Die Mercurii, 13° Decembris 1950
Upon Report from the Appellate Committee, to whom
was refer red the Cause Paris against Mayor etc. of Metro-
politan Borough of Stepney, that the Committee had
heard Counsel, as well on Thursday the 26th and Mon-
day the 30th, days of October last, as on Thursday the
2d day of November last, upon the Petition and Appeal
of Edward John Paris, of 32 Grove Road, Bow, London,
E.3, praying, That the matter of the Order set forth m
the Schedule thereto, namely an Order of His Majesty’s
Court of Appeal of the 27th of October 1949, might be
reviewed before His Majesty the King, in his Court of
Parliament, and that the said Order might be reversed,
varied or altered, or that the Petitioner might have such
other relief in the premises as to His Majesty the King,
in His Court of Parliament, might seem meet; as also
upon the printed Case of the Mayor, Aldermen and
Councillors of the Metropolitan Borough of Stepney,
lodged in answer to the said appeal; and due considera-
tion had this day of what was offered on either side in
this Cause:
It is Ordered and Adjudged, by the Lords Spiritual
and Temporal in the Court of Parliament of His Majesty
the King assembled, that the said Order of His Majesty’s
Court of Appeal of the 27th day of October 1949, com-
plained of in the said Appeal, be, and the same is hereby,
Reversed, and that the Judgment of the Honourable Mr.
Justice Lynskey of the 11th day of April 1949, thereby
set aside be, and the same is hereby, Restored except
in regard to the amount thereby adjudged to be
recovered by the Plaintiff from the Defendants: And
it is further Ordered, That the Respondents do pay, or
cause to be paid, to the said Appellant such Costs as
have been incurred by him in the Court of Appeal, and
also the Costs incurred by him in respect of the said
Appeal to this House, the amount of such last-
mentioned Costs to be certified by the Clerk of the
Parliaments: And it is also further Ordered. That the
Paris w. Mayor,
etc., of
Metropolitan
Borough of
Stepney.
HOUSE OF LORDS
Lord
Simonds
Lord
Normand
Lord
Oaksey
Lord
Morton of
Henryton
Lord Mac-
Dermott
PARIS
v.
MAYOR, ETC., OF METROPOLITAN BOROUGH OF STEPNEY
13th December, 1950.
Lord Simonds
MY LORDS,
This is an appeal from an Order of the Court of Appeal setting aside
a judgment of Mr. Justice Lynskey in favour of the Appellant for £5,250
damages and costs.
On the 13th May, 1942, the Appellant entered the service of the
Respondents as a garage hand in their Cleansing Department. He was then
for all practical purposes blind in his left eye, having suffered serious injury
in May, 1941, as the result of enemy action, but this fact was not known
to the Respondents at that time. On or about the 22nd June, 1946, he
was medically examined with a view to his becoming a member of the
permanent staff and joining the superannuation scheme, and on the 26th
July, 1946, the Medical Officer reported to a Mr. Boden, the Respondents’
Public Cleansing Officer, that the Appellant was not fit on account of his
disablement to join the superannuation scheme. On the 16th May, 1947,
he was given two weeks’ notice expiring on the 30th May, 1947, to terminate
his employment. I will assume that at this date the Respondents had notice
of his physical disability, including the blindness of his left eye.
On the 28th May, 1947, the accident occurred which gave rise to the
present action. The Appellant was engaged in dismantling the chassis of
a gulley cleaner, a type of vehicle generally used by local authorities for
the cleansing and flushing of street gulleys. The vehicle had been raised
about 41/2 feet from the garage floor by means of a ramp. The Appellant
had to remove a ” U ” bolt holding the springs of an axle and, to release it,
he hit the ” U ” bolt with a steel hammer. As the result of his doing so
a piece of metal flew off and entered his right eye with the disastrous
consequence that he lost the sight of it altogether. On the 8th August.
1947, he commenced his action against the Respondents claiming damages
for their negligence and breach of statutory duty. The Respondents put
in a defence denying negligence and raising an alternative plea of con-
tributory negligence which has not been pursued. Nor has the Appellant
pursued his claim for breach of statutory duty. The single question is
whether the Appellant proved the negligence of the Respondents, a question
answered in the affirmative by Mr. Justice Lynskey, in the negative by
the Court of Appeal.
What then was the negligence alleged by the Appellant and denied by
the Respondents? It was that it was the duty of the Respondents to supply
the Appellant with suitable goggles for the protection of his eyes while
he was engaged in such work and to require him to use them. I can come
at once to the crux of the matter. In the statement of claim this duty is
pleaded as a general duty owed by the Respondents to their employees
engaged in this class of work: the Appellant did not allege a particular
duty owed to him by reason of his individual infirmity. At what stage
this plea emerged is not very clear, but, having more than once read
the judgment of Mr. Justice Lynskey, I share the view of the Lord Chief
Justice that that learned Judge decided the case upon the ground that
a special duty was owed to him as a one-eyed man, and it is clear that
2
in the Court of Appeal and in this House this was the relevant plea.
The tirst formal reason in the Appellant’s case asserts the Respondents’
duty ” to exercise reasonable care not unnecessarily to expose the Appellant
” to the risk of suffering the injurious results likely to follow an accident
” to his sound eye having regard to the fact that he was known by them to
” be a one-eyed man “.
