McGovern v British Steel Corporation
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE NEILL,LORD JUSTICE RALPH GIBSON |
| Judgment Date | 21 March 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0321-3 |
| Docket Number | 86/0323 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 March 1986 |
[1986] EWCA Civ J0321-3
The Master Of The Rolls
(Sir John Donaldson)
Lord Justice Neill
and
Lord Justice Ralph Gibson
86/0323
1979 M. No. 243
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MIDDLESBROUGH DISTRICT REGISTRY
(MR. JUSTICE GLIDEWELL)
Royal Courts of Justice.
MR. GRAEME WILLIAMS, Q.C. and MR. G. BARRY STEWART (instructed by Messrs. Goodswens of Middlesbrough) appeared on behalf of the (Plaintiff) Respondent.
MR. JOHN B. DEBY, Q.C. and MR. MICHAEL TAYLOR (instructed by Messrs. Turner Kenneth Brown, London agents for Messrs. Jackson Monk & Rowe of Middlesbrough) appeared on behalf of the (Defendant) Appellant.
This appeal raises questions as to the proof of a sufficient causal connection between a back injury suffered by the plaintiff in his work and a proved breach on the part of his employers of a statutory duty imposed upon them for the purpose of protecting workers from injury. Mr. Justice Glidewell on the 19th February, 1985 held that the defendants were not liable in negligence but that the defendants were in breach of regulation 30(2) of the Construction (Working Places) Regulations 1986 and that that breach was in law a cause of the plaintiff's injury. An order had been made for the trial of the issue of liability before that of damages and accordingly directions were given for assessment of damages. The defendants appeal against the finding of liability.
The plaintiff's injury occurred in the following circumstances. Mr. McGovern was working as a rigger at the Boss plant of B.S.C. at Lackenby in Cleveland. On the 20th October, 1976 the plaintiff was walking on a flat walkway which was part of an extensive scaffolding within a very large building. The drawing in the papers shows this walkway as an ordinary scaffolding structure of metal tubes and couplers with the surface of the walkway constructed of scaffold boards. One side of the walkway ran along the sheet metal cladding of the outer surface of the building at a height of some 20 metres above the floor. The industrial plant within the building was in operation and molten metal was being moved at various levels in ladles by overhead transporters. The walkway was about four feet wide. Toe-boards were in place on each side of the walkway as required by the regulations. The toe-boards were ordinary scaffold boards eight inches wide, one and a half inches thick and of varying lengths. They were secured to the upright standards, which carried the guardrails, by means of a clip, one board overlapping the next.
The plaintiff had used the walkway three times on the 20th October, 1976 before the accident occurred and had noticed nothing wrong. He was going down to have his midday meal with Mr. John Smith, a pipe fitter, when the plaintiff tripped and fell over a scaffold board which was lying flat on the walkway towards the plaintiff's righthand side. The board had become displaced from its position as a toe-board. There is no evidence to show how or why that happened. The plaintiff suffered no injury from the trip or the fall. He picked himself up and decided to move the board to one side so that no one else could trip over it. He bent down to move it. As he lifted one end it appeared that the other end was jammed. He then "got like a whip lash from the board and just got a severe pain in [his] back." He was helped down and reported the accident.
It is alleged that that "whip lash from the board" caused the plaintiff to suffer an injury which produced an acute prolapse of a lumber disc resulting in unremitting back pain; and that the plaintiff was thereby forced to give up his work to which he had been unable to return by the date of the statement of claim in March 1980. By the time of trial in February 1985 he was in work as deck supervisor on an oil rig.
The plaintiff's claim was put on both breach of statutory duty and negligence. As to statutory duty, it was alleged that the defendants were in breach of various duties under the Construction (Working Places) Regulations 1966 and of the Construction (General Provisions) Regulations 1961 including failure to ensure that every part of the scaffold was so secured in position as to prevent so far as was practicable accidental displacement (regulation 11 of the 1966 regulations); failure to replace as soon as was practicable the displaced toe-board (regulation 28(4) of the 1966 regulations); failure to keep the walkway free from unnecessary obstruction, namely the toe-board (regulation 30(2) of the 1966 regulations); and failure to keep the walkway adequately lighted (regulation 47 of the 1961 regulations). The allegations of negligence repeated the alleged breaches of statutory duty and included failure to detect and re-secure the displaced toe-board and failure to warn the plaintiff of the danger presented by its presence on the walkway.
