McGhee v National Coal Board
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Wilberforce,Lord Simon of Glaisdale,Lord Kilbrandon,Lord Salmon |
| Judgment Date | 15 November 1972 |
| Judgment citation (vLex) | [1972] UKHL J1115-2 |
| Court | House of Lords |
| Docket Number | No. 3. |
| Date | 15 November 1972 |
[1972] UKHL J1115-2
Lord Reid
Lord Wilberforce
Lord Simon of Glaisdale
Lord Kilbrandon
Lord Salmon
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause McGhee against National Coal Board, that the Committee had heard Counsel as well on Monday the 9th, as on Tuesday the 10th, days of October last, upon the Petition and Appeal of James McGhee, residing at 15 Gardiner Crescent, Prestonpans, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Lord Ordinary in Scotland (Lord Kissen) of the 4th of June, 1971 and also an Interlocutor of the Lords of Session there of the First Division of the 17th of March 1972, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutors 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 the National Coal Board, 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 Interlocutors of the 4th day of June 1971 and of the 17th day of March 1972, complained of in the said Appeal, be, and the same are 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 award to the Pursuer the sum of £1,000 by way of damages, with interest thereon at five per centum per annum from the date of Citation 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 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: 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.
My Lords,
The Appellant was employed for many years by the Respondents as a labourer at their Prestongrange Brickworks. His normal work was emptying pipe kilns. On 30th March, 1967 (a Thursday), he was sent to empty brick kilns. Working conditions there were much hotter and dustier than in the pipe kilns. On Sunday, 2nd April, he felt extensive irritation of his skin. He continued to work on the Monday and Tuesday and then went to his doctor who put him off work and later sent him to a skin specialist. He was found to be suffering from dermatitis.
He sued the Respondents for damages alleging breaches on their part of common law duties to him. After proof before answer the Lord Ordinary assoilzied the Respondents. On 17th March, 1972, the First Division refused a reclaiming motion.
It is now admitted that the dermatitis was attributable to the work which the Appellant did in the brick kilns. The first ground of fault alleged against the Respondents in that the kilns ought to have been allowed to cool "sufficiently" before the Appellant was sent to remove the bricks from them. I agree with the Scottish Courts that this contention fails; the pleading lacks specification and the evidence is much too vague to prove any breach of duty.
The other ground of fault alleged raises a difficult question of law. It is said in Condescendence 3:
"It was their duty to take reasonable care to provide adequate washing facilities including showers, soap and towels to enable men to remove dust from their bodies. In each and all of said duties the defendant failed and so caused said disease. Had the defenders fulfilled said duties incumbent on them the pursuer would not have contracted said disease."
Originally the defence was twofold: (i) a denial of any such duty, and (ii) an argument that the disease was of a non-occupational character. But the Lord Ordinary decided against the Respondents in both of these matters and the Respondents accept these findings. So the Respondents' defence in the Inner House and before your Lordships has taken the unusual form that breach of duty is admitted, and that it is admitted that the disease is attributable to the work which the Appellant performed in the brick kiln, but that it has not been proved that failure to carry out the admitted duty caused the onset of the disease.
The medical witnesses are in substantial agreement. Dermatitis can be caused, and this dermatitis was caused, by repeated minute abrasion of the outer horny layer of the skin followed by some injury to or change in the underlying cells, the precise nature of which has not yet been discovered by medical science. If a man sweats profusely for a considerable time the outer layer of his skin is softened and easily injured. If he is then working in a cloud of abrasive brick dust, as this man was, the particles of dust will adhere to his skin in considerable quantity and exertion will cause them to injure the horny layer and expose to injury or infection the tender cells below. Then in some way not yet understood dermatitis may result.
If the skin is not thoroughly washed as soon as the man ceases work that process can continue at least for some considerable time. This man had to continue exerting himself after work by bicycling home while still caked with sweat and grime, so he would be liable to further injury until he could wash himself thoroughly. Washing is the only practicable method of removing the danger of further injury.
The effect of such abrasion of the skin is cumulative in the sense that the longer a subject is exposed to injury the greater the chance of his developing dermatitis: it is for that reason that immediate washing is well recognised as a proper precaution.
I have said that the man began working in hot and dusty conditions on the Thursday. It appears to be accepted that his work on the Thursday, Friday and Saturday, together with the fact that in these three days he had to go home unwashed, was sufficient to account for his condition on the Sunday, and that this together with what he did on the Monday and Tuesday caused the onset of dermatitis.
It was held in the Court of Session that the Appellant had to prove that his additional exposure to injury caused by his having to bicycle home unwashed caused the disease in the sense that it was more probable than not that this additional exposure to injury was the cause of it. I do not think that that is the proper approach. The Court of Session may have been misled by the inadequacy of the Appellant's pleadings. But I do not think that it is now too late to re-examine the whole position.
It has always been the law that a pursuer succeeds if he can shew that fault of the defender caused or materially contributed to his injury. There may have been two separate causes but it is enough if one of the causes arose from fault of the defender. The pursuer does not have to prove that this cause would of itself have been enough to cause him injury. That is well illustrated by the decision of this House in Wardlaw v. Bonnington Castings Ltd. 1956 S.C. (H.L.) 26. There the pursuer's disease was caused by an accumulation of noxious dust in his lungs. The dust which he had inhaled over a period came from two sources. The defenders were not responsible for one source but they could and ought to have prevented the other. The dust from the latter source was not in itself sufficient to cause the disease but the pursuer succeeded because it made a material contribution to his injury.
The Respondents seek to distinguish Wardlaw's case by arguing that then it was proved that every particle of dust inhaled played its part in causing the onset of the disease whereas in this case it is not proved that every minor abrasion played its part.
In the present case the evidence does not shew—perhaps no one knows—just how dermatitis of this type begins. It suggests to me that there are two possible ways. It may be that an accumulation of minor abrasions of the horny layer of the skin is a necessary precondition for the onset of the disease. Or it may be that the disease starts at one particular abrasion and then spreads, so that multiplication of abrasions merely increases the number of places where the disease can start and in that way increases the risk of its occurrence.
I am inclined to think that the evidence points to the former view. But in a field where so little appears to be known with certainty I could not say that that is proved. If it were then this case would be indistinguishable from Wardlaw's case. But I think that in cases like this we must take a broader view of causation. The medical evidence is to the effect that the fact that the man had to cycle home caked with grime and sweat added materially to the risk that this disease might develop. It does not and could not explain just why that is so. But experience shews that it is so. Plainly that must be because what happens while the man remains unwashed can have a causative effect, though just how the cause operates is uncertain. I cannot accept the view expressed in the Inner House that once the man left the brick kiln he left behind the causes which made him liable to develop dermatitis. That seems to me quite inconsistent with a proper interpretation of...
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Table of Cases
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Table of cases
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