Gibson (A.P.) v British Insulated Callender's Construction Company Ltd

JurisdictionEngland & Wales
JudgeLord Reid,Lord Morris of Borth-y-Gest,Viscount Dilhorne,Lord Diplock,Lord Kilbrandon
Judgment Date25 October 1972
Judgment citation (vLex)[1972] UKHL J1025-1
Date25 October 1972
CourtHouse of Lords

[1972] UKHL J1025-1

House of Lords

Lord Reid

Lord Morris of Borth-y-Gest

Viscount Dilhorne

Lord Diplock

Lord Kilbrandon

Gibson
and
British Insulated Callenders' Construction Co. Ltd.

Upon Report from the Appellate Committee, to whom was referred the Cause Gibson (A.P.) against British Insulated Callender's Construction Company Limited, that the Committee had heard Counsel as well on Wednesday the 21st, as on Thursday the 22d, days of June last, upon the Petition and Appeal of Jean Steven Stewart Gibson (Assisted Person), residing at 19 Ferguson Avenue, Brechin, as an individual and as tutrix and administratrix-at-law of her pupil children Caroline Gibson and Joseph Thorne Gibson both residing with her at 19 Ferguson Avenue, aforesaid, praying That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland of the First Division of the 19th of October 1971 and also the Interlocutor referred to therein, namely, an Interlocutor of the Lord Ordinary (Lord Leechman) of the 13th of November 1970, so far as regards the words " sustains the sixth plea-in-law for the defenders and finds that the proportion of blame attributable to the deceased is one-third and to the defenders two-thirds; therefore decerns against the defenders for payment to (1) the pursuer as an individual of the sum of £3,661: 16:6d., (2) the pursuer as tutrix aforesaid to Caroline Gibson the sum of £1,500 and (3) the pursuer as tutrix aforesaid to Joseph Thorne Gibson, the sum of £1,600 in full of the conclusions of the Summons," might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutors, so far as aforesaid, might be reversed, varied or altered, or that the Petitioner 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 Case of British Insulated Callender's Construction 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 Her Majesty the Queen assembled, That the said Interlocutor of the 19th day of October 1971, complained of in the said Appeal, be, and the same is hereby, Recalled: And it is further Ordered, That the Case be, and the same is hereby, remitted back to the Court of Session in Scotland with a Direction to grant Decree to the Appellant in her individual capacity for £5,492.74, in her capacity as tutrix for her daughter Caroline for £2,250 and in that capacity for her son Joseph for £2,400, with interest thereon at the rate of five per centum per annum from the date of the Interlocutor of the Lord Ordinary, namely the 13th day of November 1970, until this day. And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Expenses incurred by her in respect of the Action in the Court of Session and also the Costs incurred by her 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 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.

Lord Reid

My Lords,

2

The Appellant is the widow of a man who was killed when he fell from the top of an electricity pylon while in the employment of the Respondents. The Appellant sued at common law and also in respect of an alleged breach by the Respondents of paragraph 7 (1) of The Construction (General Provisions) Regulations, 1961, ( 1961 S.I. 1580). That paragraph provides that every working place shall so far as is reasonably practicable be made and kept safe for any person working there.

3

Before the Lord Ordinary the Appellant failed at common law but succeeded on the issue of breach of Regulations. The First Division reversed the decision of the Lord Ordinary and assoilzied the defenders, the present Respondents. The Appellant contends that the decision of the Lord Ordinary should be restored.

4

The facts are not in dispute. The deceased was one of a squad engaged in erecting tall electricity pylons. When the accident happened a pylon had been completed and the men were engaged in removing a derrick used during its erection. It was held by guys and it was during the removal of one of these guys that the deceased fell to his death. The topmost part of the pylon was a horizontal steel beam six to nine inches wide. The top of the derrick projected six feet or more above the level of the beam and in order to disengage the guys the deceased had to stand on the beam and reach upwards. He had no means of support other than the derrick pole and it was some nine inches in diameter—too large for him to grasp. But he could lean against it. Obviously this was dangerous work even for a skilled man and the question is whether within the meaning of the Regulations it was reasonably practicable to make the place safe for him.

5

Safety belts were provided but the deceased did not wear his belt. It appears from the evidence that men engaged in such work generally did not wear a belt. Although wearing a belt would prevent a fatal accident, it has considerable disadvantages. I think that a fair estimate of the evidence is that it would make a fall more likely and that if a man fell while wearing a belt he would probably sustain fairly severe injury, though he would not be killed.

