of the evidence is decidedly
against the Appellant on that
point. On the other hand there is proof
that individual men
working under a vehicle in the Respondents' garage
did
occasionally take a pair of goggles from a cupboard in the garage
and
wear them to protect the eyes, and that it was known to the
Respondents'
responsible officials that dirt did sometimes get
into the men's eyes and also
that when bolts were removed pieces
of metal might sometimes fly. Thus,
according to the public
cleansing officer, it was a common occurrence that
men got dirt
into their eyes, and one such accident is proved by the victim
but
it is not clear whether it took place before or after the accident to
the
Appellant. The Appellant depones that dirt and grit fell on to
his face and
into his hair when he was working under the vehicles,
but he never com-
plained about this, and never thought of the
danger to his eyes.
Lynskey, J. in his judgment made no
reference to the evidence of the
practice followed by other
employers nor did he hold that the Respondents
ought to have
supplied goggles to all the workers engaged on the same sort of
work
as the Appellant. After mentioning the risk of pieces of metal
flying
out, and the position in which the men had to work with
their eyes on a
level with or below the part of the vehicle at
which they were working (matters
which apply to all the workmen),
he emphasized the importance of the
Appellant's having, to the
Respondent's knowledge, only one useful eye.
His conclusion is: "
The result is, in my view, in this case on the evidence,
"...
that I am satisfied here that there was, so far as this particular
"
plaintiff was concerned, a duty upon the employers to provide goggles
and
" require the use of goggles as part of their system."
" In the Court of Appeal the
learned Lord Chief Justice said: " The way
" that the
learned judge has decided the case, and the ground upon which Mr.
"
Beney has endeavoured to uphold the judgment, is that because this
man
" had one eye only, a greater duty was owed to him than
was owed to
" other persons because the consequences of an
accident would be so much
" more serious." If 1 may
respectfully say so. 1 think that the learned Lord
Chief Justice
correctly interpreted the judgment.
The Court of Appeal reversed the
judgment for reasons which are very
clearly stated by Asquith,
L.J. " The disability can only be relevant to the
"
stringency of the duty owed to the Plaintiff if it increases the risk
to which
" the Plaintiff is exposed. A one-eyed man is no
more likely to get a splinter
" or a chip in his eye than is
a two-eyed man. The risk is no greater, but
" the damage is
greater to a man using his only good eye than to a man
"
using two good eyes; but the quantum of damage is one thing and the
"
scope of duty is another. The greater risk of injury is not the same
thing as
" the risk of greater injury, and the first thing
seems to me to be relevant
" here".
Whether that is a correct view is of
considerable importance, for the
ratio of the judgment will
apply not only where the duty of care arises from
the relationship
of master and servant but in many other cases of alleged
negligence.
It is not disputed that the Respondents' duty of care is
a duty owed to their
employees as individuals. But the Respondents
contend that, though it is
not a duty owed to the employees
collectively, they must take account
in fulfilling the duty only
of any disability that increases the risk of
an accident's
occurring. For that proposition no authority was cited and
in my
opinion it is contrary to principle. The test is what
precautions
would the ordinary reasonable and prudent man take.
The relevant
considerations include all those facts which could
affect the conduct of a
reasonable and prudent man and his
decision upon the precautions to be
taken. Would a reasonable and
prudent man be influenced, not only by
the greater or less
probability of an accident occurring but also by the
gravity of
the consequences if an accident does occur? In Mackintosh
v.
Mackintosh (1864) 2. M. 1357 Lord Neaves,
considering a case of alleged
negligence in muir burning, said: "
It must be observed that in all cases the
" amount of care
which a prudent man will take must vary infinitely accord-
6
" ing to circumstances. No
prudent man in carrying a lighted candle through
"a powder
magazine would fail to take more care than if he was going
"
through a damp cellar. The amount of care will be proportionate to
the
"degree of risk run and to the magnitude of the mischief
that may be
" occasioned ". In Northwestern Utilities
Limited v. London Guarantee
& Accident Company Limited
[1936] AC 108 at 126 Lord Wright, dealing
with the risk of
grave damage which may be caused by gas escaping from
a main,
said: " The degree of care which that duty involves must be
propor-
" tioned to the degree of risk involved if the duty
should not be fulfilled ".
