Flower v Ebbw Vale Steel, Iron & Coal Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Atkin,Lord Thankerton,Lord Wright,Lord Alness |
| Judgment Date | 24 July 1935 |
| Judgment citation (vLex) | [1935] UKHL J0724-1 |
| Court | House of Lords |
[1935] UKHL J0724-1
House of Lords
Lord Atkin.
Lord Tomlin.
Lord Thankerton.
Lord wright.
Lord Alness.
After hearing Counsel, as well on Friday, the 31st day of May last, as on Monday, the 3rd of June last, upon the Petition and Appeal of Claude Flower, of 101, Canning Street, Cwm, in the County of Monmouth, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 30th of January 1934, except so far as regards the words "It is further ordered that the Plantiff be at liberty to apply within one month from the date hereof for an Award under the Workmen's Compensation Act.", might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order, except so far as aforesaid, 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 Ebbw Vale Steel Iron and Coal Company 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 His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 30th day of January 1934, in part complained of in the said Appeal, be, and the same is hereby, Reversed, and that Judgment be entered for the Appellant for the sum of Two thousand five hundred pounds (£2,500) with Costs: 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 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 Cause be, and the same is hereby, remitted back to the King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
I have had the advantage of reading the opinion about to be expressed by my noble and learned friend Lord Wright, and in consequence can confine what I have to say to a few words. The case involved two points: was the workman guilty of contributory negligence?; was contributory negligence a defence to a claim based upon a breach of a statutory duty. Your Lordships came to the conclusion at the hearing that contributory negligence was not established: and the second point therefore was not argued. On the first point the learned Judge propounded the legal question as being whether the Plaintiff by the exercise of that degree of care whic an ordinary prudent workman would have shown in the circumstances could have avoided the result of the Defendants' breach of duty. He then proceeded to acquit the workman of any lack of care other than disobedience to orders. For the reasons given in my noble and learned friend's opinion I agree that disobedience to orders was not proved: and I am not prepared to differ from the learned trial Judge that no other lack of ordinary care was established. In these circumstances the Plaintiff's claim must succeed: and I prefer to express no opinion upon the further matter raised by my noble and learned friend as to the degree of care or rather of lack of care of the workman that must be established before the employer if at all can defend himself on a claim for breach of statutory duty. The cases he refers to, in particular the Australian case of Bowden v. Butterfield 38 C.L.R. 354, were not discussed by counsel in pursuance of your Lordships'ruling: and as in my opinion the question raised by them does not arise in the present case, it seems to me better to reserve its consideration for another occasion. In my opinion the Appeal should be allowed, the Order of the Court of Appeal and the Judgment of 14th July, 1933, should be set aside and Judgment should be entered for the Plaintiff for £2,500 with costs. The Appellant must have his costs here and in the Court of Appeal.
My Lords,
I am asked by my noble and learned friend Lord Tomlin to say that he concurs in the opinion which I have delivered.
My Lords,
I concur in the opinion expressed by the noble and learned Lord on the Woolsack.
With reference to the argument based on the concurrent findings of fact in the Courts below, I desire to add that, in my opinion, there is neither rule nor practice in your Lordships' House which gives to such concurrent findings any element of inviolability beyond the weight which naturally attaches to such unanimity of judicial opinion. In the Judicial Committee, on the other hand, there is a practice—not a rule—of not disturbing such concurrent findings of fact, except under special circumstances.
My Lords,
The Appellant was at the time of the accident a workman employed by the Respondents. He was at the time engaged in cleaning a machine which was dangerous and which, as is now admitted, was not sufficiently fenced so as to comply with Section 10 of the Factory and Workshop Act, 1901. His action was based on the well-known doctrine that, when a workman is injured in consequence of the breach by an employer of his statutory duty under the Factory Act, he has at common law a right of action against his employer. The nature of that right was fully examined by this House in the case of the Lochgelly Iron and Coal Co., Ltd. v. Maomullen, 1934, A.C. 1, where the question was whether the employer in a case of this character could properly be said to be guilty of personal negligence or wilful default within the meaning of these words in Section 29 of the Workmen's Compensation Act, 1925, so that the workman's claim at common law was not barred; this House held that he could, but also pointed out that though the matter might well be held to fall within these words in their context in that Act, and though the breach could properly be described as statutory negligence, the duty to comply with the requirements of the Factory Act was an absolute duty in the sense that it could not be delegated and also in the sense that proof of actual negligence was not necessary; it was only necessary for the workman to establish the breach of the statutory duty which in law constituted the cause of action. In that case the House did not need to consider, and did not consider, what defences, if any, were in such a case open to the employer as against the injured workman.
That question, however, falls to be considered in the present Appeal. The trial Judge and the Court of Appeal have held that the employer is entitled to succeed on a defence which may be compendiously described as that of contributory negligence. The Appellant contends that the judgment against him should be set aside and judgment entered in his favour for the damages which the Judge has assessed in the event of the Appellant succeeding at £2,500. The contention on behalf of the Appellant is based on two alternative grounds, one of which is that the defence of contributory negligence is not open to an employer in this type of action; the alternative ground of Appeal is that (even if the defence of contributory negligence is open) the finding of the Judge, on which his judgment was in fact based, and on his view of the law could only be based, was that the accident was caused by the Appellant's disobedience of instructions, but that as there was no, or at least, no sufficient, evidence to justify that finding the Appeal must succeed.
Your Lordships decided to deal first with this latter contention before proceeding to consider the more fundamental question of law raised by the former contention. As your Lordships are of opinion that the Appellant is entitled to succeed on his latter contention, it has become unnecessary for your Lordships to hear any arguments on the more fundamental question, or to express any opinion about it, and hereinafter I shall assume, though the question is reserved for decision in this House if it should ever arise in the future, that contributory negligence, properly defined and properly established, is a defence in this action. But it must be determined what is the proper definition in this connection cf contributory negligence and if it has been properly established.
I must first explain what I understand the Judge to have actually decided, and also the principles of law on which in my opinion he proceeded. Apart from the crucial question whether the Appellant disobeyed instructions given to him, the relevant facts as found by the Judge are not in doubt.
The machine was one for the rolling or levelling of metal sheets. The precise technical details need not now be detailed with any particularity. It is enough to describe the machine as one in which there were two rows, an upper and a lower, of steel rollers revolving at about 90 revolutions a minute, the metal sheet being introduced at the front between the two rows. The upper row was at a height of about 3 feet from the ground. The top row would obviously involve danger if a hand or finger were caught between the first and second roller, the contrary motions of which at what was called the bite would draw in the finger or arm and crush it; the same would be true of the bottom row at the bottom. With the object of obviating the danger, a copper bar had been fixed to meet the complaint of the Factory Inspector as a fence in front of the rollers; previously there had only been a black metal bar connecting the tops of the two sides of the frame of the machine. The Factory Inspector was not satisfied with this fence, which was fixed early in 1932; but no further fence had been fixed when the accident occurred in...
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