Doughty v Turner Manufacturing Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DIPLOCK,LORD JUSTICE HARMAN |
| Judgment Date | 29 November 1963 |
| Judgment citation (vLex) | [1963] EWCA Civ J1129-6 |
| Date | 29 November 1963 |
| Court | Court of Appeal |
[1963] EWCA Civ J1129-6
In The Supreme Court of Judicature
Court of Appeal
Lord Pearce
Lord Justice Harman and
Lord Justice Diplock
Mr A.E. JAMES, Q.C. and Mr S. BROWN (instructed by Messrs Park, Nelson & Dennes & Co., Agents for Messrs Harvey, Mabey & Seagroatt, Birmingham) appeared on behalf of the Plaintiff (Respondent).
Mr E. BRIAN GIBBENS, Q.C. and Mr M. UNDERHILL (instructed by Messrs Barlow, Lyde & Gilbert, Agents for Messrs Thompson, Warmington & Cave, Wolverhampton) appeared on behalf of the Defendants (Appellants).
LORD PEAECE (read by Lord Justice Harman): The Defendants appeal from a Judgment of Mr Justice Stable awarding of the Plaintiff£150 damages for personal injuries suffered in an accident which occurred during the Plaintiff's employment at the Defendants' factory.
The scene of the accident was the heat-treatment department to which the Plaintiff had gone for the purpose of delivering a message to the foreman. In that department there stood two baths or cauldrons 3ft. lOins. high and 3ft. 4-ins. square. They had thick walls intended to resist great heat so that the internal area of each bath was only 18 by 31 inches. Into those baths was placed sodium cyanide powder. Two upright electrodes, lowered by chains into the bath, passed an electric current through the powder which became a molten liquid and attained the very great heat of 800 degrees Centigrade, eight times the heat of boiling water. The process consisted of subjecting metal parts to heat by immersing them in the liquid. In order to conserve the heat in each bath there were two loose covers which rested side by side over it. These covers were made of a compressed compound of asbestos and cement known as Sindanyo which, until this accident occurred, was thought to be a safe and suitable material for such a purpose. It had been so used in England and the United States for over 20 years. The Defendants bought the covers for the particular purpose froiL the reputable manufacturers of the baths.
Immediately before the accident the electrodes in the bath were being changed by a workman standing on the side of the bath. He, or some other of the four workmen in the vicinity, must have inadvertently knocked the loose asbestos cement cover so that it slid into the bath and disappeared from sight beneath the molten liquid. ITobody regarded this as a dangerous matter or withdrew from the neighbourhood of the bath. Two men actually moved closer to peer into the bath andsee what had happened. After an interval, which one witness, put at one minute and another at two minutes, the molten liquid erupted from the bath, injuring the bystanders by its great heat and setting fire to objects on which it fell. The Plaintiff was at that moment standing by the side of the foreman not far from the bath.
The reason for the eruption was discovered by experiments which Imperial Chemical Industries Ltd., who had installed similar covers, carried out as a result of this accident. It then appeared that whenever any cover made of compound asbestos cement was immersed in the molten liquid and subjected to a temperature of over 500 degrees it created such an eruption. At that temperature the compound, which contains hydrogen and oxygen, undergoes a chemical change which either creates or releases water. This water turns to steam and produces an explosion or eruption which throws some of the hot molten liquid out of the bath. Thus the immersion of the cover in the bath was inevitably followed by an eruption of liquid from the bath. The same result would occur if something that contained actual moisture in it (as opposed to what might be called the potential moisture which is thus precipitated by great heat) was immersed; if, for instance, this cover, which is porous and capable of holding water, had been immersed when wet. But it was not suggested that this particular cover contained actual moisture at the time of the accident, since it had been standing in the hot room for some days beforehand.
The learned Judge held that, as the evidence showed, the Defendants did not appreciate that the immersion of the cover in the liquid would produce an explosion and he held that they were not to blame for not appreciating it. He continued: "The result simply is this that if, for example, the bath contained an amount of this substance and it exploded whilst it was being used in the ordinary way, I think the Defendants would have escaped liability". That is clearly right.