The learned editor of "
Salmond on Torts " (Tenth Edn. p. 438 f.n.) similarly
says: "
There are two factors in determining the magnitude of a risk, the
"
seriousness of the injury risked, and the likelihood of the injury
being in
fact caused ". These are, in my opinion, accurate
statements both of the
law and of the ordinary man's conduct in
taking precautions for his own
safety. " No reasonable man
handles a stick of dynamite and a walking-stick
" in the same
way " (Winfield on Tort 4th Edn. 407).
The Court's task of deciding what
precautions a reasonable and prudent
man would take in the
circumstances of a particular case may not be easy.
Nevertheless
the judgment of the reasonable and prudent man should be
allowed
its common every day scope, and it should not be restrained from
con-
sidering the foreseeable consequences of an accident and
their seriousness for
the person to whom the duty of care is owed.
Such a restriction, if it might
sometimes simplify the task of the
judge or jury, would be an undue and
artificial simplification of
the problem to be solved. If the Courts were
now to take the
narrow view proposed by the Respondents the cleavage
between the
legal conception of the precautions which a reasonable and
prudent
man would take, and the precautions which reasonable and prudent
men
do in fact take would lessen the respect which the administration
of
justice ought to command. To guard against possible
misunderstanding it
may be well to add here that the seriousness
of the injury or damage risked
and the likelihood of its being in
fact caused may not be the only relevant
factors. For example,
Asquith, L.J. in Daborn v. Bath Tramways Motor
Co. Ltd.
[1946] 2 A.E.R.333 pointed out that it is sometimes necessary
to
take account of the consequence of not assuming a risk.
1 am unable, therefore, to reject the
conclusion arrived at by Lynskey, J.
on the ground upon which the
Court of Appeal proceeded. But that does
not end the appeal. For
there remains the question whether, assuming
that the fact that
the Appellant was to the knowledge of the Respondents
a one-eyed
man was a relevant circumstance, the judgment of Lynskey,
J. was
in accordance with the evidence. The kind of evidence necessary
to
establish neglect of a proper precaution was considered in Morton
v.
William Dixon Lid. [1909] SC 807 by Lord President
Dunedin as he then was
That was an action by a miner against his
employers alleging negligence in
failing to take precautions
against the fall of coal from the top of the shaft
into the space
between the side of the shaft and the edge of the cage. It
was, of
course, a Scotch case, but in my opinion there is no difference
between
the law of Scotland and the law of England on this point.
The Lord
President said: " Where the negligence of the
employer consists of what I
" may call a fault of omission, 1
think it is absolutely necessary that the
" proof of that
fault of omission should be one of two kinds, either to show
"
that the thing which he did not do was a thing which was commonly
done
" by other persons in like circumstances, or to show
that it was a thing
" which was so obviously wanted that it
would be folly in anyone to neglect
" to provide it."
The rule is stated with all the Lord President's trenchant
lucidity.
It contains an emphatic warning against a facile finding that
a
precaution is necessary when there is no proof that it is one
taken by other
persons in like circumstances. But it does not
detract from the test of the
conduct and judgment of the
reasonable and prudent man. If there is
proof that a precaution is
usually observed by other persons, a reasonable
and prudent man
will follow the usual practice in the like circumstances.
Failing
such proof the test is whether the precaution is one which the
reason-
able and prudent man would think so obvious that it was
folly to omit it.