The issue, my Lords, is thus narrowed down and I will say at once
that I do not dissent from the view that an employer owes a particular
duty to each of his employees. His liability in tort arises from his failure
to take reasonable care in regard to the particular employee and it is
clear that, if so, all the circumstances relevant to that employee must be
taken into consideration. I see no valid reason for excluding as irrelevant
the gravity of the damage which the employee will suffer if an accident
occurs, and with great respect to the judgments of the Court of Appeal I
cannot accept the view neatly summarised by Lord Justice Asquith that
the greater risk of injury is, but the risk of greater injury is not, a relevant
circumstance. I find no authority for such a proposition nor does it
appear to me to be founded on any logical principle.
But, my Lords, the gravity of the injury is only one of the relevant
circumstances and, while I cannot accept the judgment of the Court
of Appeal which is based on the view that it is irrelevant, unlike the
majority of your Lordships I find it impossible to uphold the judgment
of the learned trial Judge. For he, I think, ignored a con-
sideration which was essential to a proper determination of the duty
of the Respondents to the Appellant. If the gravity of the damage
is relevant, so also is the seriousness of the risk, and in the consideration
of this question I think that the learned Judge fell into error. As I have
already said, it is difficult to be sure what was in the mind of the learned
Judge, for having stated (correctly, as 1 think) that the Respondents owed
a duty to the Appellant individually, not to a class, he added, ” in this
” case the real question is whether the employers in adopting this system
” and not providing or requiring the use of goggles for the workers on
” this system were taking reasonable care to provide a suitable system of
” work and provide a suitable plant”. But he then, without coming to
any conclusion upon this question, appears to decide in favour of the
Appellant on the ground of his particular disability, for he concludes by
saying, ” I am satisfied here that there was, so far as this particular plaintiff
” was concerned, a duty upon the employers to provide goggles and require
” the use of goggles as part of their system “. Your Lordships must be
left in doubt what view the learned Judge held on what he had described
as the real question, yet it was, if not the real question, a matter of funda-
mental importance in determining what was the nature of the risk which
was run by two-eyed and one-eyed men alike. It is a question which I will
now consider.
My Lords, a study of the evidence leaves me in no doubt that an employer
could not be held guilty of negligence if he did not generally provide goggles
for the use of his employees engaged in this kind of work. Mr. Boden, to
whom 1 have already referred, a witness of wide experience, being asked,
” Have you seen in work of this kind workmen wearing goggles to do such
” work? ” replied, ” Not in my experience. I have never seen any mechanic
” working in any of the repair shops that 1 have visited during that 37 years
” wearing goggles doing that repair work “. A Mr. Reay, having served
his time in the shops where he had neither himself worn nor seen others
wearing goggles for such work, set up in business for himself. He was asked,
” When you were your own employer, did you wear goggles for such work? ”
and he answered ” No “. The Appellant himself gave evidence, which,
so far as it bears upon the obviousness of the risk and corresponding duty,
cannot be disregarded. I make nothing of the fact that he did not com-
plain that goggles were not provided, for he might well hesitate to do so.
But, being asked ” Have you considered as to whether it was dangerous to
” do this sort of job without eye protection? “, he answered, ” Well we were
” always working through years just doing the same thing. It became
” natural to get in there without protection “. Then he was asked, ” You
3
” did not think about it?”, and answered, ” We had been doing it for
” years and never thought of it”. It is true that he added that if goggles
had been provided and he had been told to use them, he would have done so.
But this does not appear to carry the matter any further. For the Appellant,
a Captain Paterson said, in answer to the learned Judge, that in the whole
of his experience he had about a dozen times seen a man wearing goggles
when he was using a hammer to knock a rusted bolt in dismantling a car.
adding that that would be when working under a vehicle. It is not clear
whether on these occasions the man was wearing goggles for fear of a
splinter of metal piercing his eye or of grit or dirt falling into it. Mr.
Parker, at the relevant time the mechanical superintendent of the Respondents’
Cleansing Department, while asserting that it was not normal practice
to wear goggles for the work in question, said he had seen men, who were
working underneath a vehicle, wearing goggles. That was ” preferably if they
” were laying on their backs”. Of the single instance that he could
distinctly remember he assumed that the man was doing it to prevent dust
getting in his eyes.
The evidence in regard to practice appears to me overwhelming. But
however unlikely such an event may be in such an organised community
as ours is today, it is possible that the practice, however widespread, is carried
on in disregard of risks that are obvious. Let me then examine this
aspect of the evidence. There was undisputed evidence that, when a piece
of steel and particularly of steel corroded with rust is struck with a
steel hammer, chips or splinters of steel may fly off. It could hardly be
otherwise. But the question is what is the risk. Captain Paterson, whom I
have already mentioned, deposed to having had personal knowledge of
about half-a-dozen eye injuries in the course of 32 years’ experience, the
first of them having taken place some six or seven years before. A Mr.
Seeley, a fellow employee of the Appellant, had a somewhat similar accident,
though for him happily the consequences were trivial, at a date which could
not be fixed whether before or after the Appellant’s accident. There is
no reason to suppose that the Respondents knew or ought to have known
of Captain Paterson’s experiences and there was nothing else.
