McCann v J. R McKellar (Alloys) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Guest,Lord Denning,Lord Upjohn,Lord Donovan,Lord Diplock |
| Judgment Date | 23 January 1969 |
| Judgment citation (vLex) | [1969] UKHL J0123-2 |
| Court | House of Lords |
| Docket Number | No. 1. |
| Date | 23 January 1969 |
[1969] UKHL J0123-2
House of Lords
Lord Guest
Lord Denning
Lord Upjohn
Lord Donovan
Lord Diplock
Upon Report from the Appellate Committee, to whom was referred the Cause McCann (A.P.) against J. R. McKellar (Alloys) Limited, that the Committee had heard Counsel on Tuesday the 19th day of November last upon the Petition and Appeal of Henry McCann (Assisted Person), residing at 260 Mosspark Drive, Glasgow, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland of the First Division of the 25th of January 1968, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor 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 J. R. McKellar (Alloys) 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 25th day of January 1968, complained of in the said Appeal, be, and the same is hereby, Recalled: And it is further Ordered, That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland with a Direction to apply the Verdict of the Jury: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Expenses incurred by him in respect of the Action in the Court of Session 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.
My Lords,
The Appellant was awarded £775 damages by a jury sitting with Lord Thomson. Upon a motion for a new trial by the Respondents the First Division of the Court of Session unanimously set aside the verdict, entered up judgment for the Respondents and assoilzied them from the conclusions of the Summons. The Appellant concedes that if the First Division were entitled to set aside the jury's verdict he could have no valid objection to the decree of absolvitor pronounced in virtue of the Jury Trials Amendment (Scotland) Act, 1910. No question arises as to the amount of damages awarded.
The Appellant was a steel dresser employed by the Respondents in their factory at Glasgow. On 17th February, 1966, in the course of his employment he was assisting another employee, Cairney, to unload a lorry load of steel ingots. These ingots were between two and three feet long and weighed approximately one hundredweight each. They were four inches square at one end and at the other end they tapered to what was described as a "bottle neck". The ingots rested in piles on pallets which were unloaded from the lorry by means of a mechanical fork lift truck. As these ingots were being unloaded from the lorry some of them fell off the pallet on to the ground. The Appellant and Cairney then proceeded to lift the ingots up from the ground and replace them on the pallet. This operation was successfully carried out with some ingots. But as the two men were lifting one of the ingots Cairney suddenly and without warning let go his end and the whole weight of the ingot fell on the Appellant and his finger was jammed between the ingot he had been holding and another ingot on the pallet causing serious injury.
The Appellant's case against the Respondents was based on allegations of fault against Cairney for whom the Respondents were vicariously liable. It was alleged that it was Cairney's duty to take reasonable care for the safety of the Appellant. His failure was in two respects: (1) he failed to keep a firm grip of the ingot and he let it fall, and (2) he failed to warn the Appellant before letting the ingot go that he was about to do so.
Although the Respondents tabled a plea to the relevancy this was not persisted in and the trial proceeded upon a general issue of fault.
The Appellant gave evidence supporting his account of the accident on Record. He called Cairney as a witness on his behalf who also described what happened. He said that he lifted the bottle neck end of the ingot which had a lot of sharp edges where the metal had been poured into the ingot. The Appellant lifted the square end. The Appellant went round the other side of the pallet to place his end on the pallet but one of the sharp ends of the ingot jagged Cairney's finger and he jerked his hand away and it left the Appellant with the full weight of the ingot which fell on his finger. Although Cairney was wearing asbestos gloves the ragged end caused him momentary pain like a pin prick. He was holding the ingot with one hand cupped inside the other and on feeling the prick he "automatically" let go. He described the pain as like a pin prick which caused a "wee blotch of blood". It all happened in a flash which gave him no time to give any warning to the Appellant.
At the conclusion of the evidence for the Appellant the Respondents' counsel moved that the case should be withdrawn from the jury but the learned judge declined to accede to this request. The Respondents led no evidence.
The Lord President in the course of his opinion, with which the other judges concurred, said:
"The pursuer's own case … really amounts to this, that an emergency was suddenly created in which I can find no evidence upon which any reasonable jury could have held that Cairney was negligent in not holding on to the end of the ingot".
Although the Lord President has applied the correct test to the consideration of the jury's verdict he has not, in my view, done justice to the Appellant's case. The Lord President describes Cairney's action as "automatically and instinctively" and he seems to have held that this acquitted him of negligence. But the Appellant's case was that Cairney failed to exercise reasonable care for the safety of his fellow employee. Lord Reid in ( McGull v. National Coal Board 4th May, 1954, unreported) said "To find that a person was negligent implies that he could have done otherwise if he had taken more care and if it was not physically possible for him to do otherwise than he did, I do not see how he can be held to have acted negligently". For Cairney to say that his action was instinctive and automatic is no more than saying that he jerked his hand away without thinking. The jury were entitled to accept Cairney's account of how he came to release his grip of the ingot, but they were also entitled, if they saw fit, to consider his evidence as to what alternative courses were open to him to avoid the ingot falling on the Appellant's hand. He said in evidence:
"Q. Couldn't you just have adjusted your hand or dropped the end of the ingot into the other hand?
A. I could possibly have done that, yes, but as I say that was what I done at the time, I wasn't thinking of anything at the time, I was only thinking of getting injured so I am not going to get injured for nothing.";
and again:
"Q. Couldn't you just have moved your hand, something of that sort, so as to avoid droping your end?
A. As I say I could have but I wasn't thinking of anything at the time.
Q. If you had tried that wouldn't that have given you time to say, 'Watch it Harry' or 'Watch it McCann', something like that?
A. Yes, I could have done that.
Q. You just wanted to avoid being pricked, is that right?
A. That is correct.
Q. And you just let it go?
A. Yes."
The jury were entitled on this evidence to take the view that Cairney thoughtlessly, when he felt the slight prick, let his end go. He must have known that if he did so, the full weight would fall on the Appellant with consequent danger to him. The operation was in a very restricted area and he would only have had to hold the ingot for a few seconds when he could have rested his end on the pallet, or at least have given a warning to McCann. Instead he selfishly, in order to avoid a continuing pin prick, let the ingot go.
These were all matters which the jury were entitled to take into consideration in deciding whether Cairney's action showed a disregard for the safety of the Appellant. In my view, there was evidence upon which the jury could hold that Cairney was negligent and that his negligence caused the accident.
I would allow the appeal and restore the jury's verdict.
My Lords,
If I understand the law of Scotland correctly, it was incumbent on the pursuer to call some witness to corroborate him. Cairney was the only witness available. So he called Cairney. But that does not mean that the pursuer had to accept Cairney as a witness of truth. It would be very unfair on the pursuer if the law of Scotland not only compelled him to call Cairney, but also compelled him to accept every word that Cairney said. I am glad to find that such is not the law. Robertson's case in this House shows that the jury were entitled to accept part of Cairney's evidence and to reject part, just as they thought right. The reason is because corroboration does not mean corroboration in every detail. It only means corroboration in some material particular. In this case it was obviously material to prove that the pursuer was injured by the dropping of an ingot by Mr. Cairney. That was a material particular upon which the...
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