The learned judge rejected the allegation of inadequate lighting. He did not accept that part of the plaintiff's evidence. By a respondent's notice the plaintiff has contended that the judge ought to have found this complaint on the evidence to have been made out. Mr. Williams points to the fact that the plaintiff, and Mr. John Smith, who was walking with the plaintiff when the accident occurred, were the only witnesses. The plaintiff was cross-examined about his assertions that the lighting was poor and his answers provided ample ground for the judge's view of that part of his evidence. Mr. Smith also described the lighting as very poor. He was not cross-examined. He was describing the state of lighting in that building on an occasion more than eight years before. The judge was not, in my view, obliged to accept that the defendants were in breach of duty with reference to the lighting because of what Mr. Smith had said. This allegation had appeared in the re-amended statement of claim for the first time in October 1984. The plaintiff's evidence on the point was unimpressive. I would sustain the judge's finding on that point.
On the evidence it was clear that the defendants were in breach of regulation 30(2) which provides that "every gangway shall be kept free from any unnecessary obstruction and material". Mr. Taylor, for the defendants at the trial, did not argue to the contrary. He contended that the defendants were not in reach of any other regulation and had not been negligent. His principal argument before the judge was that there was no reasonably foreseeable risk that, if the plaintiff did try to move the displaced board, he would injure himself, and therefore the defendants were not liable in negligence or for breach of statutory duty. The argument was directed primarily, as I see it, to the question of remoteness although Mr. Taylor was not conceding that the defendants had been negligent.
The findings of the learned judge on this part of the case were as follows: (i) The defendants ought to have anticipated that if someone at the plant saw this displaced board on the walkway he would probably take steps to move it out of the way; (ii) the defendants, however, could not reasonably have anticipated that if a man should bend down to move a scaffold board, nine feet long by eight inches wide, he would suffer some injury; (iii) therefore the defendants were not liable for negligence at common law; (iv) the plaintiff in trying to move the board out of the way was not guilty of any contributory negligence; (v) the defendants were in breach of regulation 30(2) because the displaced toe-board was an obstruction on the walkway; (vi) the plaintiff was injured while trying to remove the obstruction. The fact that the defendants could not reasonably have anticipated injury to the plaintiff in such circumstances was irrelevant to liability for breach of statutory duty; (vii) the failure by the defendants to keep the walkway free of obstruction was a cause of the plaintiff's injury. Therefore the defendants were liable.
The notice of appeal at first contended only that the learned judge was wrong on causation and in refusing to apply foreseeability to breach of statutory duty. The amended notice added two further grounds: that the judge ought to have held, firstly, that the accident did not fall within the mischief against which regulation 30 of the Construction (Working Places) Regulations 1966 is directed; and, secondly, that the plaintiff's accident was caused by his own negligence in moving the toe-board in such a manner as to cause injury to himself.
It was not argued on this appeal that the points on causation and on "mischief", or the applicability of the regulation, were not open to the appellants in this court but it is clear that, before the learned judge, much the greater part of the argument was directed to the point of foreseeability as relevant to remoteness in both negligence and breach of statutory duty. It is clear, I think, that the case has been put very differently before this court.
I will take first the issue of contributory negligence in order to get it out of the way. It was alleged in the defence that the plaintiff had been negligent in attempting to move the toe-board, in failing to report that the toe-board was out of position so that the scaffolding contractors could re-secure it, and in moving the toe-board in such a manner as to cause injury to himself. No doubt all these matters were argued. The learned judge expressly rejected the first two: he found that the plaintiff was doing no more than trying to move the board out of the way and he described any...
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