Upon this evidence, my Lords, no other conclusion can be reached than
that the Respondents were not under a duty to provide goggles for their
workmen engaged on this work, at least if they were two-eyed men, and
the reason why they were under no such duty was because the risk was
not one against which a reasonable employer was bound to take precautions.
It was from this premise that the enquiry should proceed, whether, neverthe-
less, in the case of a one-eyed man they were bound to do so. This
clearly must depend on whether it should be manifest to the reasonable
employer that in the case of a one-eyed workman the possible damage
in the event of accident was so much graver than in the case of a two-eyed
workman that in the former case he ought to take precautions though
in the latter case he need not. I see no justification for such a conclusion.
A two-eyed man might, if a splinter struck him in the eye, suffer an
injury which in any scale would be considered very grave. He might
even suffer injury in both eyes either by immediate damage to both or
by the infection of one from the other. The eye which was left to him
might have perfect vision or might be defective in a degree varying from
the slightest imperfection to almost total blindness. But however grave,
even calamitous, the damage that he suffered by the loss of one eye, the
two-eyed man would have no remedy. The question therefore is not of a
contrast between damage in the case of one man trivial and in the case
of another very grave, but rather of an accident so serious in its con-
sequence to any man, whether one-eyed or two-eyed, that, if the risk of
it was appreciable, it would be the clear duty of the employer to provide
and enforce the use of proper precautions against it. Yet the risk was not
guarded against, for it was regarded, and rightly regarded, as a risk which
could reasonably be run. And this was so whatever the posture which
the workman assumed in doing his job. Risk cannot be assessed in terms
of scientific accuracy ; one speaks of ” conceivable ” danger and ” probable ”
10961 A 2
danger and the boundaries are blurred; one must, I concede, have regard
to the degree of injury that an accident may cause, a difficult task enough.
Taking these things into consideration and starting, as the learned Judge
did not, from the fact that, to use the familiar though inapt phrase, it was
not part of the system of work to provide goggles for two-eyed men because
the degree of risk did not demand that precaution in a reasonable employer,
I do not think there was evidence upon which it could fairly be held
that the same reasonable employer was bound at his peril to provide
goggles for one-eyed men. For these reasons I would dismiss this appeal.
But as the majority of your Lordships are in favour of allowing the appeal,
the Judgment of Lynskey J. upon liability must be restored and it will remain
for the Court of Appeal to deal with the Appellant’s appeal upon the
quantum of damages.
Lord Normand
MY LORDS,
This appeal involves a question of general importance affecting the
Common Law duty which an employer owes to his employee. It is this.
A workman is suffering, to the employer’s knowledge, from a disability which,
though it does not increase the risk of an accident’s occurring while he is at
work, does increase the risk of serious injury if an accident should befall
him ; is the special risk of injury a relevant consideration in determining the
precautions which the employer should take in fulfilment of the duty of care
which he owes to the workman?
The Appellant, when he entered the respondents’ service in 1942, suffered
from a permanent defect of the vision of his left eye which made him virtually
a one-eyed man. In July, 1946. he was examined, at the instance of the
Respondents, by their medical officer. The purpose of the examination
was to determine whether he was fit to be enrolled in the Respondents’
permanent staff. The examining doctor, on 22nd July, 1946, reported the
defect of the Appellant’s left eye to the head of the department in which
the Appellant was employed. The Respondents must, therefore, be held
to have known of the defect from that date. From 1942 till the accident the
Appellant worked as a fitter’s mate in the garage of the Respondents’ clean-
ing department on the maintenance and repair of vehicles. On the 28th May,
1947, a large vehicle, used for cleaning sewers and gulleys, was brought
into the garage to be stripped for examination. It was placed upon a plat-
form let into a pit in the floor from which it was raised, after the vehicle
had been placed upon it, to a height of about four to five feet above the
floor level. When the platform was in this position the Appellant set to
work to strip the vehicle. To do this it was necessary for him to stand
with his eyes level with or slightly below the part at which he was working.
He first removed the nuts from the U-bolt which held the springs in place
and cleared away the dirt from the U-bolt itself. He then used an ordinary
hammer to knock out the rusty bolts. While he was doing this a fragment
of metal was broken off and lodged in his right eye, which is in consequence
now completely blind. The work which the Appellant was doing on this
occasion was similar to the work that he had been doing for the previous
five years.
The Appellant’s case is that for this sort of work the Respondents ought
to have supplied him with goggles to protect his eyes. The Respondents sup-
plied goggles with tinted glasses to protect the eyes of welders against exces-
sive light and they supplied goggles for men working on grinding machines.
But they supplied no goggles for men employed on the maintenance and
repair of vehicles. There was evidence from each side on the question
whether it was usual for employers to supply goggles to men employed in
garages on that sort of work. The weight of the evidence is decidedly
against the Appellant on that point. On the other hand there is proof
that individual men working under a vehicle in the Respondents’ garage
did occasionally take a pair of goggles from a cupboard in the garage and
wear them to protect the eyes, and that it was known to the Respondents’
responsible officials that dirt did sometimes get into the men’s eyes and also
that when bolts were removed pieces of metal might sometimes fly. Thus,
according to the public cleansing officer, it was a common occurrence that
men got dirt into their eyes, and one such accident is proved by the victim
but it is not clear whether it took place before or after the accident to the
Appellant. The Appellant depones that dirt and grit fell on to his face and
into his hair when he was working under the vehicles, but he never com-
plained about this, and never thought of the danger to his eyes.
