Qualcast (Wolverhampton) Ltd v Haynes HOUSE OF LORDS LORD RADCLIFFE, LORD COHEN, LORD KEITH OF AVONHOLM, LORD SOMERVELL OF HARROW AND LORD DENNING 23, 24, 25 FEBRUARY, 25 MARCH 1959 Safe System of Working – Extent of master’s duty – Duty to give information or advice – Availability of protective clothing insufficient – Foundry – Injury to experienced moulder. Judgment – Judicial decision as authority – Negligence – Reasons given by judge for coming to conclusions of fact not to be regarded as law. The respondent was employed at the appellants’ foundry as a moulder. He was thirty-eight years old and had been a moulder all his working life. While he was casting at the moulding boxes, the ladle of molten metal which he was holding slipped, and some of the metal splashed on to his left foot and, as he was not wearing protective spats or special boots, his foot was injured. The appellants kept in their stores spats which could be had by any workman for the asking, and strong boots which could be had on payment. The respondent knew that the spats and boots were available. The appellants had not ordered or advised the respondent to wear protective clothing, as he was an experienced worker, and he knew and appreciated the risks of the metal splashing which attached to his work. In an action for damages against the appellants, the respondent alleged negligence on their part in failing to provide any or any proper spats or other sufficient protective clothing, and in failing to provide a safe system of work and safe and proper plant and equipment. The county court judge found that there had been a breach of duty at common law by the appellants to the respondent, but that the respondent was guilty of contributory negligence, and that his share of the responsibility was seventy-five per cent. He expressed the view that, had he not been bound by authority, he would have decided that the respondent was so experienced that he needed no warning, that what he did was with the full knowledge of all the risks involved, and that there was no negligence on the part of the appellants. Held – Lord Cohen dissenting): a failure of duty on the part of the appellants, as employers of the respondent, had not been established, because the respondent was an experienced moulder and by making protective spats available to him, to his knowledge, the appellants had on the facts of this case sufficiently provided proper protective clothing and had fulfilled their duty to take reasonable care for his safety, despite the fact that they had not brought pressure to bear on him to wear the spats. Per Lord Somervell of Harrow and Lord Denning (Lord Cohen concurring): reasons given by a judge for reaching conclusions on a question of negligence which, if the trial were with a jury, the jury would decide, were not propositions of law and authorities should not be cited for them (see p 43, letters f to i, and p 45, letter g to p 46, letter b, post; cf p 42, letter b, post). Per Lord Somervell Of Harrow: when a point that has not been pleaded is allowed to be taken in the Court of Appeal, an amendment should be drafted whether or not the case seems likely to reach the House of Lords (see p44, letter g, post). Decision of the Court of Appeal (sub nom Haynes v Qualcast (Wolverhampton) Ltd) ( 1 All ER 441) reversed. LORD RADCLIFFE. My Lords, I have had the opportunity of reading in advance the opinion that is about to be delivered by noble and learned friend, Lord Keith Of Avonholm. I agree with his conclusions and with the reasons which he gives for arriving at them. I do not think that I need say more, therefore, than that I think that the appeal must be allowed. I am satisfied that 39 the careful judgment of the learned county court judge is vitiated by the fact that he treated the law as compelling him to attribute a breach of duty to the appellants solely because they had not urged or instructed the respondent to wear protective spats while engaged in the work of moulding. Had he not believed himself to be under this legal compulsion he would, as he says, have found that there was no negligence on the part of the appellants. In my opinion, the law cannot be expressed in any such absolute or simplified form as he supposed. There are only two words of caution which I would add to what will be said by others of your Lordships. One is that, though, indeed, there may be cases in which an employer does not discharge his duty of care towards his workmen merely by providing an article of safety equipment, the courts should be circumspect in filling out that duty with the much vaguer obligation of encouraging, exhorting or instructing workmen, or a particular workman, to make regular use of what is provided. Properly to measure that obligation as a legal duty requires a fuller knowledge of the circumstances of the factory and of the relations between employers and workmen and their representatives than was available at any rate in the present case. Particularly would that be so, I think, when, as here, there had only just come into force an enactment, the Iron and Steel Foundries Regulations, 1953a , which, though containing a regulation expressly devoted to the subject of “protective Equipment”, included