Boyle v Kodak Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Lord Hodson,Lord Upjohn,Lord Diplock |
| Judgment Date | 29 April 1969 |
| Judgment citation (vLex) | [1969] UKHL J0429-1 |
| Date | 29 April 1969 |
| Court | House of Lords |
[1969] UKHL J0429-1
Lord Reid
Lord Morris of Borth-y-Gest
Lord Hodson
Lord Upjohn
Lord Diplock
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Boyle (A.P.) against Kodak Limited, that the Committee had heard Counsel, as well on Tuesday the 11th, as an Wednesday the 12th and Thursday the 13th, days of February last, upon the Petition and Appeal of Patrick Leslie Boyle (Assisted Person), of 424 Pinner Road, North Harrow, in the London Borough of Harrow, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 15th of June 1967, so far as regards the words "It is Ordered that the Judgment of the Honourable Mr. Justice Chapman be Affirmed and this Appeal dismissed with Costs", might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Kodak Limited, 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 Order of Her Majesty's Court of Appeal, of the 15th day of June 1967 so far as complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice with a Direction to assess the Appellant's loss and to award to the said Appellant one-half of the sum assessed as damages: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Courts below, 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 Costs incurred by the said Appellant in the Courts below, and also the Costs incurred by him in respect of the said Appeal to this House be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments.
My Lords,
The Appellant sustained injury when he fell off a ladder while engaged in painting the outside of a large oil storage tank which was some 30 feet high. Other means of access had been used for the lower parts of the cylindrical wall, but the upper part had to be painted by a man standing on a ladder the top of which rested on a rail round the roof of the tank. For safety it was necessary to lash the top of the ladder to this rail to prevent it from slipping sideways, and the accident occurred while the Appellant was going up the ladder in order to lash it. For some reason never discovered the ladder slipped when he was about 20 feet up and he fell with the ladder.
No negligence was proved. It was not proved that the Respondents ought to have foreseen any danger involved in this method, and there is no evidence that any negligence on the part of the Appellant caused or contributed to the fall of the ladder. But the Appellant asserted and the Respondents admitted that in the circumstances this method involved a breach of statutory duty. Regulation 29(4) of the Building (Safety Health and Welfare Regulations) 1948 provides:
"Every ladder shall so far as practicable be securely fixed so that it can move neither from its top nor from its bottom points of rest. If it cannot be so securely fixed it shall where practicable be securely fixed at the base or if such fixing at the base is impracticable a person shall be stationed at the base of the ladder to prevent slipping."
It so happened that there was a staircase running round the outside of the tank by which it would have been possible for the Appellant to reach the top of the tank, and he could then have lashed the top of the ladder to the rail, come down the staircase and then mounted the ladder. In that way he could have avoided mounting the ladder before it had been fixed in the manner which complied with the Regulation. The Appellant's case is that it was practicable to do this and that therefore there was a breach of the Regulation when he mounted the unlashed ladder at the time of the accident. I do not have to consider whether that is right because the Respondents have admitted that there was then such a breach.
It is common ground that these Regulations imposed absolute duties on both the Appellant and the Respondents. And it is admitted that the Appellant, though himself in breach, was entitled to sue the Respondents relying on their absolute liability created by their breach. There is no difficulty in this case about causation: clearly this breach was the cause of the accident.
The doctrine of absolute liability, which was invented by the Courts, can lead to absurd results when coupled with the employer's vicarious liability. It would be absurd if, notwithstanding the employer having done all he could reasonably be expected to do to ensure compliance, a workman, who deliberately disobeyed his employer's orders and thereby put the employer in breach of a Regulation, could claim damages for injury caused to him solely by his own wrongdoing. So the Courts have quite properly introduced a qualification of the employer's absolute liability. A principle of law has been established that, although in general the employer is under absolute liability in respect of such a breach, the employer may have a defence to an action against him by an employee who is also in breach. In Manwaring v. Billington [1952] 2 All E. R. 747 the plaintiff had been instructed by his employers not to ascend any ladder without putting sacking under it to prevent it from slipping and lashing it at the top. He disobeyed this instruction, ascended a ladder without taking these precautions and sustained injuries when the ladder slipped. His action against his employers failed. My noble and learned friend, Lord Morris of Borth-y-Gest, then sitting in the Court of Appeal, said:
"The mere fact that the employer must be held to have been in breach of the Building Regulations would not in this case by itself warrant our concluding that the judge's holding was wrong. Particularly is this so when it is remembered that the employer only became in breach of the regulations because of the omissions of the plaintiff to perform duties which were properly and reasonably assigned to him. This employer could not be expected personally to fix every ladder used by his men during painting operations, nor personally to supervise every operation in the course of which the use of ladders was necessary. If he gave clear and adequate directions as to lashing and securing ladders, he was doing what a reasonable employer was entitled to do. I would deem it incongruous and irrational if, on the facts as found by the learned judge, the plaintiff could, in effect, successfully say to his employer: 'Because of my disregard of your reasonable instructions I have brought about the position that you are in breach of your statutory obligations, and so I claim damages from you because of such breach'."
This was farther developed by Lord Pearson (then Pearson J.) in Ginty v. Belmont Building Supplies Ltd. [1959] 1 All E.R. 414 who said (at page 424):
"In my view, the important and fundamental question in a case like this is not whether there was a delegation, but simply the usual question: Whose fault was it? I shall refer to some of the decided cases to demonstrate what I have said. If the answer to that question is that in substance and reality the accident was solely due to the fault of the plaintiff, so that he was the sole author of his own wrong, he is disentitled to recover. But that has to be applied to the particular case and it is not necessarily conclusive for the employer to show that it was a wrongful act of the employee plaintiff which caused the accident. It might also appear from the evidence that something was done or omitted by the employer which caused or contributed to the accident; there may have been a lack of proper supervision or lack of proper instructions; the employer may have employed for this purpose some insufficiently experienced men, or he may in the past have acquiesced in some wrong behaviour on the part of the men. Therefore, if one finds that the immediate and direct cause of the accident was some wrongful act of the man, that is not decisive. One has to inquire whether the fault of the employer under the statutory regulations consists of, and is co-extensive with, the wrongful act of the employee. If there is some fault on the part of the employer which goes beyond or is independent of the wrongful act of the employee, and was a cause of the accident, the employer has some liability."
That was followed by a decision of this House, Ross v. Associated Portland Cement Manufactures, Ltd. [1964] 1 W.L.R. 768. There the employers had failed to provide the right equipment, and with some hesitation the deceased workman and another man decided to proceed without it. In so doing there was a breach of another of these Regulations. The employers' case was that they were not at all to blame because they were entitled to leave it to the deceased to decide what to do, and so the sole cause of the accident was his well intentioned but mistaken decision to proceed. But this House held that the failure of the employers to take any steps to see that...
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