Lynskey, J. in his judgment made no reference to the evidence of the
practice followed by other employers nor did he hold that the Respondents
ought to have supplied goggles to all the workers engaged on the same sort of
work as the Appellant. After mentioning the risk of pieces of metal flying
out, and the position in which the men had to work with their eyes on a
level with or below the part of the vehicle at which they were working (matters
which apply to all the workmen), he emphasized the importance of the
Appellant’s having, to the Respondent’s knowledge, only one useful eye.
His conclusion is: ” The result is, in my view, in this case on the evidence,
“… that I am satisfied here that there was, so far as this particular
” plaintiff was concerned, a duty upon the employers to provide goggles and
” require the use of goggles as part of their system.”
” In the Court of Appeal the learned Lord Chief Justice said: ” The way
” that the learned judge has decided the case, and the ground upon which Mr.
” Beney has endeavoured to uphold the judgment, is that because this man
” had one eye only, a greater duty was owed to him than was owed to
” other persons because the consequences of an accident would be so much
” more serious.” If 1 may respectfully say so. 1 think that the learned Lord
Chief Justice correctly interpreted the judgment.
The Court of Appeal reversed the judgment for reasons which are very
clearly stated by Asquith, L.J. ” The disability can only be relevant to the
” stringency of the duty owed to the Plaintiff if it increases the risk to which
” the Plaintiff is exposed. A one-eyed man is no more likely to get a splinter
” or a chip in his eye than is a two-eyed man. The risk is no greater, but
” the damage is greater to a man using his only good eye than to a man
” using two good eyes; but the quantum of damage is one thing and the
” scope of duty is another. The greater risk of injury is not the same thing as
” the risk of greater injury, and the first thing seems to me to be relevant
” here”.
Whether that is a correct view is of considerable importance, for the
ratio of the judgment will apply not only where the duty of care arises from
the relationship of master and servant but in many other cases of alleged
negligence.
It is not disputed that the Respondents’ duty of care is a duty owed to their
employees as individuals. But the Respondents contend that, though it is
not a duty owed to the employees collectively, they must take account
in fulfilling the duty only of any disability that increases the risk of
an accident’s occurring. For that proposition no authority was cited and
in my opinion it is contrary to principle. The test is what precautions
would the ordinary reasonable and prudent man take. The relevant
considerations include all those facts which could affect the conduct of a
reasonable and prudent man and his decision upon the precautions to be
taken. Would a reasonable and prudent man be influenced, not only by
the greater or less probability of an accident occurring but also by the
gravity of the consequences if an accident does occur? In Mackintosh v.
Mackintosh (1864) 2. M. 1357 Lord Neaves, considering a case of alleged
negligence in muir burning, said: ” It must be observed that in all cases the
” amount of care which a prudent man will take must vary infinitely accord-
6
” ing to circumstances. No prudent man in carrying a lighted candle through
“a powder magazine would fail to take more care than if he was going
” through a damp cellar. The amount of care will be proportionate to the
“degree of risk run and to the magnitude of the mischief that may be
” occasioned “. In Northwestern Utilities Limited v. London Guarantee
& Accident Company Limited [1936] AC 108 at 126 Lord Wright, dealing
with the risk of grave damage which may be caused by gas escaping from
a main, said: ” The degree of care which that duty involves must be propor-
” tioned to the degree of risk involved if the duty should not be fulfilled “.
The learned editor of ” Salmond on Torts ” (Tenth Edn. p. 438 f.n.) similarly
says: ” There are two factors in determining the magnitude of a risk, the
” seriousness of the injury risked, and the likelihood of the injury being in
fact caused “. These are, in my opinion, accurate statements both of the
law and of the ordinary man’s conduct in taking precautions for his own
safety. ” No reasonable man handles a stick of dynamite and a walking-stick
” in the same way ” (Winfield on Tort 4th Edn. 407).
The Court’s task of deciding what precautions a reasonable and prudent
man would take in the circumstances of a particular case may not be easy.
Nevertheless the judgment of the reasonable and prudent man should be
allowed its common every day scope, and it should not be restrained from con-
sidering the foreseeable consequences of an accident and their seriousness for
the person to whom the duty of care is owed. Such a restriction, if it might
sometimes simplify the task of the judge or jury, would be an undue and
artificial simplification of the problem to be solved. If the Courts were
now to take the narrow view proposed by the Respondents the cleavage
between the legal conception of the precautions which a reasonable and
prudent man would take, and the precautions which reasonable and prudent
men do in fact take would lessen the respect which the administration of
justice ought to command. To guard against possible misunderstanding it
may be well to add here that the seriousness of the injury or damage risked
and the likelihood of its being in fact caused may not be the only relevant
factors. For example, Asquith, L.J. in Daborn v. Bath Tramways Motor
Co. Ltd. [1946] 2 A.E.R.333 pointed out that it is sometimes necessary to
take account of the consequence of not assuming a risk.
