Bonnington Castings Ltd v Wardlaw

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Reid,Viscount Simonds,Lord Tucker,Lord Keith of Avonholm
Judgment Date01 March 1956
Judgment citation (vLex)[1956] UKHL J0301-2
Docket NumberNo. 2.
Date01 March 1956

[1956] UKHL J0301-2

House of Lords

Viscount Simonds

Lord Reid

Lord Tucker

Lord Keith of Avonholm

Lord Somervell of Harrow

Bonnington Castings Limited
and
Wardlaw

Upon Report from the Appellate Committee, to whom was referred the Cause Bonnington Castings Limited against Wardlaw, that the Committee had heard Counsel, as well on Tuesday the 17th, as on Wednesday the 18th and Thursday the 19th, days of January last, upon the Petition and Appeal of Bonnington Castings Limited, a company incorporated under the Companies Acts and having a place of business at Bonnington Road, Leith, Edinburgh, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Lord Ordinary in Scotland (Lord Wheatley) of the 21st of July 1954 and also an Interlocutor of the Lords of Session there of the First Division of the 25th of March 1955, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutors might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of John Wardlaw (steel dresser) lodged in answer to the said Appeal; and due consideration 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 Her Majesty the Queen assembled, That the said Interlocutors of the 21st day of July 1954 and of the 25th day of March 1955, complained of in the said Appeal, be, and the same are hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.

Viscount Simonds

My Lords,

1

I have had the advantage of reading the Opinion which my noble and learned friend. Lord Reid, is about to deliver and I agree with it in all respects. I shall therefore do no more than move that this appeal be dismissed with costs.

Lord Reid

My Lords,

2

The Respondent was employed by the Appellants for eight years in the dressing shop of their foundry in Leith, and while employed there he contracted the disease of pneumoconiosis by inhaling air which contained minute particles of silica. He ceased work on 12th May, 1950. The Lord Ordinary (Lord Wheatley) held the Appellants liable for this and awarded £2,000 damages. The First Division by a majority (Lord Carmont and Lord Russell, the Lord President dissenting) adhered to the Interlocutor of the Lord Ordinary.

3

The Appellants produce steel castings. These are made by pouring molten metal into moulds which consist of sand with a very high silica content. When the casting has cooled it is freed from sand so far as possible and then annealed. The annealed casting has a certain amount of the sand adhering to it or burnt into it and the surface of the casting is somewhat irregular. It is then necessary to remove these irregularities and smooth the surface of the casting, and in the course of doing this any adhering sand is also removed. This is done in the dressing shop by three types of machine. In two of these machines, floor grinders and swing grinders, the means employed are grinding wheels made of carborundum, and in the third a hammer or chisel is driven by compressed air so that it delivers some 1,800 blows per minute. There are several of each type of machine in the dressing shop and all of them produce dust, part of which is silica from the sand which they remove. The particles of this sand are originally sufficiently large not to be dangerous, because it is only exceedingly small particles of silica which can produce the disease—particles which are quite invisible except through a powerful microscope. But either in the annealing process or by the working of these machines or at both stages (the evidence on this is inconclusive) a number of the original particles are broken up and the dust produced by all of these machines contains a certain proportion of the dangerous minute particles of silica.

4

Most of the dust from the grinders can be sucked into ducts or pipes, but during the time when the Respondent contracted his disease there was no known means of preventing the dust from the pneumatic hammers from escaping into the air, and it is now admitted that no form of mask or respirator had then been invented which was effective to protect those exposed to the dust.

5

Throughout his eight years in the Appellants' service the Respondent operated one of these pneumatic hammers and he admits that he cannot complain in so far as his disease was caused by the dust from his own or any of the other pneumatic hammers. As there was no known means of collecting or neutralizing this dust, and as it is not alleged that these machines ought not to have been used there was no breach of duty on the part of the Appellants in allowing this dust to escape into the air. The Respondent makes no complaint with regard to the floor grinders because the dust-extracting plant for them was apparently effective so far as that was possible, and it seems that any noxious dust which escaped from these grinders was of negligible amount. But the Respondent alleged, and it is admitted, that a considerable quantity of dust escaped into the air of the workshop from the swing grinders, because the dust-extraction plant for these grinders was not kept free from obstruction as it should have been. It frequently became choked and ineffective.

6

Regulation 1 of the Grinding of Metals ( Miscellaneous Industries) Regulations, 1925, provides "No racing dry grinding or glazing ordinarily causing the evolution of dust into the air of the room in such a manner as to be inhaled by any person employed shall be performed without the use of adequate appliances for the interception of the dust as near as possible to the point of origin thereof and for its removal and disposal so that it shall not enter any occupied room… ."

7

It is admitted for the Appellants that they were in breach of this Regulation in that for considerable periods dust from the swing grinders escaped into the shop where the Respondent was working owing to the appliances for its interception and removal being choked and therefore inadequate. The question is whether this breach of the Regulation caused the Respondent's disease. If his disease resulted from his having inhaled part of the noxious dust from the swing grinders which should have been intercepted and removed then the Appellants are liable to him in damages: but if it did not result from that then they are not liable.

8

The Lord Ordinary and the majority of the First Division have dealt with this case on the footing that there was an onus on the defenders, the Appellants, to prove that the dust from the swing grinders did not cause the pursuer's disease. This view was based on a passage in the judgment of the Court of Appeal in Vyner v. Waldenberg Brothers Limited [1946] K.B. 50:

"If there is a definite breach of a safety provision imposed on the occupier of a factory, and a workman is injured in a way which could result from the breach, the onus of proof shifts on to the employer to show that the breach was not the cause. We think that that principle lies at the very basis of statutory rules of absolute duty"

9

(per Scott, L.J., at p. 55). Vyner was working a circular saw when part of his thumb was cut off. The saw failed in several respects to comply with the Woodworking Machinery Regulations, and in particular the guard was not properly adjusted. The accident happened before the passing of the Law Reform (Contributory Negligence) Act, 1945, and the main defence was contributory negligence. The arguments of Counsel are not reported, but it does not appear to have been suggested that the accident might have happened even if the guard had been properly adjusted. There was, however, a question whether the duty to see that the Regulations were complied with had been delegated to Vyner. Of course, the onus was on the Defendants to prove delegation (if that was an answer) and to prove contributory negligence, and it may be that that is what the Court of Appeal had in mind. But the passage which I have cited appears to go beyond that and, in so far as it does so, I am of opinion that it is erroneous.

10

It would seem obvious in principle that a pursuer or plaintiff must prove not only negligence or breach of duty but also that such fault caused or materially contributed to his injury, and there is ample authority for that proposition both in Scotland and in England. I can find neither reason nor authority for the rule being different where there is breach of a statutory duty. The fact that Parliament imposes a duty for the protection of employees has been held to entitle an employee to sue if he is injured as a result of a breach of that duty, but it would be going a great deal farther to hold that it can be inferred from the enactment of a duty that Parliament intended that any employee suffering injury can sue his employer merely because there was a breach of duty and it is shown to be possible that his injury may have been caused by it. In my judgment, the employee must in all cases prove...

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