He went on to hold, however, that it must have been common knowledge that thero were substances which, if dropped into such immense heat, would produce an explosion, although not all substances would do so; and that, therefore, "every possible precaution should be taken to see that nothing was dropped into the bath which could have that result". He therefore held that the inadvertence of one of the Defendants. workmen in upsetting the cover into the bath was "negligent in the true sense of the word; that is to say, it constituted an actionable wrong".
No authorities were cited to the learned Judge at the trial and at that date, we are told, the Judgment of the Privy Council in the Wagon Mound, reported in 1961 Appeal Cases, 388, had not yet been reported. In the light of that important case which gave such a different complexion to cases where seemingly harmless acts result in unforeseeable calamities, I think that the learned Judge, if it had been called to his attention in the case, might have reached a different conclusion. In the Wagon Mound case the Board held that Re Polemis should no longer be regarded as good law and that the essential factor in determining liability for the consequences of a tortious act of negligence is whether the damage is of such a kind as the reasonable man should have foreseen. "After the event", said Lord Simonds giving the Judgment of the Board, at page 424, "even a fool is wise. But it is not the hindsight of a fool; it is the foresight of the reasonable man which alone can determine responsibility".
In the present case the evidence showed that nobody supposed that an asbestos cement cover could not safely be immersed in the bath. The learned Judge took the view, which Mr James concedes was correct, that if the Defendants had deliberately immersed this cover in the bath as part of the normal process, they could not have been held liable for the resulting explosion. The fact that they inadvertently knockedit into the bath cannot of itself convert into negligence that which they were entitled to do deliberately. In the then state of their knowledge, for which the learned Judge, rightly on the evidence, held them in no way to blame, the accident was not foreseeable. In spite of Mr James' able argument I am of opinion that they cannot, therefore, be hold liable for negligence.
Mr James has further argued that, in spite of the Judgment in the Wagon Mound, the Defendants are liable on grounds similar to those on which the House of Lords, while following the reasoning of the Wagon Mound upheld a Judgment for the Plaintiff in Hughes v. Lord Advocate, reported in 1963 2 Weekly Law Reports, 779. In that case an allurement to children in the roadway constituted by a red lamp, a hole in the ground and a tarpaulin tent caused an unforeseeable explosion and injury by burns. Their Lordships held, however, that although the exact chain of eventr was unforeseeable, the type of accident and the injuries "though perhaps different in degree, did not differ in kind from injuries which might have resulted froman accident of a foreseeable nature". (See Lord Reid's Speech at page 781)."Of course the pursuer has to prove that the defender's fault caused the accident and there could be a case where the intrusion of a new and unexpected factor could be regarded as the cause of the accident rather than the fault of the defender. But that is not this case. The cause of this accident was a known source of danger, the lamp, but it behaved in en unpredictable way". He concludos with these words: "This accident was caused by a known source of danger but caused in a way which could not have been foreseen and in my judgment that affords no defence".
In the present case the potential eruptive qualities of the covers when immersed in great heat were not suspected and they were not a known source of danger, but Mr Jamesargues that the cause of injury was the escape of the hot liquid from the bath, and that injury through the escape of liquid from the bath by splashing was foreseeable. The evidence showed that splashes caused by sudden immersion, whether of the metal objects for which it was intended or any other extraneous/object, were a foreseeable danger which should be carefully avoided. The falling cover might have ejected the liquid by a splash and in the result it did eject the liquid, though in a more dramatic fashion. Therefore, he argues, the actual accident was merely a variant of foreseeable accidents by splashing. It is clear, however, both by inference and by one explicit observation, that the learned Judge regarded splashes as being in quite a different category. Moreover, according to the evidence it seems that the cover never did create a splash: it appears to have slid into the liquid at an angle of some 4-5 degrees and dived obliquely downwards. Further, it seems somewhat doubtful whether the cover falling only from a height of 4 or 6 inches, which was the difference in level between the liquid and the sides, could have splashed any liquid outside the bath. And when (if ever) the Plaintiff was in the area in which he could be hit by a mere splash (apparently the liquid being heavy, if splashed, would not travel further than a foot from the bath) the cover had already slid into the liquid without splashing. Indeed, it seems from the Plairtiff's...
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