BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?

No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!



BAILII [Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]

United Kingdom House of Lords Decisions


You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Paris v Stepney BC [1950] UKHL 3 (13 December 1950)
URL: http://www.bailii.org/uk/cases/UKHL/1950/3.html
Cite as: [1950] UKHL 3, [1951] AC 367

[New search] [Buy ICLR report: [1951] AC 367] [Help]


JISCBAILII_CASE_TORT

    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


BAILII:
Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII
URL: http://www.bailii.org/uk/cases/UKHL/1950/3.html