1 am unable, therefore, to reject the conclusion arrived at by Lynskey, J.
on the ground upon which the Court of Appeal proceeded. But that does
not end the appeal. For there remains the question whether, assuming
that the fact that the Appellant was to the knowledge of the Respondents
a one-eyed man was a relevant circumstance, the judgment of Lynskey,
J. was in accordance with the evidence. The kind of evidence necessary
to establish neglect of a proper precaution was considered in Morton v.
William Dixon Lid. [1909] SC 807 by Lord President Dunedin as he then was
That was an action by a miner against his employers alleging negligence in
failing to take precautions against the fall of coal from the top of the shaft
into the space between the side of the shaft and the edge of the cage. It
was, of course, a Scotch case, but in my opinion there is no difference between
the law of Scotland and the law of England on this point. The Lord
President said: ” Where the negligence of the employer consists of what I
” may call a fault of omission, 1 think it is absolutely necessary that the
” proof of that fault of omission should be one of two kinds, either to show
” that the thing which he did not do was a thing which was commonly done
” by other persons in like circumstances, or to show that it was a thing
” which was so obviously wanted that it would be folly in anyone to neglect
” to provide it.” The rule is stated with all the Lord President’s trenchant
lucidity. It contains an emphatic warning against a facile finding that a
precaution is necessary when there is no proof that it is one taken by other
persons in like circumstances. But it does not detract from the test of the
conduct and judgment of the reasonable and prudent man. If there is
proof that a precaution is usually observed by other persons, a reasonable
and prudent man will follow the usual practice in the like circumstances.
Failing such proof the test is whether the precaution is one which the reason-
able and prudent man would think so obvious that it was folly to omit it.
In the present case, as I have already said, the balance of the evidence
inclines heavily against the Appellant on the question of the usual practice
of others. But that evidence necessarily dealt with the normal case when
the employee suffers from no special disablement. In the nature of things
there could scarcely be proof of what was the usual precaution taken by
other employers if the workmen had but one good eye. Since Lynskey, J.
did not deal with the evidence on practice and made no finding about the
precautions which should be taken in the ordinary case and without reference
to individual disability, I think that his judgment is essentially a finding that
the supply of goggles was obviously necessary when, a one-eyed man was
put to the kind of work to which the Appellant was put.
The facts on which the learned judge founded his conclusion, the known
risk of metal flying when this sort of work was being done, the position of
the workman with his eyes close to the bolt he was hammering and on the
same level with it or below it, and the disastrous consequences if a particle
of metal flew into his one good eye, taken in isolation, seem to me to justify
his conclusion. But even for a two-eyed man the risk of losing one eye is
a very grievous risk, not to speak of the foreseeable possibility that both
eyes might be simultaneously destroyed, or that the loss of one eye might
have as a sequel the destruction of vision in the other. It may be said that,
if it is obvious that goggles should have been supplied to a one-eyed work-
man, it is scarcely less obvious that they should have been supplied to all
the workmen, and therefore that the judgment rests on an unreal or insuffi-
cient distinction between the gravity of the risk run by a one-eyed man and
the gravity of the risk run by a two-eyed man. I recognize that the argument
has some force but I do not assent to it. Blindness is so great a calamity
that even the loss of one of two good eyes is not comparable; and the
risk of blindness from sparks of metal is greater for a one-eyed man than
for a two-eyed man, for it is less likely that both eyes should be damaged
than that one eye should, and the loss of one eye is not necessarily or even
usually followed by blindness in the other.
What precautions were needed to protect two-eyed men, and whether it
could properly be held, in the teeth of the evidence of the usual practice,
that goggles should have been supplied for them were not questions which
the learned judge had necessarily to decide. Therefore though there might
have been advantages of lucidity and cogency if the precautions needed for
the protection of the two-eyed men had first been considered and the increased
risk of damage to which the one-eyed man is exposed had been expressly
contrasted, I would allow the appeal and restore the judgment of Lynskey, J.
Lord Oaksey
MY LORDS,
I agree entirely with the opinion just delivered by my noble and learned
friend Lord Normand.
The duty of an employer towards his servant is to take reasonable care
for the servant’s safety in all the circumstances of the case. The fact that
the servant has only one eye if that fact is known to the employer and that
if he loses it he will be blind is one of the circumstances which must be
considered by the employer in determining what precautions if any shall
be taken for the servant’s safety. The standard of care which the law
demands is the care which an ordinarily prudent employer would take in
all the circumstances. As the circumstances may vary infinitely it is often
impossible to adduce evidence of what care an ordinarily prudent employer
would take. In some cases, of course, it is possible to prove that it is the
ordinary practice for employers to take or not to take a certain precaution,
but in such a case as the present, where a one-eyed man has been injured,
it is unlikely that such evidence can be adduced. The Court has, therefore,
8
to form its own opinion of what precautions the notional ordinarily prudent
employer would take. In the present case the question is whether an
ordinarily prudent employer would supply goggles to a one-eyed workman
whose job was to knock bolts out of a chassis with a steel hammer while the
chassis was elevated on a ramp so that the workman’s eye was close to
and under the bolt. In my opinion Mr. Justice Lynskey was entitled, to
hold that an ordinarily prudent employer would take that precaution. The
question was not whether the precaution ought to have been taken with
ordinary two-eyed workmen and it was not necessary, in my opinion, that
Mr. Justice Lynskey should decide that question—nor did he purport to
decide it, although it is true that at p. 52 (1) he stated the question in one
sentence too broadly.
