GEORGINA BEATRICE CORK (Widow) (suing as the Administratrix of the estate of Albert Edward Samuel Langhorn Cork, deceased.) v KIRBY MACLEAN, Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE DENNING,LORD JUSTICE ROMER |
| Judgment Date | 30 June 1952 |
| Judgment citation (vLex) | [1952] EWCA Civ J0630-2 |
| Docket Number | "X" 1951 c. No. 94. |
| Court | Court of Appeal |
| Date | 30 June 1952 |
[1952] EWCA Civ J0630-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
LORD JUSTICE SINGLETON,
LORD JUSTICE DENNING, and
LORD JUSTICE ROMER.
Counsel for the Appellants: Mr R. Bowen, Q.C., and MR H.J. Davies, instructed by Messrs Kimbers Williams & Co.
Counsel for the Respondent: MR F.H. Lawton, instructed by Messrs Ellison & Co.
This is an appeal of the Defendants from a judgment of Mr Justice Donovan. The case was before him on the 17th and 18th March, and he gave his judgment on Monday, the 7th April, of this year. By that judgment he held that the Administratrix of the estate of Albert Edward Samuel Langhorn Cork was entitled to damages owing to negligence of breach of statutory duty on the part of the Defendants who were his employers at the time he met with his death. The submission made on behalf of the Appellants is that, upon the facts, judgment should have been given in their favour, or, alternatively, that they should not have been held wholly to blame.
It is not an easy case. After hearing full argument upon the matter, I am of opinion that there are elements for consideration which were not present to the mind of the learned Judge at the time when he gave his judgment.
Mr Cork was a painter employed by Kirby MacLean, Ltd., and on the 14th January, 1950, he was working for them as a painter helping in the redecoration of the factory premises of Davey Paxman, Ltd., in Colchester, He had to paint the inside of the roof of a part of the factory. There were others employed as well. It might have been possible to have had some sort of oradle for the painters to stand in, but instead of that, for reasons which were considered good, a sort of scaffolding or platform was erected on a crane which ran from one end of the building to the other. That platform was about 20 ft. above ground, Mr Cork was working upon it on the 14th January, 1950, when he fell to the floor of the factory, and he was killed.
The case for the widow, who brought the action on her own behalf and on behalf of her child, was that the Defendants were in breach of their statutoryduty, a duty which they owed to their workpeople under and by virtue of the Building (Safety, Health and Welfare) Regulations of the year 1948. It was said there were breaches of those Regulations in three respects; One arises under Regulation No. 22: "Every working platform from which a person is liable to fall more than 6 feet 6 inches shall be … (c) at least 34 inches wide if the platform is used for the deposit of material."
A question arose upon the trial as to whether the platform was used for the purpose of the deposit of material. The learned Judge was satisfied that it was so used, and he came to the conclusion that there was a breach of the Regulation; in other words, the platform was not as wide as it should have been.
The other Regulation is No. 24 (1): "Subject to paragraphs (3), (4) and (5) of this Regulation, every side of a working platform on working place, being a side thereof from which a person is liable to fall a distance of more than 6 feet 6 inches, shall be provided with a suitable guard-rail or guard-rails of adequate strength, to a height of at least 3 feet above the platform or place and above any raised standing place on the platform, and with toe-boards up to a sufficient height being in no case less than 8 inches and so placed as to prevent so far as possible the fall of persons, materials and tools from such platform or place."
Mr Justice Donovan found that there were breaches of that Regulation in two respects: First, that there was no guard-rail; and, secondly, that there were no toe-boards; and he found, too, that the exceptions to that Regulation dealt with in paragraphs (3), (4) and (5) did not apply. Thus upon his findings there were threebreaches of the Regulation on the part of the employers, the Defendants.
One difficulty which arises is that Mr Cork was a man who suffered from epilepsy. He was 39 years of age at the time of his death; he had been under treatment for epilepsy for many years; prior to his marriage he told the one who became his wife of this trouble; she gave evidence before/learnedthe Judge, who accepted her as an honest witness.