no reference at all to the provision or use of protective spats. ________________________________________ a SI 1953 No 1464 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯ The second point is that, however much attention is concentrated in these cases on the adequacy of the system of working at the place of work, actions of negligence are concerned with the duty of care as between a particular employer and a particular workman. An experienced workman dealing with a familiar and obvious risk may not reasonably need the same attention or the same precautions as an inexperienced man who is likely to be more receptive of advice or admonition. Here, no doubt, the question of delimiting the duty merges with the question of causation. I would allow the appeal. LORD COHEN. My Lords, I have had the opportunity of reading in print the speech which will shortly be delivered by my noble and learned friends, Lord Keith Of Avonholm, Lord Somervell Of Harrow and Lord Denning. I respectfully agree with the observations they make as to the proper use of authorities in cases such as the present, and I cannot usefully add anything to what they say on that subject. I have, however, the misfortune to differ from them as to the proper application of those principles to the present case. Since this is really a question of fact and I find myself in complete agreement with what wa s said thereon in the Court of Appeal by the Master of the Rolls (Lord Evershed) and Parker LJ I do not think I can usefully add anything to the reasons they give for their conclusion. I would dismiss the appeal. LORD KEITH OF AVONHOLM. My Lords, this case comes to your Lordships’ House on appeal from a judgment of the Court of Appeal (Lord Evershied MR Parker LJ and Sellers LJ) affirming a judgment of the county court judge, His Honour Judge Norris. The facts of the case are simple and can be shortly stated. The respondent, whom I shall call the plaintiff, is a moulder, some thirty-eight years of age, and has been a moulder all his working life. He had been employed as such by the appellants for some twelve or thirteen weeks, at their foundry at Wolverhampton, when the accident which gave rise to this action happened, on 16 September 1954. As found by the learned county court judge, the plaintiff was casting at the moulding boxes, when the ladle of molten metal which he was holding slipped, and some of the metal splashed on to his left foot causing him some injury from 40 which, after a few months’ disability, he has entirely recovered. This, it may be observed, is not the case that was made by the plaintiff, but it is the way in which the learned judge has held that the accident happened and he found himself able to deal with the case on that footing. The plaintiff’s case was that he was carrying a ladle of molten metal along a gangway in the foundry when he stumbled over an obstacle whereby the metal splashed over his foot. The learned judge disbelieved this account of the accident, and much of the plaintiff’s case founded on alleged breaches of s 26 of the Factories Act, 1937, and certain regulations of the Iron and Steel Foundries Regulations, 1953, accordingly disappeared. The case came to centre on two alleged grounds of negligence, that the appellants (i) failed to provide any or any proper spats or other sufficient protective clothing; and (ii) failed to provide a safe system of work and safe and proper plant and equipment. These resolved themselves in the end into the question of the duty of the employers to provide the plaintiff with protective clothing. The course which the case took in the county court may account for an absence of evidence with regard to the practice of wearing spats or other protective clothing in foundries generally, and to a concentration on the plaintiff’s own practice in the matter of wearing spats. It only remains to notice, before parting from these preliminary matters, that the appellants, as well as denying the allegations that they were negligent, took the defence that, in any event, the accident resulted from the plaintiff’s own negligence. In the result, the county court judge apportioned three-quarters of the negligence causing the accident to the plaintiff and one-quarter to the appellants. The Court of Appeal affirmed this judgment. No cross-appeal has been taken to this House by the plaintiff. The material facts on which the case turns are contained in a short passage in the judgment of the learned judge which, in my opinion, is fully supported by the evidence. I quote the passage in full: “Now when the accident happened the plaintiff was wearing ordinary boots which he had bought for the work. They were strong working boots with a leather tongue inside, part of which was sewn up to some distance, but they were ordinary boots. I find that there were spats in the stores which could be had for the asking, and that there were also strong boots in the stores which could be had on payment. The plaintiff was not ordered or advised by the defendants to wear protective clothing, and I think that was because he was an experienced moulder. The foreman, who gave evidence, Kenneth Charles Bloor, stated that had the plaintiff been a learner he would have advised