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Paris Vs. Mayor, Etc., of Metropolitan Borough of Stepney - Court Judgment

LegalCrystal Citation
CourtHouse of Lords
Decided On
Case NumberNo
Judge
AppellantParis
RespondentMayor, Etc., of Metropolitan Borough of Stepney
Excerpt:
upon report from the appellate committee, to whom was refer red the cause paris against mayor etc. of metropolitan borough of stepney, that the committee had heard counsel, as well on thursday the 26th and monday 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 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.....
Judgment:

Upon Report from the Appellate Committee, to whom was refer red the Cause Paris against Mayor etc. of Metropolitan Borough of Stepney, that the Committee had heard Counsel, as well on Thursday the 26th and Monday 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 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 consideration had this day of  hat 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, complained 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  s 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 Parisw. Mayor, etc., of  etropolitan Borough of Stepney.

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 contributory 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 thatin the Court of Appeal and in this House this was the relevant plea. The first 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 consideration 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 fundamental 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 complain 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, Youdid 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, nevertheless, 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 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.

LordNormand

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' cleaning 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 supplied goggles with tinted glasses to protect the eyes of welders against excessive 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 ingarages 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 complained 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 according 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 and Accident Company Limited [1936] A.C. 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 proportioned 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 considering 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] S.C. 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 reasonable and prudent man would think so obvious that it was folly to omit it.

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 workman, 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 insufficient 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,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 comparatively trivial; if an accident occurs in the other occupation the consequences 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.

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 precautions 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.

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 required 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 Respondents 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 dismantling 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 conclusions—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 Respondents 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 thedamage 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 and 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 relation 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, indeed, 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 consequences that necessitate the precautions in this field. The habitual association 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 grinding 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 thata 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' knowledge 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 provision. 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.


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