The position appears to have been this, that Mr Cork was under regular treatment from his doctor, who also was called as a witness; he had epileptic fits, and he was in a condition in which one might come on at any time; he had been told by his doctor that he must not work at any height above ground, and he had promised to follow that advice. It is, of course, extraordinarily difficult for a painter to get work if he cannot work above ground level; Mr Cork had had difficulties with previous employers; I mean that he had had fits when he had been in other employ; his last employment prior to his employment with the Defendants had terminated because they had no more work for him; they had finished the contract upon which they were engaged.
He had been employed by the Defendants on two days only prior to the day on which he met with his death. He had not told them that he was subject to fits; on the findings of the learned Judge he had a fit when he was working on the platform 20 ft. above ground, and he fell; so that Mr Justice Donovan came to the conclusion in one sense that there were two causes of his death, though he did not put it quite in that way. He found that an epileptic fit caused Mr Cork to fall, and he found, or I think he must have found, that another cause was thefact that the Defendants were in breach of their statutory duties in one or all of the respects which I have mentioned.
On his findings the learned Judge gave judgment in favour of the Plaintiff, assessing damages under the Law Reform (Misoellaneous Provisions) Act in the sum of £294, 3s. 6d., and under the Fatal Accidents Act in the sum of £1,500, of which £500 was to go to the infant child.
Having found that there was no guard, Mr Justice Donovan said: "The immediate cause was Cork's fall from the platform, and the effect of what the Court of Appeal said in Vyner v. Waldenberg Bros. seems to me to be that I must treat the breach of the Statutory Regulations as occasioning that fall, unless the Defendants establish the opposite."
Later in his judgment the Judge said: "The Defendants therefore say, as I think they must, that had the deceased told them of his affliction he would never have been on the platform at all. In my view they must go further: they must establish that Cork would have fallen off the platform even had handrails and toe-boards been provided. But this is pure speculation. There is an obvious chance that toe-boards might have saved him. It is also possible that he had some sudden, if short, warning of the fit, sufficient to enable him to grip a handrail."
I do not regard the learned Judge's statement of the law as wholly accurate. He based it upon the words of Lord Justice Scott in the case of Vyner v. Waldenberg Bros., Ltd., in which the learned Lord Justice cited a passage from the judgment of the Lord Chief Justice sitting in this Court in the case of Lee v. Nursery Furnishings, Ltd., which is reported in 1945, Volume 1 of the All England Law Reports at page 387.In the course of his judgment in that case (a dangerous machinery case) the Lord Chief Justice said this at page 390: "In the first place I think one may say this, that where you find there has been a breach of one of these safety regulations and where you find the accident complained of is the very class of accident that the regulations are designed to prevent, a court should certainly not be astute to find that the breach of the regulation was not connected with the accident, was not the cause of the accident. I think here that the evidence is clear enough on one point."
In the case of Vyner v. Waldenberg Bros., Ltd., which was a case arising out of an accident in using a circular saw, and in which the Court had consisted of Lord Justice Scott, Lord Justice MacKinnon and Lord Justice Morton, Lord Justice Scott giving the judgment of the Court, which is reported in 1946 1 K.B.D. at page 50, said at page 54: "The judge at the trial found that there had been a number of breaches by the defendants with regard to both the riving knife and the guard of this circular saw, and he indicated that had the case stopped there it would have meant judgment for the plaintiff. We agree with him, but we go further. If there is a definite breach of a safety provision imposed on the cocupier 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." And the learned Lord Justice repeated that which Lord Goddard, the Lord Chief Justice, had said in Lee v. Nursery Furnishings, Ltd.
I am satisfied myself that those words of Lord Justice Scott in Vyner v. Waldenberg Bros., Ltd., go a little further than was necessary for the judgment in that case, and that they cannot be accepted as a true statement of the onus in every case arising under the Factories Act; indeed, in the case of Mist v. Toleman & Sons (A Firm), which is reported in 1946, Volume 1 of the All England Law Reports at page 139, Lord Justice MacKinnon (who was a Member of the Court in all three cases) said at page 141, after reference to the words of Lord Justice Scott: "Counsel for the plaintiff argues that that is a pronouncement as regards any breach of any of the provisions of the Factories Act and that, therefore, inasmuch as it is established that there was a breach of...
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