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367
PAEIS
APPELLANT;
AND
STEPNEY
BOBOUGH
COUNCIL .
RESPONDENTS.
LORD OAKSEY,
LORD
(E,)
1950
Oct. 26, 30;
NOV. 2;
Dec. 13.
368
HOUSE OF LORDS
[1951]
A . C.
369
370
H. L. (E.)
1950
~
.
STEPNEY
COUNCIL.
HOUSE OP LORDS
[1951]
A . C.
371
PARIS
Appeal were wrong in rejecting the fact of his only having one
eye
as a relevant matter to be taken into account and in ruling
J
.
.
STEPNEY
BOBOUGH
COUNCIL.
372
H. L. (B.)
1950
pA
v.
BOKOUOH
COUNCIL.
HOUSE OF LORDS
[1951]
A . C.
373
- L - (E-)
1950
p ARIS
v.
RTPPNEY
BOBOUQH
COUNCIL.
374
H. L. (E.)
X950
~
v.
BOROUGH
COUNCIL.
HOUSE OP LORDS
[1951]
A . C.
375
376
H. L. (E.)
1950
~
,
HOUSE OP LORDS
[1951]
A. 0.
377
for he might well hesitate to do so. But being asked, " Have H. L. (E.)
" you considered as to whether it was dangerous to do this sort
1950
" of job without eye protection? ", he answered, " Well, we were
~
" always working through years just doing the same thing. It
v,
" became natural to get in there without protection ". Then he
STEPNEY
0
r
t
was asked, " You did not think about it? ", and answered, " We
" had been doing it for years and never thought of iu ". 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 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 into his eyes.
The evidence in regard to practice appears to me overwhelm
ing. But however unlikely such an event may be in such an
organized 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 thirty-two 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.
BOROUGH
COUNCIL.
L o r d ~^ o n d 8
378
HOUSE OF LORDS
[1951]
H. L. (B.)
On this evidence, my Lords, no other conclusion can be
I960
reached t h a n t h a t 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
STEPNEY
no such duty was because the risk was not one against which a
COUNCIL.
reasonable employer was bound to take precautions. I t was from
-
this premise that the inquiry should proceed, whether, nevertheless, in the case of a one-eyed m a n they were bound to do so.
This clearly must depend on whether it should be manifest to
the reasonable employer t h a t 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 t h a t 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
m a n might, if a splinter struck him in the eye, suffer an injury
which in any scale would be considered very grave. H e 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. B u t , however grave, even calamitous, the damage
t h a t he suffered by the loss of one eye, the two-eyed m a n would
have no remedy.
The question therefore is not of a contrast
between damage in the case of one m a n trivial and in the case
of another very grave, but rather of an accident so serious in its
consequence 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 work
m a n assumed in doing his job. Eisk cannot be assessed in terms
of scientific accuracy; one speaks of " conceivable " danger and
" p r o b a b l e " danger and the boundaries are blurred; one must,
I concede, have regard to the degree of injury t h a t an accident
may cause, a difficult task enough.
Taking these things into
consideration and starting, as the 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 t h a t precaution in a reasonable
employer, I do not think there was evidence on which it could
fairly be held t h a t the same reasonable employer was bound at his
peril to provide goggles for one-eyed men. For these reasons I
A . C.
379
H. L. (E.)
^50
PABIS
STEPNEY
BOEdUGH
COTJNOIL.
380
HOUSE OP LORDS
H. L. (E.)
1950
T
v.
BtToij8*
[1951]
A . C.
381
considerations include all those facts which could affect the con- H. L. (E.)
duct of a reasonable and prudent m a n and his decision on the
1350
precautions to be taken. Would a reasonable and prudent m a n
~
be influenced, not only by the greater or less probability of an
.
accident occurring, but also by the gravity of the consequences if
T^^OO*
a n accident does occur? I n Mackintosh v . Mackintosh (19) Lord
COUNCIL.
Neaves, considering a case of alleged negligence in muir-burning, L o r d Norm and.
said: " I t m u s t be observed t h a t in all cases the amount of care
" which a prudent m a n will take m u s t vary infinitely according
" to circumstances. No prudent m a n in carrying a lighted candle
" through a powder magazine would fail to take more care t h a n
" i f 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 t h a t may be occasioned " . I n Northwestern Utilities Ld. v. London Guarantee and Accident
Co.
Ld. (20) 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 t h a t duty involves m u s t be proportioned to
" the degree of risk involved if the duty should not be fulfilled " .
The learned editor of Salmond on Torts (10th ed.), p. 438, n. (q),
similarly s a y s : '' There are two factors in determining the mag" nitude of a r i s k t h e seriousness of the injury risked, and the
" likelihood of the injury being in fact caused " .
These are,
in my opinion, accurate s t a t e m e n t s both of the law and of the
ordinary m a n ' s conduct in taking precautions for his own safety.
" No reasonable m a n handles a stick of dynamite and a walking" stick in the same way " (Winfield on Torts (5th ed.), p . 412).
The court's task of deciding what precautions a reasonable and
prudent m a n would take in the circumstances of a particular case
may not be easy. Nevertheless the judgment of the reasonable
and prudent m a n should be allowed its common everyday 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 t h e 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 m a n would take and
t h e precautions which reasonable and prudent m e n do in fact
take would lessen the respect which the administration of justice
(19) 1864, 2 M. 1357, 1362-3.
[1951] A. C.
382
H. L.. (B.)
.1960
.
