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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