6

The Appellant pleaded in the Condescendence that the Respondents could and should have instructed the deceased to wear his belt, and that if they had done so he would have worn it and there would have been no accident. She failed to prove that ground of fault and she did not specify any other means by which the working place could have been made safe.

7

The main difficulty in this case is caused by the majority decision of this House in Nimmo v. Alexander Cowan & Sons 1967 S.C. (H.L.) 79 when it was held that under this Regulation it is unnecessary for the pursuer to aver or prove means by which a working place could have been made safer because the onus is on the defender to prove that he had made the place as safe as was reasonably practicable. So the defender has to prove a negative—that it was not reasonably practicable to make the place safer. That must I think mean that the defender need do no more than aver this in general terms, and lead evidence in equally general terms. His skilled witnesses might say that they had been unable to think of any method of making the place safer and, in the absence of successful cross-examination, that would discharge the onus on the defender. But it would be open to the cross-examiner to ask—Have you considered method A and why is that not reasonably practicable? If he could get an admission that method A was reasonably practicable and would have prevented the accident the defender would have failed to discharge the onus and the pursuer would succeed. But if he could not get such an admission he could not lead positive evidence that method A was reasonably practicable because he had not made any averment to that effect.

8

That way of conducting a case is so unlike the ordinary procedure in Scottish courts that it puts counsel in a difficulty. If the pursuer's counsel thinks that he can prove that method A was reasonably practicable, he must either aver that in his Condescendence and undertake the onus of proving it or say nothing in his Condescendence and rely on his cross-examination. The wiser course may often be to make the averment and lead positive evidence to establish the practicability of method A. But then what happens if he fails to prove that method A was practicable? That is the problem in this case.

9

In the absence of authority I would think that the answer is reasonably clear. Offering to prove method A does not discharge the general onus on the defender. If the pursuer fails to prove the practicability of method A the defender must still shew at least in general terms that no other method is reasonably practicable.

10

In the present case in her Condescendence 4 the Appellant averred the method of using a safety belt. But the defenders nevertheless averred in answer that "it was not reasonably practicable to increase the safety of the deceased's place of work at the top of the tower". And then they went on to aver that the erection of a platform there on which the deceased could stand was not reasonably practicable. Were they absolved from proving the averment which I have quoted by reason of the fact that the pursuer had made her averment about safety belts?

11

It is argued that that is the effect of the decision of this House in Hall v. Fairfield Shipbuilding Co. Ltd. 1964 (H.L.) 72. At that time it had not been decided where the onus lay and the pursuer averred that a certain method of keeping a passage clear was reasonably practicable. It does not appear to have been argued or suggested at any stage in the Court of Session ( 1962 S.C. 434) that there was any onus on the defenders. It was there held that the method averred by the pursuer was reasonably practicable and would have avoided the accident. So the pursuer succeeded.

12

That decision was reversed by a majority in this House on the ground that it had not been proved that the accident was caused by the failure of the defender to adopt the method which the pursuer said ought to have been used. But in the course of my dissenting speech I made...

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13 cases
  • Md Against Amec Group Limited
    • United Kingdom
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    • 16 December 2016
    ...about this. (iv) The Cases [41] Turning to the cases, Miss Shand first referred to Gibson v British Insulated Callenders Construction Co. 1973 SC(HL) 15, and within that case, to the case of Nimmo v Alexander Cowan & Sons 1967 SC(HL) 79. Gibson concerned the failure of a defender to plead a......
  • Reclaiming Motion By Melville Dow Against Amec Group Limited
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    ...with the matter was a correct application of the decision of the House of Lords in Gibson v British Insulated Callenders Construction Co 1973 SC (HL) 15 in relation to a provision (such as section 53(1) of the 2005 Act) imposing a duty on a defender to ensure safety so far as is reasonably ......
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    ...Ltd [2005] CSIH 48; 2005 1 SC 523 Dulieu v White & Sons [1901] 2 KB 669 Gibson v British Insulated Callender Construction Co Ltd 1973 SC (HL) 15; 1973 SLT 2 Gillies v Glynwed Foundries Ltd 1977 SLT 97 Gorris v Scott (1874) LR 9 Ex 125 Groves v LordWimborne [1898] 2 QB 402 Hall v City of Edi......
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    ...system of pleading, reliance is placed upon some observations of my own in Gibson v. British Insulated Callenders' Construction Co. Ltd. 1973 S.L.T.2 at pp. 7 to 9, when I expressed disenchantment with the way in which the method of pleading had, in that particular case, operated, as I thou......
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