7
In the present case, as I have
already said, the balance of the evidence
inclines heavily against
the Appellant on the question of the usual practice
of others. But
that evidence necessarily dealt with the normal case when
the
employee suffers from no special disablement. In the nature of
things
there could scarcely be proof of what was the usual
precaution taken by
other employers if the workmen had but one
good eye. Since Lynskey, J.
did not deal with the evidence on
practice and made no finding about the
precautions which should be
taken in the ordinary case and without reference
to individual
disability, I think that his judgment is essentially a finding
that
the supply of goggles was obviously necessary when, a
one-eyed man was
put to the kind of work to which the Appellant
was put.
The facts on which the learned judge
founded his conclusion, the known
risk of metal flying when this
sort of work was being done, the position of
the workman with his
eyes close to the bolt he was hammering and on the
same level with
it or below it, and the disastrous consequences if a particle
of
metal flew into his one good eye, taken in isolation, seem to me to
justify
his conclusion. But even for a two-eyed man the risk of
losing one eye is
a very grievous risk, not to speak of the
foreseeable possibility that both
eyes might be simultaneously
destroyed, or that the loss of one eye might
have as a sequel the
destruction of vision in the other. It may be said that,
if it is
obvious that goggles should have been supplied to a one-eyed
work-
man, it is scarcely less obvious that they should have been
supplied to all
the workmen, and therefore that the judgment rests
on an unreal or insuffi-
cient distinction between the gravity of
the risk run by a one-eyed man and
the gravity of the risk run by
a two-eyed man. I recognize that the argument
has some force but I
do not assent to it. Blindness is so great a calamity
that even
the loss of one of two good eyes is not comparable; and the
risk
of blindness from sparks of metal is greater for a one-eyed man
than
for a two-eyed man, for it is less likely that both eyes
should be damaged
than that one eye should, and the loss of one
eye is not necessarily or even
usually followed by blindness in
the other.
What precautions were needed to protect two-eyed men,
and whether it
could properly be held, in the teeth of the
evidence of the usual practice,
that goggles should have been
supplied for them were not questions which
the learned judge had
necessarily to decide. Therefore though there might
have been
advantages of lucidity and cogency if the precautions needed for
the
protection of the two-eyed men had first been considered and the
increased
risk of damage to which the one-eyed man is exposed had
been expressly
contrasted, I would allow the appeal and restore
the judgment of Lynskey, J.
Lord Oaksey
MY LORDS,
I agree entirely with the opinion
just delivered by my noble and learned
friend Lord Normand.
The duty of an employer towards his
servant is to take reasonable care
for the servant's safety in all
the circumstances of the case. The fact that
the servant has only
one eye if that fact is known to the employer and that
if he loses
it he will be blind is one of the circumstances which must
be
considered by the employer in determining what precautions if
any shall
be taken for the servant's safety. The standard of care
which the law
demands is the care which an ordinarily prudent
employer would take in
all the circumstances. As the circumstances
may vary infinitely it is often
impossible to adduce evidence of
what care an ordinarily prudent employer
would take. In some
cases, of course, it is possible to prove that it is the
ordinary
practice for employers to take or not to take a certain
precaution,
but in such a case as the present, where a one-eyed
man has been injured,
it is unlikely that such evidence can be
adduced. The Court has, therefore,
8
to form its own opinion of what
precautions the notional ordinarily prudent
employer would take.
In the present case the question is whether an
ordinarily prudent
employer would supply goggles to a one-eyed workman
whose job was
to knock bolts out of a chassis with a steel hammer while the
chassis
was elevated on a ramp so that the workman's eye was close to
and
under the bolt. In my opinion Mr. Justice Lynskey was entitled,
to
hold that an ordinarily prudent employer would take that
precaution. The
question was not whether the precaution ought to
have been taken with
ordinary two-eyed workmen and it was not
necessary, in my opinion, that
Mr. Justice Lynskey should decide
that question—nor did he purport to
decide it, although it
is true that at p. 52 (1) he stated the question in one
sentence
too broadly.