The risk of splinters of steel breaking off a bolt and injuring a workman’s
eye or eyes may be and I think is slight and it is true that the damage to
a two-eyed workman if struck by a splinter in the eye or eyes may be
serious, but it is for the Judge at the trial to weigh up the risk of injury
and the extent of the damage and to decide whether, in all the circumstances,
including the fact that the workman was known to be one-eyed and might
become a blind man if his eye was struck, an ordinarily prudent employer
would supply such a workman with goggles. It is a simple and inexpensive
precaution to take to supply goggles, and a one-eyed man would not be
likely, as a two-eyed man might be, to refuse to wear the goggles. Mr.
Justice Lynskey appears to me to have weighed the extent of the risk and
of the damage to a one-eyed man and I am of opinion that his judgment
should be restored.
Lord Morton of Henryton
MY LORDS,
It cannot be doubted that there are occupations in which the possibility
of an accident occurring to any workman is extremely remote, while there
are other occupations in which there is constant risk of accident to the
workmen. Similarly, there are occupations in which, if an accident occurs,
it is likely to be of a trivial nature, while there are other occupations in
which, if an accident occurs, the results to the workman may well be fatal.
Whether one is considering the likelihood of an accident occurring, or the
gravity of the consequences if an accident happens, there is in each case a
gradually ascending scale between the two extremes which I have already
mentioned.
In considering generally the precautions which an employer ought to take
for the protection of his workmen it must, in my view, be right to take into
account both elements, the likelihood of an accident happening and the
gravity of the consequences. I take as an example two occupations in which
the risk of an accident taking place is exactly equal; if an accident does
occur in the one occupation, the consequences to the workman will be com-
paratively trivial; if an accident occurs in the other occupation the conse-
quences to the workman will be death or mutilation. Can it be said that
the precautions which it is the duty of an employer to take for the safety
of his workmen are exactly the same in each of these occupations? My
Lords, that is not my view. I think that the more serious the damage which
will happen if an accident occurs, the more thorough are the precautions
which an employer must take.
If 1 am right as to this general principle, I think it follows logically that
if A and B, who are engaged on the same work, run precisely the same risk
of an accident happening, but if the results of an accident will be more
serious to A than to B, precautions which are adequate in the case of B
may not be adequate in the case of A, and it is a duty of the employer to
take such additional precautions for the safety of A as may be reasonable.
The duty to take reasonable precautions against injury is one which is owed
by the employer to every individual workman.
9
In the present case it is submitted by counsel for the appellant that
although the appellant ran no greater risk of injury than the other workmen
engaged in the maintenance work, he ran a risk of greater injury. Counsel
points out that an accident to one eye might transform the appellant into
a blind man, and this event in fact happened. A similar accident to one
of his comrades would transform that comrade into a one-eyed man, a
serious consequence indeed but not so serious as the results have been to
the appellant
My Lords, the Court of Appeal thought that the one-eyed condition of
the appellant, known to his employers, was wholly irrelevant in determining
the question whether the employer did or did not take reasonable precau-
tions to avoid an accident of this kind. I do not agree. Applying the
general principle which I have endeavoured to state, I agree with your
Lordships and with Lynskey J. that the condition of the appellant was a
relevant fact to be taken into account.
There still remains, however, the question whether the learned Judge
rightly came to the conclusion that there was ” so far as this particular
” plaintiff was concerned, a duty upon the employers to provide goggles and
” require the use of goggles as part of their system “. He thought, as I
read his judgment, and as the Court of Appeal read it, that there was no
duty upon the employers to provide goggles for two-eyed men who were
employed on the same work as the appellant. With this latter view the
Court of Appeal agreed, and I take the same view. The evidence given
at the trial has already been analysed by my noble and learned friend on
the Woolsack, and I shall only add that, although Captain Paterson had
knowledge of about half-a-dozen eye injuries in the course of 32 years’
experience, he did not say whether any of them was of a serious nature.
The only other eye injury deposed to was that of Mr. Seeley. He was asked
by the learned Judge ” Were you off work at all with your eye? “, and he
answered ” Oh no “. ” Just that something got into your eye? ” said the
learned Judge. ” Yes, and I got it out” replied the witness.
My Lords, is it really possible to draw a distinction, on the facts of the
present case, between a two-eyed man and a one-eyed man? If the
employers were not negligent in failing to provide goggles for two-eyed men
doing this work, during all the years prior to this accident, did they become
negligent, so far as regards the appellant alone, as from the 22nd July, 1946,
when Mr. Boden, their Public Cleansing Officer, became aware for the
first time that the appellant had practically no vision in his left eye? The
loss of an eye is a most serious injury to any man, and I can only see two
alternatives in this case; (a) That the employers were negligent throughout
in failing to provide goggles and insist on their use by all men employed in
this type of work or (b) That the risk of an eye injury to any man was so
remote that no employer could be found negligent in failing to take these
precautions.
