Paris v Stepney Borough Council

Paris v Stepney Borough Council (1950) BC [1951] HL

Tort, negligence, duty of care, reasonableness of precautions, special duty of care.

Facts

A Local Authority employed Mr Paris as a garage mechanic. Mr Paris had lost the sight of one eye during the war. In order to loosen a stiff bolt he struck it with a hammer; a piece of metal flew off and (because he was not wearing goggles) struck him in his good eye, causing him to become totally blind. After the accident, Mr Paris successfully claimed damages for his injury but this was overturned on appeal. Mr Paris then appealed to the House of Lords.


The Decision

The probability of such an event was very small, but its consequences were very serious, his employers, knowing of his disability, should have taken extra care to provide goggles for him. The more serious the possible damage, the greater the precautions that should be taken. Stepney Borough Council owed a special duty of care to P and had been negligent in failing to supply him with goggles, even though sufficient equipment was not given to other employees.


Held, Mr Paris won


Note

Mr Paris worked in the Borough Council's trucks maintenance garage. He had been blinded in one eye during the war but had successfully managed to conceal this from his employers until he was examined by a doctor for the purposes of the Council's superannuation scheme. When it came to light that he was blind in one eye he was given two weeks notice of dismissal. The accident happened two days before he was due to leave.

Its worth remembering this is 1950's in terms of employment law

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Schwalb v. Fass & Son - Practicable

Where a statutory duty or obligation is qualified soley by the word 'practicable' this implies a higher level of duty than one qualified by 'reasonably practicable'. 'Practicable' means something other than physically possible, it means that the measures must be possible in the light of curent knowledge and invention

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Adsett v K & L Steel Founders and Engineers Ltd

Adsett v K & L Steel Founders and Engineers Ltd [1953] 1 All ER 97

"Practicable" : stricter standard

Facts

In the this case, the employer argued that the extractor had been installed as soon as it had been thought of. The Court of Appeal held that the employer could not be held liable, as for a measure to be "practicable" meant that it had to be known about, especially by experts, so that it could be applied by people in the industry.

Notes

1.This case refers to duties placed on employers relating to "dust and fumes". The decision refers to the standard of "practicability" which it claims is that of "current knowledge and invention". Once something is found to be practicable, as in ventilation systems, it is feasible. It must then be done no matter how expensive or inconvenient. However, this also means that an employer cannot be liable for failing to use a safety device which was not invented at the time of the accident but appeared subsequent to it.

2.Where safety measures are qualified by the expression "practicable" this denotes a stricter standard than "reasonably practicable". It means "possible to be accomplished with known means or resources" or "feasible". Cost is probably not a factor to consider but no measure can be "practicable" if, at the time the employers' conduct is called into question, the measure is not known to science or if a known measure has not been thought of in connection with an existing
process.

Statute Factories Act 1937, s.47; then FA 1961, s.63

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Uddin v Associated Portland Cement Manufacturers Ltd

Uddin v. Associated Portland Cement Mfrs. Ltd., [1965] 2 All E.R. 213

Contributory negligence; employee in unauthorised place

Facts

Uddin was employed in a cement factory run by APC Ltd. He went to a part of the factory where he was not authorised to be in order to catch a pigeon. Uddin climbed up to a position where there was unfenced machinery. As a result he became entangled with a revolving shaft and lost an arm.
Uddin brought an action for damages against his employer, alleging that the shaft was a dangerous part of machinery that should be fenced in accordance with the requirements of s14 (1) Factories Act 1937


The Decision

It made no difference that Uddin was in a part of the factory where he was not supposed to be or that he was doing something that had nothing to do with his work. It was enough that he was an employee that had suffered injury through a breach of statutory duty. It was therefore held that the defendants were in breach of their statutory obligations and that the plaintiff, who at the time of the injury was performing an act wholly outside the scope of his employment, for his own benefit and at a place to which he was not authorised to go, was not totally debarred from recovering damages. Responsibility was therefore apportioned on the basis of 20% to the defendants and 80% to the plaintiff.

Note

The case offers guidance on "safe by position" under the Factories Act and "of such construction". The Court held that it should be foreseeable, when deciding to rely on safety by position or construction rather than guarding, that a workman may be stupid in his behaviour. The fact that an employee would be acting outside the scope of his employment is not relevant to this matter. In this particular case he was supposedly trying to catch a pigeon. He climbed onto a cabinet, which housed dangerous machinery, and fell in due to it being unguarded. Although he won his action, the compensation awarded was reduced to one fifth due to contributory negligence. Useful in relation to contributory negligence, but otherwise this section of the Factories Act has been replaced by the Provision and Use of Work Equipment Regulations 1998.