STEPNEY
COUNCIL.
Lord l^Tmanci.
. HOUSE OP LORDS
[1951]
not
assuming a risk.
I am unable, therefore, to reject the conclusion arrived at by
Lynskey, J., on the ground on which the Court of Appeal pro
ceeded. B u t t h a t does not end the appeal. For there remains
the question whether, assuming t h a t the fact t h a t the appellant
was to the knowledge of the respondents a one-eyed m a n 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 Ld. (22) by Lord President Dunedin. T h a t
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. I t was, of course, a Scotch case, b u t in my
opinion there is no difference between the law of Scotland and
the law of England on this point. The Lord President said (23):
" Where the negligence of the employer consists of what I may
" call a fault of omission, I think it is absolutely necessary t h a t
" the proof of t h a t fault of omission should be one of two kinds,
" either to show t h a t the thing which he did not do was a thing
" which was commonly done by other persons in like circum" stances, or to show t h a t it was a thing which was so obviously
" wanted t h a t it would be folly in anyone to neglect to provide
" it " . The rule is stated with all the Lord President's trenchant
lucidity. I t contains an emphatic warning against a facile finding
t h a t a precaution is necessary when there is no proof t h a t it is
one taken by other persons in like circumstances. B u t it does
not detract from the test of the conduct and judgment of the
reasonable and prudent man. If there is proof t h a t a precaution
is usually observed by other persons, a reasonable and prudent
m a n will follow t h e usual practice in the like circumstances.
Failing such proof the test is whether the precaution is one which
the reasonable and prudent m a n would think so obvious t h a t it
was folly to omit it.
(21) [1946] 2 All E. E. 333, 336.
(22) 1909 S. C. 807.
A . C.
383
384
HOUSE OP LORDS
[1951]
H. L. (E.) risk of damage to which the one-eyed man is exposed had been
expressly contrasted, I would allow the appeal and restore the
1950
judgment of Lynskey, J.
PARIS
r.
STEPNEY
BOROUGH
A . ,C.
385
386
H.: L. (E.)
1950
~
v,
B8OH
HOUSE OP LORDS
[1951]
A . C.
'S 8 7
facts of the present case, between a two-eyed man and a one- H- L. (B.)
eyed man? If the employers were not negligent in failing to
1950
provide goggles for two-eyed men doing this work, during all the
~
years prior to this accident, did they become negligent, so far as
v.
regards the appellant alone, as from July 22, 1946, when BQBODGH
Mr. Boden, their public cleansing officer, became aware for the COUNCIL.
first time that the appellant had practically no vision in his left Lord Morton
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 Ld. (24), 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 any" one to neglect to provide it ". Although I recognize that the
one-eyed condition of the appellant was a factor to be taken into
account, I think alternative (b) 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
respondents.
I would dismiss the appeal.
LORD MACDERMOTT [after stating the facts: ] My Lords, the
decision of the Court of Appeal appears to have been based on
two conclusionsfirst, that on the evidence there was no duty on
the respondents to provide goggles for the. ordinary, two-eyed
workman engaged on this work; and, secondly, that there was
therefore no such duty on the respondents in respect of the
appellant because, though the consequences for him were more
(24) 1909 S. C. 807, 809.
388
HOUSE OF LORDS
[1951]
H. L. (E.) serious, the risk of the accident occurring was no greater in his
I960
case than it was in the case of his two-eyed fellows.
~
The proposition underlying the second conclusion is succinctly
v.
stated by Asquith, L.J., in a passage which, I believe, represented
tne unan mous
BORODOH
i
opinion of the court. It reads as follows (25):
COUNCIL.
'' The plaintiff's disability could only be relevant to the stringency
Lord
" of the duty owed to him if it increased the risk to which he
' " was 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
" i s no greater although the damage may be greater to a man
with only one good eye than to a man with two good eyes. But
" the quantum of damage is one thing and the scope of the
" duty is another.
A greater risk of injury is not the same
" thing as a risk of greater injury; the first alone is relevant to
" liability ".
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 connexion with the duty of care
imposed on 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 on 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 & Clyde Coal Co. Ld. v. English (26),
" to take reasonable care for the safety of his workmen ". In
Smith v. Charles Baker & Sons (27), Lord Herschell described
the same duty somewhat more fully but without any material
difference when he said: " I t 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
(25) [1950] 1 K. B. 320, 324.
(26) [1938] A. C. 57, 84.
A . C.
389
to the gravity of the harm which is likely to fall upon the workman
concerned. Eeasonable 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 injuryproducing event is the same for all, the standard of reasonable
care is the same towards all, and the foreseeable extent of the
H. L. (B.)
1950
v_
STBPNEX
COUNCIL.
;7
Lord
resulting injury in any given case becomes irrelevant to the issue MacDermott.
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 work
man 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 recognized
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 directedand, I venture to 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 a particular workman is likely to
suffer a graver injury than his fellows from the happening of a
[1951] A. C.
27
390
HOUSE OP LORDS
[1951]
v.
BOBOBOH
COUNCIL.
w a s wron
A. C.
391
Judge-
BIS
Appeal
allowed.
STEPNEY
BOROUGH
COUNOIL.
Solicitors: Thomas
V. Edwards;
W. H. Thompson.
[HOUSE OF LORDS]
H. L. (E.)*
1950
PRESTON-JONES
APPELLANT;
NOV. 6, 7;
Dec
AND
PEESTON-JONES
li
RESPONDENT.