The risk of splinters of steel breaking off a bolt and
injuring a workman's
eye or eyes may be and I think is slight and
it is true that the damage to
a two-eyed workman if struck by a
splinter in the eye or eyes may be
serious, but it is for the
Judge at the trial to weigh up the risk of injury
and the extent
of the damage and to decide whether, in all the
circumstances,
including the fact that the workman was known to be
one-eyed and might
become a blind man if his eye was struck, an
ordinarily prudent employer
would supply such a workman with
goggles. It is a simple and inexpensive
precaution to take to
supply goggles, and a one-eyed man would not be
likely, as a
two-eyed man might be, to refuse to wear the goggles. Mr.
Justice
Lynskey appears to me to have weighed the extent of the risk and
of
the damage to a one-eyed man and I am of opinion that his
judgment
should be restored.
Lord Morton of Henryton
MY LORDS,
It cannot be doubted that there are
occupations in which the possibility
of an accident occurring to
any workman is extremely remote, while there
are other occupations
in which there is constant risk of accident to the
workmen.
Similarly, there are occupations in which, if an accident occurs,
it
is likely to be of a trivial nature, while there are other
occupations in
which, if an accident occurs, the results to the
workman may well be fatal.
Whether one is considering the
likelihood of an accident occurring, or the
gravity of the
consequences if an accident happens, there is in each case
a
gradually ascending scale between the two extremes which I have
already
mentioned.
In considering generally the
precautions which an employer ought to take
for the protection of
his workmen it must, in my view, be right to take into
account
both elements, the likelihood of an accident happening and
the
gravity of the consequences. I take as an example two
occupations in which
the risk of an accident taking place is
exactly equal; if an accident does
occur in the one occupation,
the consequences to the workman will be com-
paratively trivial;
if an accident occurs in the other occupation the conse-
quences
to the workman will be death or mutilation. Can it be said that
the
precautions which it is the duty of an employer to take for the
safety
of his workmen are exactly the same in each of these
occupations? My
Lords, that is not my view. I think that the more
serious the damage which
will happen if an accident occurs, the
more thorough are the precautions
which an employer must take.
If 1 am right as to this general
principle, I think it follows logically that
if A and B, who are
engaged on the same work, run precisely the same risk
of an
accident happening, but if the results of an accident will be
more
serious to A than to B, precautions which are adequate in the
case of B
may not be adequate in the case of A, and it is a duty
of the employer to
take such additional precautions for the safety
of A as may be reasonable.
The duty to take reasonable precautions
against injury is one which is owed
by the employer to every
individual workman.
9
In the present case it is submitted
by counsel for the appellant that
although the appellant ran no
greater risk of injury than the other workmen
engaged in the
maintenance work, he ran a risk of greater injury. Counsel
points
out that an accident to one eye might transform the appellant into
a
blind man, and this event in fact happened. A similar accident to
one
of his comrades would transform that comrade into a one-eyed
man, a
serious consequence indeed but not so serious as the
results have been to
the appellant
My Lords, the Court of Appeal thought
that the one-eyed condition of
the appellant, known to his
employers, was wholly irrelevant in determining
the question
whether the employer did or did not take reasonable precau-
tions
to avoid an accident of this kind. I do not agree. Applying
the
general principle which I have endeavoured to state, I agree
with your
Lordships and with Lynskey J. that the condition of the
appellant was a
relevant fact to be taken into account.
There still remains, however, the
question whether the learned Judge
rightly came to the conclusion
that there was " so far as this particular
" plaintiff
was concerned, a duty upon the employers to provide goggles and
"
require the use of goggles as part of their system ". He
thought, as I
read his judgment, and as the Court of Appeal read
it, that there was no
duty upon the employers to provide goggles
for two-eyed men who were
employed on the same work as the
appellant. With this latter view the
Court of Appeal agreed, and I
take the same view. The evidence given
at the trial has already
been analysed by my noble and learned friend on
the Woolsack, and
I shall only add that, although Captain Paterson had
knowledge of
about half-a-dozen eye injuries in the course of 32
years'
experience, he did not say whether any of them was of a
serious nature.