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Armour v Skeen (1977) - section 37 of HSWA

This case ivolved section 37 of HSWA in terms of duties of directors and others.

J Armour v J Skeen (Procurator Fiscal, Glasgow) (1977) IRLR 310

Personal liability of executives : production of written safety policy

Directors, managers and secretaries (i.e. company secretaries) are personally under the duty to ensure that the company's statutory duties are performed. Failure of performance of statutory duties renders these executives open to personal prosecution.

If a safe system of work is not maintained as a result of a manager's neglect to formulate a written safety policy for his department then he is liable to prosecution.

Statute: Health and Safety at Work etc., Act 1974, s.37 (1)

The Facts

A workman fell to his death while repairing a road bridge over the River Clyde. Mr Armour was director of roads for Strathclyde Regional Council and as such the responsibility of supervising the safety of road workers was his. He had not produced a written safety policy for such work, i.e. he had not drawn up a written safe system of work.

The Decision

Mr Armour’s defence was that he was under no personal duty to carry out the Council’s statutory duties, one of which was as described above. This was rejected on the grounds that s.37 (1) of the 1974 Act imposed the personal duty to carry out the Council’s statutory duty to prepare a written safe system of work. This he had failed to do and was therefore guilty of an offence.

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Dewhurst v. Coventry Corportation - due diligence and young workers

A bacon slicer was used by staff. A boy of 16 was employed. The boy had an accident. The company was prosecuted and convicted for a breach of section 18(1) of OSRPA, which requires 'no young person employed to work in a premises ... shall clean any machinery used ... if doins so exposes him to risk of injury from a moving part of that or any adjacent machinery'.

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R v Swan Hunter Shipbuilder - safety instructions to contractors

R v Swan Hunter Shipbuilder and Telemeter Installations Ltd [1982] IRER 403

HSW ACT s2(2)(a) Failure to provide and maintain safe systems of work

HSW ACT s2(2)(c) Provision of information and instruction to its own employees

HSW ACT s3(1) Failure to conduct their undertaking in such a way as to esnure that those not in thier employ were not exposed to risk

An oxygen valve in a badly ventilated part of HMS Glasgow, then under construction, had been left open. The result was that the room had then become oxygen enriched. Swan Hunter were the main contractors but several others were involved. An employee of Telemeter Installations, working alongside Swan Hunter employees was preparing to do some arc welding. He struck the electric arc between welding rod and work piece and immediately, due to the atmosphere, a very intense fire broke out and eight men were killed.

Swan Hunter's safety officer knew of the fire risk connected with oxygen and prepared a 'blue book' for Swan Hunter employees and provided the information to their employees. However, they failed to distribute this information to Telemeter and other contractors and/or the employees of those other contractors. Swan Hunter was prosecuted and fined £3000, they appealed.

The Decision

Conviction was upheld. Swan Hunter had a duty to ensure the health and safety of its own employees by the provision of information. If the ignorance of another company’s employees places its own employees at risk then it is the company’s duty, for the protection of its own employees, to inform the employees of another of any special risks within its knowledge.

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Latimer v. AEC Ltd practicability of precuations

Practicability of precautions and unreasonable precuations

Latimer v. AEC Ltd 1952

The appappelant was a milling machine operator employeb y AEC Ltd. An area of a factory was flooded and the operator had an accident.

Freak Accident
This case deals with the position at common law relating to an "unprecedented, unexpected and freak hazard". Practicability of precautions.

Facts

The plaintiff was employed by the defendant. On the afternoon of the day of the accident, an exceptionally heavy rainstorm had flooded the whole of the defendant's premises. Oil, which normally ran in covered channels in the floor of the building, rose to the surface and when the water drained away, left an oily film on the floor. The defendants took measures to clean away the oil, using all the sawdust available to them. The plaintiff came on duty with the night shift, unaware of the condition of the floor. While endeavouring to place a heavy barrel on a trolley, his foot slipped on the still oily surface, he fell on his back, and the barrel crushed his left ankle. The trial judge found a breach of common law duty. The Court of Appeal reversed this decision.

The Decision

The reasonable employer had to make a decision whether or not to shut the factory down and totally eliminate the risk. The employer took every step that reasonably could have been taken in the circumstances and in so doing had negated any possible allegation of negligence.


A defendant does not have to totally eliminate the risk but must do as much as the reasonable person would do in the circumstances.


This case deals with the position at common law relating to an "unprecedented and freak hazard". Where, for example, a means of access becomes hazardous due to snow or ice, it may not be reasonably practicable to take immediate steps to do something about it and a "temporary" delay may be expected. However, there must be reasonable attempts to deal with the problem. The Court also ruled that the definition of "maintained", used in the Factories Act 1961, was clearly directed to the state of the construction of the floor and not its temporary and unexpected condition or obstructions on its surface. As a result Latimer lost his claim.