him about wearing protective clothing, but as he was an experienced man he considered that he did not need any warning; he knew and appreciated the risks of the metal splashing attaching to his work. I believe that if he had wanted spats he could have had them for the asking. I think he knew of all the risks involved and quite voluntarily decided to wear the boots which he was wearing, and I believe that since the accident and since his return to work as a moulder he has not worn any protective clothing. Since the accident he has done as he did before.” He returns to the matter later when he says: “In the present case, the spats and boots were there, and the plaintiff knew they were there, but he was never told that they must be worn. He decided the matter himself.” On this view of the facts the learned judge expressed himself as follows: “Now if I were not bound by authority I should decide that the plaintiff was so experienced that he needed no warning and that what he did was with the full knowledge of all the risks involved, and that there was no negligence on the part of the defendants.” It seems clear what he was here saying. The plaintiff “needed no warning”, that is against the danger of splashing from molten metal and on the advisability of 41 wearing protective clothing. “What he [the plaintiff] did” was, in the knowledge of the risk, to wear no protective clothing other than his own boots. The learned judge then proceeds: “But I feel in view of the authorities cited to me that such a decision would be wrong and I feel compelled to come to a different conclusion.” My Lords, in my opinion, the learned judge has here misdirected himself. The cases referred to, which I do not find it necessary to examine in detail, differed in material respects from the facts of the present case. In the sphere of negligence where circumstances are so infinite in their variety it is rarely, if ever, that one case can be a binding authority for another. A case may announce a principle which may be capable of application in other cases, but I know of no principle that, in all cases and all circumstances, an employer is liable for failing to see that a foundry man is supplied or supplies himself with spats or boots, or, at the lowest, is “exhorted or pressed with ardour” to avail himself of such protection. It is in this last phrase alone that I can discover in the judge’s judgment any principle by which he professes to have guided himself. But these words were used in a very different kind of case, a case of pneumoconiosis where the risk, the nature of the risk, the workman’s appreciation of the risk and the consequences of falling a victim to the risk were on an entirely different plane. It is clear to my mind that, if the learned judge had not thought, wrongly, in my opinion, that he was bound by the authorities which he cites, he would have found that there was no negligence on the part of the appellants. If he had done so his judgment would, in my opinion, have been unassailable. The duty owed by the employers was a duty owed to the plaintiff. This is not necessarily the same as the duty owed to others of the workers. The duty may vary with the worker’s knowledge and experience. The learned Master of the Rolls and Parker LJ correctly state the duty generally as the duty of an employer to take reasonable care for the safety of his workmen. But, in the present case, the Master of the Rolls regards the appellants as owing to all their workmen an identical standard of care and goes on to say that ( 1 All ER at p 444): “Since, on the judge’s finding, the defendants in the present case did nothing at all other than have the gaiters ready for those that asked, I think that they fell short of their duty.” With all respect to the learned Master of the Rolls, this is hardly in accordance with the evidence or with the judge’s findings. It is clear on the evidence that the employers did advise inexperienced men to wear spats, and possibly others as well. The Master of the Rolls treats the judge’s conclusion as being a conclusion of fact which he is unwilling to disturb. But, in my opinion, as expressed, the judge’s conclusion is not a conclusion of fact but a conclusion of law reached on an erroneous assumption that he was bound by a series of inapplicable authorities. Sellers LJ takes the view (ibid., at p 448), with which I agree, that the plaintiff’s attitude, as revealed in his evidence, was that he did not think it necessary to wear spats for his protection, and that is why he did not wear them. But he reluctantly feels himself bound to support the learned judge and dismiss the appeal. As I have already said, the course that the case took in the county court may have prevented sufficient attention being paid to practice in the matter of the wearing of spats or other protective wear in foundries. There is a suggestion in the evidence that the majority of the men in the appellants’ foundry disliked wearing spats, and for all I know there may be reasons for not wearing spats. It is not insignificant that reg 8 of the Iron and Steel Foundries Regulations, 1953, while requiring the provision of suitable gloves or other protection for the hands, approved respirators for men