The only other eye injury deposed to was that of
Mr. Seeley. He was asked
by the learned Judge " Were you off
work at all with your eye? ", and he
answered " Oh no ".
" Just that something got into your eye? " said the
learned
Judge. " Yes, and I got it out" replied the witness.
My Lords, is it really possible to
draw a distinction, on the facts of the
present case, between a
two-eyed man and a one-eyed man? If the
employers were not
negligent in failing to provide goggles for two-eyed men
doing
this work, during all the years prior to this accident, did they
become
negligent, so far as regards the appellant alone, as from
the 22nd July, 1946,
when Mr. Boden, their Public Cleansing
Officer, became aware for the
first time that the appellant had
practically no vision in his left eye? The
loss of an eye is a
most serious injury to any man, and I can only see two
alternatives
in this case; (a) That the employers were negligent
throughout
in failing to provide goggles and insist on their use
by all men employed in
this type of work or (b) That the
risk of an eye injury to any man was so
remote that no employer
could be found negligent in failing to take these
precautions.
My Lords, I think the first
alternative must be rejected. Applying the
test laid down by Lord
Dunedin in Morton v. William Dixon Ltd. [19091]
S.C.
807, already quoted by my noble and learned friend Lord Normand,
I
cannot find that the provision of goggles " was a thing
which was commonly
" done by other persons in like
circumstances ". The evidence is conclusive
to the contrary.
Nor does the evidence support the view that it was " a thing
"
which was so obviously wanted that it would be folly in anyone to
neglect
" to provide it." Although I recognise that the
one-eyed condition of the
appellant was a factor to be taken into
account, I think alternative (6) is
correct. I cannot reach the
conclusion that a one-eyed man, but not a
two-eyed man, has a
remedy against the employer for so serious an injury.
I think it
must be both or neither, and on the facts of the present case I
agree
with the conclusion of the Court of Appeal, that the evidence
does
not establish any negligence on the part of the respondent..
I would dismiss the appeal.
10
Lord MacDermott
MY LORDS,
The Appellant entered the service of
the Respondents in 1942 as a fitter's
mate or garage hand. He was
then, in consequence of injuries received in an
air raid, so blind
in his left eye as to be a one-eyed man for all practical
purposes.
He was employed in the garage of the Respondents'
cleansing
department and one of his duties was to assist in the
dismantling of motor
vehicles. On occasion this task, according to
the usual practice of the garage,
involved the use of a steel
hammer to remove rusted parts such as bolts.
There was a risk of
chips of metal flying about when this procedure was
followed, but
the workmen engaged upon it were not supplied with or re-
quired
to use goggles or any other form of eye protection. On the 22nd
June.
1946, the Appellant was medically examined on behalf of the
Respondents
with a view to his becoming a member of the permanent
staff and joining its
superannuation scheme. This examination
revealed the state of his left eye
and. a further consequence of
the Appellant's war injuries, limited flexion and
loss of power at
the right elbow. From that date, if not earlier, the Re-
spondents
must be taken to have been aware of the defect in the
Appellant's
eye-sight. As a result of the report made by their
medical officer the
Appellant was not accepted as a member of the
permanent staff or allowed
to join the superannuation scheme, but
no further action appears to have
been taken on foot of the report
until the 16th May, 1947 when the Appellant
received notice
terminating his employment on the 30th May, 1947. It is,
I think,
clear from the evidence that this notice was a consequence of
the
medical examination, but whether it would have been given had
the
Appellant's left eye not been injured is not made plain. On
the 28th May,
two days before the expiry of the notice, the
Appellant was employed dis-
mantling the chassis of what is known
as a gulley cleaner. This vehicle had
been raised on a ramp and
the Appellant was working underneath it when the
accident, out of
which this litigation arises, took place. The Appellant, in
an
endeavour to remove a rusty U-bolt securing one of the rear
springs, was
striking it with a steel hammer when a piece of metal
flew off and entered
his good, right eye, destroying the sight of
it completely and making him
almost entirely blind. It should be
added that there was nothing in the
evidence to suggest that the
Appellant's previous disabilities increased in any
way the chances
of an accident, such as that described, occurring.