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Imperial Chemical Industries v Shatwell

Imperial Chemical Industries v Shatwell [1964] All ER 999

Volenti non fit injuria, [Latin: no wrong is done to one who consents] The defence that the plaintiff consented to the injury or (more usually) to the risk of being injured.

Facts

The plaintiff and his brother were were certificated and experienced shotfirers employed by ICI Ltd in a quarry owned by the defendant company. Part of the brothers' work included wiring up detonators and checking the electrical circuits. There was an old practice where a galvanometer was applied directly to each detonator for testing purposes. This practice was known to be dangerous and was outlawed by statutory regulation. The plaintiff claimed his brother was 50 per cent to blame for the explosion and the employer was vicariously liable. The plaintiff was awarded half of the total amount of damages. The defendant appealed.

The Decision

The plaintiff and his brother were both experts. They freely and voluntarily assumed the risk involved in using the galvanometer. There was no pressure from any other source. To the contrary, they were specifically warned about complying with the new safety regulations.
The defence of volenti non-fit injuria will apply when there is true and free consent to the risk.


Note

The employers were not liable because -

(1) the employers not being themselves in breach of duty, any liability of theirs would be vicarious liability for the fault of J, and to such liability (whether for negligence or for breach of statutory duty) the principle volenti non fit injuria afforded a defence, where, as here, the facts showed that G and J knew and accepted the risk (albeit a remote risk) of testing in a way that contravened their employers' instructions and the statutory regulations.

(2) each of them, G and J, (the brothers) emerged from their joint enterprise as author of his own injury, and neither should be regarded as having contributed a separate wrongful act injuring the other.

The defence of volenti non fit injuria should be available where the employer is not himself in breach of statutory duty and is not vicariously in breach of any statutory duty through neglect of some person of superior rank to the plaintiff and whose commands the plaintiff is bound to obey, or who has some special and different duty of care.

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The common law duty of care; the ‘neighbour principle’

Donoghue v. Stevenson [1932] All ER Rep 1; [1932] AC 562; House of Lords

Negligence, Whether duty owed to person injured. Duty of manufacturer of article to ultimate consumer. Bottle of ginger beer bought from retailer. Bottle containing dead snail. Purchaser poisoned by drinking contents. Liability of manufacturer to consumer.

The common law duty of care; the ‘neighbour principle’

Facts of the case:

On 9th April 1929 Mrs Mary M'Alister or Donoghue brought an action against David Stevenson aerated water manufacturer Paisley, in which she claimed £500 as damages for injuries sustained by her through drinking ginger beer which had been manufactured by the defender.

Mrs. Donoghue and her friend went to a shop occupied by Francis Minchella, and known as Wellmeadow Café, at Wellmeadow Place, Paisley where the friend purchased ice cream, and ginger beer suitable to be used with the ice cream as an iced drink. for Mrs. Donoghue to drink. Mrs. Donoghue had no direct or indirect claim against the manufacturer based on contractual obligations because she did not purchase the product. The ginger beer was contained in an opaque bottle that prevented the contents from being viewed clearly. Mrs. Donoghue consumed some of the product after which the decomposed remains of a snail emerged from the bottle when the remaining ginger beer was poured into her glass. She sought damages against the manufacturer, Stevenson, from the resulting nervous shock and gastro-enteritis, which she claimed was caused through the incident. The trial judge found that the plaintiff could bring an action. The Court of Appeal overturned this decision. The plaintiff appealed to the House of Lords.


The Decision

The issue of law before the House of Lords was whether the defendant (Stevenson) owed Mrs. Donoghue a duty of care. The case was never tried on the facts. Dicta of Lord Atkin: ". The complainant has to show that he has been injured by the breach of duty owed to him in the circumstances by the defendant to take reasonable care to avoid such injury". The rule in Heaven v. Pender was "demonstrably too wide." The concept of negligence is based upon "a sentiment of moral wrongdoing (for) which the offender must pay." Not every moral wrong can have a practical effect in law so it must be limited to taking "...reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." A neighbour is a person so closely connected with and directly affected by (proximate to) my act (or omission) that I should have had them in mind when I committed the act (or omission). It would be a grave defect in the law if a consumer could not claim in circumstances such as a manufacturer negligently mixing poison into a drink.

Lord Buckmaster referring to the dicta of Brett MR in Heaven v. Pender and the decision in George v. Skivington (1867) LR5 Ex 1 (which were applied by Lord Atkin): ". It is in my opinion better that they should be buried so securely that their perturbed spirits shall no longer vex the law."

You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour/another.