My Lords, I think the first alternative must be rejected. Applying the
test laid down by Lord Dunedin in Morton v. William Dixon Ltd. [19091]
S.C. 807, already quoted by my noble and learned friend Lord Normand, I
cannot find that the provision of goggles ” was a thing which was commonly
” done by other persons in like circumstances “. The evidence is conclusive
to the contrary. Nor does the evidence support the view that it was ” a thing
” which was so obviously wanted that it would be folly in anyone to neglect
” to provide it.” Although I recognise that the one-eyed condition of the
appellant was a factor to be taken into account, I think alternative (6) is
correct. I cannot reach the conclusion that a one-eyed man, but not a
two-eyed man, has a remedy against the employer for so serious an injury.
I think it must be both or neither, and on the facts of the present case I
agree with the conclusion of the Court of Appeal, that the evidence does
not establish any negligence on the part of the respondent..
I would dismiss the appeal.
10
MY LORDS,
The Appellant entered the service of the Respondents in 1942 as a fitter’s
mate or garage hand. He was then, in consequence of injuries received in an
air raid, so blind in his left eye as to be a one-eyed man for all practical
purposes. He was employed in the garage of the Respondents’ cleansing
department and one of his duties was to assist in the dismantling of motor
vehicles. On occasion this task, according to the usual practice of the garage,
involved the use of a steel hammer to remove rusted parts such as bolts.
There was a risk of chips of metal flying about when this procedure was
followed, but the workmen engaged upon it were not supplied with or re-
quired to use goggles or any other form of eye protection. On the 22nd June.
1946, the Appellant was medically examined on behalf of the Respondents
with a view to his becoming a member of the permanent staff and joining its
superannuation scheme. This examination revealed the state of his left eye
and. a further consequence of the Appellant’s war injuries, limited flexion and
loss of power at the right elbow. From that date, if not earlier, the Re-
spondents must be taken to have been aware of the defect in the Appellant’s
eye-sight. As a result of the report made by their medical officer the
Appellant was not accepted as a member of the permanent staff or allowed
to join the superannuation scheme, but no further action appears to have
been taken on foot of the report until the 16th May, 1947 when the Appellant
received notice terminating his employment on the 30th May, 1947. It is,
I think, clear from the evidence that this notice was a consequence of the
medical examination, but whether it would have been given had the
Appellant’s left eye not been injured is not made plain. On the 28th May,
two days before the expiry of the notice, the Appellant was employed dis-
mantling the chassis of what is known as a gulley cleaner. This vehicle had
been raised on a ramp and the Appellant was working underneath it when the
accident, out of which this litigation arises, took place. The Appellant, in an
endeavour to remove a rusty U-bolt securing one of the rear springs, was
striking it with a steel hammer when a piece of metal flew off and entered
his good, right eye, destroying the sight of it completely and making him
almost entirely blind. It should be added that there was nothing in the
evidence to suggest that the Appellant’s previous disabilities increased in any
way the chances of an accident, such as that described, occurring.
The Appellant’s action for damages in respect of the injury thus sustained
alleged negligence and breach of statutory duty on the part of the Respondents.
The latter cause of action was abandoned at an early stage and the negligence
relied upon was, to state the substance of the allegation, that the Respondents
had tailed in their duty to the Appellant in that he had not been provided
with and required to use suitable goggles for the protection of his eyes during
the work to which I have referred. At the trial Lynskey, J. found for the
Appellant. He held that the Respondents, knowing that the Appellant had
.only one useful eye, were, in the circumstances, under a duty to him to
provide and require the use of goggles, and that they had failed in that duty.
The Court of Appeal took a different view and ordered judgment to be entered
for the Respondents. This decision appears to have been based on two con-
clusions—first, that on the evidence there was no duty upon the Respondents
to provide goggles for the ordinary, two-eyed workman engaged upon this
work ; and, secondly, that there was therefore no such duty upon the Re-
spondents in respect of the Appellant because, though the consequences for
him were more serious, the risk of the accident occurring was no greater in
his case than it was in the case of his two-eyed fellows.
The proposition underlying this second conclusion is succinctly stated by
Asquith, L.J. in a passage which, I believe, represented the unanimous opinion
of the Court. It reads as follows: ” The disability can only be relevant to the
” stringency of the duty owed to the Plaintiff if it increases the risk to which
” the Plaintiff is exposed. A one-eyed man is no more likely to get a splinter
” or a chip in his eye than is a two-eyed man. The risk is no greater, but the
” damage is greater to a man using his only good eye than to a man using
” two good eyes; but the quantum of damage is one thing and the scope of
” duty is another. The greater risk of injury is not the same thing as the risk
” of greater injury, and the first thing seems to me to be relevant here.”
This view of the law raises a question of far-reaching importance for, if
sound, it must, in my opinion, pervade, if not the whole domain of negligence,
at least a very large part of it. It was, however, stated only in connection with
the duty of care imposed upon an employer of labour and it will be sufficient
for present purposes to consider it in relation to that particular branch of the
law and without engaging upon the wider question of its compatibility with the
concept of reasonable care.