The Appellant's action for damages in
respect of the injury thus sustained
alleged negligence and breach
of statutory duty on the part of the Respondents.
The latter cause
of action was abandoned at an early stage and the negligence
relied
upon was, to state the substance of the allegation, that the
Respondents
had tailed in their duty to the Appellant in that he
had not been provided
with and required to use suitable goggles
for the protection of his eyes during
the work to which I have
referred. At the trial Lynskey, J. found for the
Appellant. He
held that the Respondents, knowing that the Appellant had
.only
one useful eye, were, in the circumstances, under a duty to him
to
provide and require the use of goggles, and that they had
failed in that duty.
The Court of Appeal took a different view and
ordered judgment to be entered
for the Respondents. This decision
appears to have been based on two con-
clusions—first, that
on the evidence there was no duty upon the Respondents
to provide
goggles for the ordinary, two-eyed workman engaged upon this
work
; and, secondly, that there was therefore no such duty upon the
Re-
spondents in respect of the Appellant because, though the
consequences for
him were more serious, the risk of the accident
occurring was no greater in
his case than it was in the case of
his two-eyed fellows.
The proposition underlying this
second conclusion is succinctly stated by
Asquith, L.J. in a
passage which, I believe, represented the unanimous opinion
of the
Court. It reads as follows: " The disability can only be
relevant to the
" stringency of the duty owed to the
Plaintiff if it increases the risk to which
" the Plaintiff
is exposed. A one-eyed man is no more likely to get a splinter
"
or a chip in his eye than is a two-eyed man. The risk is no greater,
but the
11
" damage is greater to a man
using his only good eye than to a man using
" two good eyes;
but the quantum of damage is one thing and the scope of
"
duty is another. The greater risk of injury is not the same thing as
the risk
" of greater injury, and the first thing seems to me
to be relevant here."
This view of the law raises a
question of far-reaching importance for, if
sound, it must, in my
opinion, pervade, if not the whole domain of negligence,
at least
a very large part of it. It was, however, stated only in connection
with
the duty of care imposed upon an employer of labour and it
will be sufficient
for present purposes to consider it in relation
to that particular branch of the
law and without engaging upon the
wider question of its compatibility with the
concept of reasonable
care.
My Lords, the general nature of the
obligation resting upon an employer
regarding the safety of those
who work for him under a contract of service is
not in dispute. It
is, in the words of Lord Wright in Wilsons and Clyde Coal
Co.
Ltd. v. English (19381 A.C. 57 at 84, " to take reasonable
care for the
" safety of his workmen ". In Smith v.
Baker & Sons [11891] A.C. 325 at 362,
Lord Herschell
described the same duty somewhat more fully but without any
material
difference when he said: " It is quite clear that the contract
between
" employer and employed involves on the part of the
former the duty of taking
" reasonable care to provide proper
appliances, and to maintain them in a
" proper condition, and
so to carry on his operations as not to subject those
"
employed by him to unnecessary risk." It is no less clear that
the duty is
owed to the workman as an individual and that it must
be considered in rela-
tion to the facts of each particular case.
Now if the law is as stated by the
Court of Appeal it means that this duty of
reasonable care can be
discharged without regard to the gravity of the harm
which is
likely to fall upon the workman concerned. Reasonable care is,
in-
deed, to be taken in respect of risk that may cause injury ;
but the requisite
degree of care is determinable irrespective of
the likely consequences for the
particular workman. In short,
where the risk of an injury-producing event is
the same for all,
the standard of reasonable care is the same towards all, and
the
foreseeable extent of the resulting injury in any given case
becomes
irrelevant to the issue of liability.