working in heavy dust concentrations, and suitable goggles or other eye protection for men working in certain conditions, requires 42 no provision of boots, spats or other protective foot or leg equipment. This is in no sense conclusive of the scope of an employer’s duty, but it has some evidential value in a case otherwise lacking in evidence of practice in this direction. We listened to some argument on the meaning of the word “provide”. Apart from use in statute or statutory regulation, where the word may call for a definite meaning, the word as expressive of a duty can have but an ambulatory connotation. In considering whether there is a common law duty on an employer to provide something, the scope of the obligation must vary with the particular circumstances of the case. This case is but one illustration of the limit of the nature of the provision in relation to the plaintiff on the assumption that there was a duty to provide spats for him. Spats were provided for him in the sense that they were available for him if he wished to use them and he knew they were available. He decided for himself that he did not wish to use them. In the circumstances of this case, I cannot hold that the employers had a further duty to bring pressure to bear on him to use them, a pressure which, on the evidence, he would have ignored and might have resented. The spats being available, there was, in my opinion, no failure of duty on the part of the employers to provide spats for this workman. A separate argument was advanced for the appellants on the point of causation. The two questions to some extent run into one another. If, as I think, there was no negligence here on the part of the appellants in relation to the plaintiff there could be no negligence causing the accident. I find it unnecessary to consider causation on the opposite assumption. I would allow the appeal. LORD SOMERVELL OF HARROW. My Lords, I also would allow the appeal. In the present case, the county court judge, after having found the facts, had to decide whether there was, in relation to this respondent, a failure by the appellants to take reasonable care for his safety. It is, I think, clear from the passage cited by my noble and learned friend that he would have found for the appellants but for some principle laid down, as he thought by the authorities, to which he referred. I hope it may be worth while to make one or two general observations on the effect on the precedent system of the virtual abolition of juries in negligence actions. Whether a duty of reasonable care is owed by A to B is a question of law. In a special relationship such as that of employer to employee the law may go further, and define the heads and scope of the duty. There are cases in your Lordships’ House which have covered this ground, I would have thought by now, exhaustively: Wilsons & Clyde Coal Co Ltd v English ( 3 All ER 628); Latimer v AEC Ltd ( 2 All ER 449); General Cleaning Contractors Ltd v Christmas ( 2 All ER 1110), and there are, of course, others. There would seem to be litt le, if anything, that can be added to the law. Its application in borderline cases may, of course, still come before appellate tribunals. When negligence cases were tried with juries, the judge would direct them as to the law as above. The question whether, on the facts in that particular case, there was or was not a failure to take reasonable care was a question for the jury. There was not, and could not be, complete uniformity of standard. One jury would attribute to the reasonable man a greater degree of prescience than would another. The jury’s decision did not become part of our law citable as a precedent. In those days it would only be in very exceptional circumstances that a judge’s direction would be reported or be citable. So far as the law is concerned they would all be the same. Now that negligence cases are mostly tried without juries, the distinction between the functions of judge and jury is blurred. A judge naturally gives reasons for the conclusion formerly arrived at by a jury without reasons. It may sometimes be difficult to draw the line, but if the reasons given by a judge for arriving at the conclusion previously reached by a jury are to be treated as “law” and citable, the precedent system 43 will die from a surfeit of authorities. In Woods v Durable Suites Ltd ( 2 All ER 391), counsel for the plaintiff was seeking to rely on previous decision in a negligence action. Singleton LJ said this (ibid, at p 393): “That was a case of the same nature as this, but it is of the greatest importance to note that, though the nature of the illness and the nature of the work were the same, the facts were quite different. Counsel claims that it lays down a standard to be adopted in a case of this kind. In other words, he seeks to treat that decision as deciding a question of law rather than as being a decision on the facts of that particular case.” In the present case, and I am not criticising him, the learned county court judge felt himself bound by certain observations in different cases which were not, I think, probably intended by the learned judges to enunciate any new principles or gloss on the familiar standard of reasonable care. It