Notes on the case:

Lord Atkin's statement

Lord Atkin's statement about the foreseeability of the effects of one's acts on one's neighbours is central to the existence of a duty of care in the law of tort/delict, especially on the then developing nascent tort/delict of negligence. In this judgement he formulates what is commonly known as the "neighbour principle".

There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. ... The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be — persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as long as so affected when I am directing my mind to the acts or omissions that are called in question.

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Duty of care to trespassers

Herrington v British Railways Board [1972] AC 877,

The House of Lords overruled (modified) Addie v Dumbreck [1929] AC 358. In Addie, the House of Lords had held that an occupier of premises was only liable to a trespassing child who was injured by the occupier intentionally or recklessly. In Herrington, their Lordships held that a different approach was appropriate in the changed social and physical conditions since 1929. They propounded the test of 'common humanity' which involves an investigation of whether the occupier has done all that a humane person would have done to protect the safety of the trespasser.

Facts of the case:

The child had got through a gap in the fence near the railway line. The board, as occupiers, were aware of previous trespasses but had failed to maintain the integrity of the fence.

The Decision:

The board was held liable for injuries to a six year old child who had been playing on the railway line. The House of Lords held that the occupier of the railway premises owed a duty of common humanity to the child. Until this case no duty of care was owed to trespassers. (The Occupiers Liability Act 1984 extended the duty of care to include trespassers).

Overruled Addie & Sons v Dumbreck [1929]

In Addie, an occupier of premises was only liable to a trespassing child who was injured by the occupier intentionally or recklessly.

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Vicarious Liability

Vicarious liability gives the claimant access to the financial resources of the employer via such means as his insurance. An employee, who was negligent, is unlikely to have the financial means to pay compensation. Therefore, even though the employer was not directly responsible for the loss, he is responsible for the negligence.

In the case of Rose v Plenty (1976) vicarious liability was proved. A milkman took a boy on the round against the wishes of the employer. The boy was hurt on the round and successfully sued the dairy for the milkman's negligence.


Further to this is the case of Lister v Romford Ice & Cold Storage Co. Ltd 1957. There are two Listers, a father and son. The son was reversing a lorry and hit his father. Although the father could have sued the son directly he chose to sue the employer for vicarious liability and won the case. The company (via the insurer) then sued the son who ended up paying the same amount for negligence because he had not obeyed reasonable commands or used reasonable care, both implied in his contract.


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Reasonably practicable

"[The term] 'reasonably practicable' ... implies a computation must be made by the owner in which the quantum of risk is placed in one scale and the sacrifice involved in the measures necessary for averting the risk is place in the other, and that, if it be shown that there is a gross disproportion between them the ris being insignificant in relation to the sacrifice the defendants discharge the onus of them."

Risk v Cost

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Marshall v Gotham & Co. Ltd

Five years after Edwards came the 1954 case of Marshall v Gotham & Co. Ltd, yet another mining accident. The roof of a gypsum mine collapsed due to a rare geological fault. Gotham & Co had taken reasonable precautions to shore up the roof where required; they carried out a standard and accepted test and then shored up where a need was indicated. Anything in excess of this would have been unreasonable. "The danger was a very rare one. The trouble and expense involved in the use of precautions while not prohibitive, would have been considerable. The precautions would not have afforded anything like complete protection against the danger." In the circumstances, the employers had done all that was reasonable.

The claim by the wife of Marshall was unsuccessful but the case lead to the legal definition of practicable when compared with reasonably practicable.


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Edwards v National Coal Board

Edwards died in an accident after the supporting structure for the mine roadway gave way. The National Coal Board argued that it was too expensive to shore up every roadway in all of the mines.

The case turned when it was decided that it was not 'all of the roadways' that needed shoring up; just the ones that required it. In essence this established the need to carry out a risk assessment the cost, time and trouble to mitigate a risk balanced against the risk and the severity of any harm it might cause

Asquith stated in his judgment: "Reasonably practicable is a narrower term than ‘Physically

possible’ and implies that a computation must be made... in which the quantum of risk is placed in one scale and the sacrifice involved in the measures necessary for averting the risk (whether in time, trouble or money) is placed in the other and that, if it be shown that there is a great disproportion between them – the risk being insignificant in relation to the sacrifice – the person upon whom the obligation is imposed discharges the onus which is upon him."

The Court of Appeal decided that "reasonably practicable" was a more narrowly defined phrase than what was "physically possible." This allowed for the creation of equations that measured the risk present in a given situation against the reasonable practicability of mitigating that risk. In other words, the equation asked if averting the risk was worth the effort it took to negate that risk


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welcome

This blog is to help myself and others navigate health and safety plus environment(al) law

Kevin Jones
safety health environment - she ltd
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