My Lords, the general nature of the obligation resting upon an employer
regarding the safety of those who work for him under a contract of service is
not in dispute. It is, in the words of Lord Wright in Wilsons and Clyde Coal
Co. Ltd. v. English (19381 A.C. 57 at 84, ” to take reasonable care for the
” safety of his workmen “. In Smith v. Baker & Sons [11891] A.C. 325 at 362,
Lord Herschell described the same duty somewhat more fully but without any
material difference when he said: ” It is quite clear that the contract between
” employer and employed involves on the part of the former the duty of taking
” reasonable care to provide proper appliances, and to maintain them in a
” proper condition, and so to carry on his operations as not to subject those
” employed by him to unnecessary risk.” It is no less clear that the duty is
owed to the workman as an individual and that it must be considered in rela-
tion to the facts of each particular case.
Now if the law is as stated by the Court of Appeal it means that this duty of
reasonable care can be discharged without regard to the gravity of the harm
which is likely to fall upon the workman concerned. Reasonable care is, in-
deed, to be taken in respect of risk that may cause injury ; but the requisite
degree of care is determinable irrespective of the likely consequences for the
particular workman. In short, where the risk of an injury-producing event is
the same for all, the standard of reasonable care is the same towards all, and
the foreseeable extent of the resulting injury in any given case becomes
irrelevant to the issue of liability.
My Lords, this doctrine finds no support in authority and is. in my opinion,
entirely alien to the character of the relationship to which it has been applied
by the Court of Appeal. For workman and employer alike such expressions as
” risk “, ” danger ” and ” safety ” would lose much of their everyday meaning
if divorced from the results to life and limb. In this sphere they must surely,
in the very nature of things, connote consequences as well as causes. If a
bricklayer says that the risk is greater at the top of a building he means that
a slip there is more likely to bring him death or injury, and if he says that a
particular form of scaffolding is dangerous or not safe he means not merely
that it may fall, but that those who use it may get hurt. What may happen
to those engaged is no less important than how it may happen. It is the con-
sequences that necessitate the precautions in this field. The habitual associa-
tion of cause and effect in workshop and factory is perhaps nowhere more
clearly recognised than in the nature of some of the safeguards in common
use. Suitable goggles, for example, must be worn by those employed at grind-
ing machines. The particles that fly upward may strike the cheeks as readily
as the eyes, but the eyes are protected and the cheeks are not because the
eyes are delicate organs and the consequences of their being struck are likely
to be serious. Again, special precautions to prevent electric leakage are the
usual practice in places like wash-houses where those working are well
” earthed ” and a shock might prove fatal. Instances of this sort could be
multiplied, but I think it is enough to say that the employer’s duty to take
reasonable care for the safety of his workmen is directed—and, I venture 10
add, obviously directed—to their welfare and for that reason, if for no other,
must be related to both the risk and the degree of the injury. If that is so
and if, as was very properly conceded, the duty is that owed to the individual
and not to a class, it seems to me to follow that the known circumstance that
12
a particular workman is likely to suffer a graver injury than his fellows from
the happening of a given event is one which must be taken into consideration
in assessing the nature of the employer’s obligation to that workman.
For these reasons I am of opinion that the Court of Appeal was wrong and
that Lynskey, J. was right regarding the relevance of the Respondents’ know-
ledge of the Appellant’s eye defect. It remains to consider whether the learned
trial Judge’s finding of negligence is justified on the evidence. As I read his
judgment he did not find that the Respondents were under a duty to provide
goggles for other workmen engaged on the same work who had, or might be
taken as having, the use of both eyes. Whether the evidence would have
warranted such a finding is, I think, a question of some difficulty. On the one
hand, the whole trend of the testimony indicates that it was not the general
practice in garages and establishments of the kind to provide protection for the
eyes in such circumstances. On the other, it is clear that the wearing of
goggles would not have hampered the work in question and there is, I think,
material from which it might reasonably be inferred that, for men working
underneath these vehicles and in close proximity to the parts they were
stripping, the provision of suitable goggles would have been a sensible and
obvious way of keeping falling dirt and flying particles out of their eyes. I
incline to the view that a jury weighing these considerations would not be
perverse in finding that it was the duty of the employers to make such pro-
vision. The .point, however, is a balanced one and I will proceed on the
assumption that the Court of Appeal was right on this aspect of the case and
that the Respondents were not under any general obligation of this kind. So
assuming, the question then arises whether the additional element, the fact
that the Respondents knew that the Appellant was a one-eyed man, made it
proper to arrive at a different conclusion regarding their duty to him. In my
opinion it did. Not merely was the risk of this sort of accident occurring to
those engaged upon this work known; it was also known that that risk was
fraught with much graver consequence for the Appellant than for his two-
eyed companions. His chances of being blinded were appreciably greater and
blindness is an affliction in a class by itself which reasonable men will want
to keep from those who work for them if there are reasonable precautions
which can be taken to that end. To my mind whatever may be said of the
Respondents’ duty to their two-eyed employees, there was ample evidence
to sustain the view that they failed in their duty to the Appellant. I would
allow the appeal and restore the finding as to liability of the learned Judge.
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