must be a question on the evidence in each case whether, assuming a duty to provide some safety equipment, there is a duty to advise everyone whether experienced or inexperienced as to its use. Whether or not the learned judge was misled by authorities, there remains the question whether the appellants failed in their duty in not advising or seeking to educate the respondent in the use of spats. The point on which the respondent succeeded was not pleaded. The respondent’s main case was that a gangway was obstructed. He was not believed on that. He alleged a failure to provide spats. They were provided, as the judge found, to the respondent’s knowledge. If the respondent had alleged in his particulars of negligence a failure to advise him or educate him in their use, it may well be that this would have been gone into more fully in the examination and cross-examination of the witnesses. The point not having been pleaded, it would be wrong to draw inferences adverse to the appellants which might well have been answered in evidence if the point had been pleaded. Parker LJ for example, assumed that the respondent was not told when he entered the appellants’ employment that spats were available. This would suggest that there was no general practice in other foundries of providing spats, or the respondent would have assumed their provision. This would be a point in the appellants’ favour. It may have been obvious at once from the number of men wearing spats, as stated by Mr Darby, that spats were there for the asking. I would like to suggest that, when a point not pleaded is allowed to be taken in the Court of Appeal, an amendment should be drafted whether or not the case seems likely to reach this House. To see the allegation in terms often assists. I have come to the conclusion that the learned judge’s first impluse was the right conclusion on the facts as he found them, and for the reasons which he gives. I will not elaborate these reasons or someone might cite my observations as part of the law of negligence. LORD DENNING. My Lords, in 1944, Du Parcq LJ gave a warning which is worth repeating today: “There is a great deal of danger, if I may say so, particularly in these days when very few cases are tried with juries, of exalting to the status of propositions of law what really are particular applications to special facts of propositions of ordinary good sense.” See Easson v London & North Eastern Ry Co ( 2 All ER 425 at p 430). In the present case, the only proposition of law that was relevant was the well-known proposition—with its threefold subdivision—that it is the duty of a master to take reasonable care for the safety of his workmen. No question arose on that proposition. The question that did arise was this: What did reasonable care demand of the employers in this particular case? That is not a question of law at all but a question of fact. To solve it, the tribunal of fact—be it judge or jury— 44can take into account any proposition of good sense that is relevant in the circumstances, but it must beware not to treat it as a proposition of law. I may perhaps draw an analogy from the Highway Code. It contains many propositions of good sense which may be taken into account in considering whether reasonable care has been taken, but it would be a mistake to elevate them into propositions of law. Applying this to the present case: You start with the fact that, when a moulder in an iron foundry carries a ladle full of hot molten metal and pours it into the moulding box, there is a danger that the hot metal may splash over on to his feet. In order to safeguard him from injury, the employers ought, I should have thought, to provide protective footwear for him. But in saying so, I speak as a juryman, for it is not a proposition of law at all, only a proposition of good sense. If the employers fail to provide protective footwear, the tribunal of fact can take it into account in deciding whether the employers took reasonable care for the safety of their men: and it was so taken into account by Gerrard J Gorman J and Stable J in the three casesb of which transcripts were provided. In each case the employers were held at fault. ________________________________________ b Bilsbury v Harrison, McGregor & Guest Ltd (1955), Brooker v Jenkins Bros Proprietors Ocean SS Co Ltd (1956), and Webb v Smith, Bingley & Evans Ltd (1956), respectively ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯ But the question here is not whether the employers ought to provide protective footwear for the men—for they clearly did so. The question is whether, having provided spats and boots, they ought to go further and urge the men to wear them. Here, too, I should have thought that the employers ought to advise and encourage the men to wear protective footwear. But again I speak as a juryman and not as a judge; because it is not a proposition of law at all, but a proposition of good sense. And that is the very point where the county court judge fell into error. He treated it as a matter of strict law. He thought that, as the respondent “was never told that they must be worn”, he was bound by authority to find that the appellants were negligent. He treated it almost as on a par with