My Lords, this doctrine finds no
support in authority and is. in my opinion,
entirely alien to the
character of the relationship to which it has been applied
by the
Court of Appeal. For workman and employer alike such expressions as
"
risk ", " danger " and " safety " would lose
much of their everyday meaning
if divorced from the results to
life and limb. In this sphere they must surely,
in the very nature
of things, connote consequences as well as causes. If a
bricklayer
says that the risk is greater at the top of a building he means
that
a slip there is more likely to bring him death or injury, and
if he says that a
particular form of scaffolding is dangerous or
not safe he means not merely
that it may fall, but that those who
use it may get hurt. What may happen
to those engaged is no less
important than how it may happen. It is the con-
sequences that
necessitate the precautions in this field. The habitual associa-
tion
of cause and effect in workshop and factory is perhaps nowhere
more
clearly recognised than in the nature of some of the
safeguards in common
use. Suitable goggles, for example, must be
worn by those employed at grind-
ing machines. The particles that
fly upward may strike the cheeks as readily
as the eyes, but the
eyes are protected and the cheeks are not because the
eyes are
delicate organs and the consequences of their being struck are
likely
to be serious. Again, special precautions to prevent
electric leakage are the
usual practice in places like wash-houses
where those working are well
" earthed " and a shock
might prove fatal. Instances of this sort could be
multiplied, but
I think it is enough to say that the employer's duty to
take
reasonable care for the safety of his workmen is
directed—and, I venture 10
add, obviously directed—to
their welfare and for that reason, if for no other,
must be
related to both the risk and the degree of the injury. If that is
so
and if, as was very properly conceded, the duty is that owed to
the individual
and not to a class, it seems to me to follow that
the known circumstance that
12
a particular workman is likely to
suffer a graver injury than his fellows from
the happening of a
given event is one which must be taken into consideration
in
assessing the nature of the employer's obligation to that workman.
For these reasons I am of opinion
that the Court of Appeal was wrong and
that Lynskey, J. was right
regarding the relevance of the Respondents' know-
ledge of the
Appellant's eye defect. It remains to consider whether the
learned
trial Judge's finding of negligence is justified on the
evidence. As I read his
judgment he did not find that the
Respondents were under a duty to provide
goggles for other workmen
engaged on the same work who had, or might be
taken as having, the
use of both eyes. Whether the evidence would have
warranted
such a finding is, I think, a question of some difficulty. On the
one
hand, the whole trend of the testimony indicates that it was
not the general
practice in garages and establishments of the kind
to provide protection for the
eyes in such circumstances. On
the other, it is clear that the wearing of
goggles would not have
hampered the work in question and there is, I think,
material from
which it might reasonably be inferred that, for men
working
underneath these vehicles and in close proximity to the
parts they were
stripping, the provision of suitable goggles would
have been a sensible and
obvious way of keeping falling dirt and
flying particles out of their eyes. I
incline to the view that a
jury weighing these considerations would not be
perverse in
finding that it was the duty of the employers to make such
pro-
vision. The .point, however, is a balanced one and I will
proceed on the
assumption that the Court of Appeal was right on
this aspect of the case and
that the Respondents were not under
any general obligation of this kind. So
assuming, the question
then arises whether the additional element, the fact
that the
Respondents knew that the Appellant was a one-eyed man, made
it
proper to arrive at a different conclusion regarding their duty
to him. In my
opinion it did. Not merely was the risk of this
sort of accident occurring to
those engaged upon this work known;
it was also known that that risk was
fraught with much graver
consequence for the Appellant than for his two-
eyed companions.
His chances of being blinded were appreciably greater and
blindness
is an affliction in a class by itself which reasonable men will
want
to keep from those who work for them if there are reasonable
precautions
which can be taken to that end. To my mind whatever
may be said of the
Respondents' duty to their two-eyed employees,
there was ample evidence
to sustain the view that they failed in
their duty to the Appellant. I would
allow the appeal and
restore the finding as to liability of the learned Judge.
(1096lr) Wt.
8109—108 35 1/5 D.L./PA/19