a statutory regulation; whereas it was nothing of the kind. The distinction was taken by Lord Wright twenty-five years ago: “whereas at the ordinary law the standard of duty must be fixed by the verdict of a jury, the statutory duty is conclusively fixed by the statute.” See Lochgelly Iron & Coal Co Ltd v M’Mullan ( AC 1 at p 23). So, here, this being a case governed by the common law and not by any statute or regulation, the standard of care must be fixed by the judge as if he were a jury, without being rigidly bound by authorities. What is “a proper system of work” is a matter for evidence, not for law books. It changes as the conditions of work change. The standard goes up as men become wiser. It does not stand still as the law sometimes does. I can well see how it came about that the county court judge made this mistake. He was presented with a number of cases in which judges of the High Court had given reasons for coming to their conclusions of fact. And those reasons seemed to him to be so expressed as to be rulings in point of law; whereas they were, in truth, nothing more than propositions of good sense. This is not the first time this sort of thing has happened. Take accidents on the road. I remember well that, in several cases, Scrutton LJ said that “If you ride in the dark you must ride at such a pace that you can pull up within your limits of vision”( Baker v E Longhurst & Sons Ltd ( All ER Rep 102 at p 105)). That was treated as a proposition of law until the Court of Appeal firmly ruled that it was not (Tidy v Battman ( All ER Rep 259); Morris v Luton Corpn ( 1 All ER1)). So, also, with accidents in factories. I myself once said that an employer must, by his foreman,“do his best to keep them up to the mark”(Clifford v Charles H Challen & Son Ltd ( 1 All ER 72 at p 74)). Someone shortly afterwards sought to treat me as having laid down a new proposition of law, but the Court of Appeal, I am glad to say, corrected 45 the error (Woods v Durable Suites Ltd ( 2 All ER 391)). Such cases all serve to bear out the warning which has been given in this House beforec: ________________________________________ c Per Earl Loreburn in Blair & Co Ltd v Chilton (1915), 84 LJKB 1147 at p 1148 ¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯¯ “we ought to beware of allowing tests or guides which have been suggested by the court in one state of circumstances, or in one class of cases, to be applied to other surroundings …”, and thus by degrees to turn that which is at bottom a question of fact into a proposition of law. That is what happened in the cases under the Workmen’s Compensation Act and it led to a “wagon-load of cases”: see Harris v Associated Portland Cement Manufacturers Ltd ( 4 All ER 831 at p 835, per Lord Atkin.) Let not the same thing happen to the common law, lest we be crushed under the weight of our own reports. Seeing, then, that the county court judge fell into error, what should the Court of Appeal have done? The answer seems to me this: the Court of Appeal should have done as the judge would have done if he had not felt bound by authority. He would have found that the employers had not been guilty of negligence. True it is that, by the time the case reached the Court of Appeal, the primary facts were all ascertained, and the only issue was what was the proper conclusion from those facts. So the court was right to review it, but still it should give proper weight to the judge’s view. Since Benmax v Austin Motor Co Ltd ( 1 All ER 326), the Court of Appeal no longer takes refuge in that most unsatisfactory formula: “Although we should not have come to the same conclusion ourselves, we do not think we can interfere.” If the Court of Appeal would not have come to the same conclusion themselves, it does what the Court of Appeal ought to do—what it is there for—it overrules the decision. But, short of that, it should accept the conclusions of fact of the tribunal of fact. In this case, I would not myself be prepared to differ from the judge’s view that there was no negligence on the part of the employers in regard to this particular workman. He knew all there was to know, without being told; and he voluntarily decided to wear his own boots, which he had bought for the purpose. Only one word more. It is on causation. Even if it had been the duty of the employers to urge this workman to wear spats, I do not think that their omission should be taken to be one of the causes of the accident. It is often said that a person who omits to do his duty “cannot be heard to say” that it would have made no difference even if he had done it: see Roberts v Dorman Long & Co Ltd ( 2 All ER 428 at p 432). But this is an over- statement. The judge may infer the omission to be a cause, but he is not bound to do so. If, at the end of the day, he thinks that, whether the duty was omitted or fulfilled, the result would have been the same, he is at liberty to say so. So, here, the respondent, after he recovered from the injury, went back to work and did the same as before. He never wore spats. If the warning given by the accident made no difference, we may safely infer that no advice beforehand would have had any effect. I would allow the appeal. Appeal allowed.