McWilliams v Sir William Arrol & Company Ltd
| Jurisdiction | UK Non-devolved |
| Judge | The Lord Chancellor,Viscount Simonds,Lord Reid,Lord Morris of Borth-y-Gest,Lord Devlin |
| Judgment Date | 21 February 1962 |
| Judgment citation (vLex) | [1962] UKHL J0221-2 |
| Court | House of Lords |
| Docket Number | No. 4. |
| Date | 21 February 1962 |
[1962] UKHL J0221-2
House of Lords
Lord Chancellor
Viscount Simonds
Lord Reid
Lord Morris of Borth-y-Gest
Lord Devlin
After hearing Counsel, as well on Monday the 15th, as on Tuesday the 16th, days of January last, upon the Petition and Appeal of Mrs. Janet Wood Cummings or McWilliams, residing at 11 Rayne Place, Drumchapel, Glasgow, W.5, widow of the deceased William Francis McWilliams, steel erector, as an individual and as tutrix and administratrix in law of the pupil children aftermentioned: William Duncan McWilliams, Janette Cummings McWilliams, Marion McWilliams and Kenneth McWilliams, all residing with her at 11 Rayne Place, aforesaid, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Lord Ordinary in Scotland (Lord Guest), of the 15th of January 1960 and also an Interlocutor of the Lords of Session there of the First Division, of the 17th of February 1961, 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 Sir William Arrol & Company Limited; and also upon the Case of Lithgows Limited, lodged in answer to the said Appeal; and Counsel appearing for the Respondents, but not being called upon; and due consideration being had this day of what was offered for the said Appellant:
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 15th day of January 1960 and of the 17th day of February 1961, complained of in the said Appeal, be, and the same are hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, provided that such last-mentioned Order shall not be enforced without a further Order of this House.
My Lords,
This is an appeal against an interlocutor of the First Division of the Court of Session in Scotland dated 17th February, 1961, adhering to the interlocutor of the Lord Ordinary dated 15th January, 1960, in an action for damages raised by the Appellant as pursuer against the Respondents as defenders in which the Lord Ordinary assoilzied the Respondents from the conclusion of the action. In that action the Appellant sought to recover damages from the Respondents jointly and severally or severally in respect of the death of her husband, the deceased William Francis McWilliams, in an accident on 27th May, 1956.
On 27th May, 1956, the deceased was employed by the first Respondents as a steel erector in connection with the steel lattice work tower of a tower crane which they were constructing for the use of the second-named Respondents in their Kingston shipbuilding yard, Port Glasgow. The deceased was an experienced steel erector. The tower had already been erected to its full height of about 120 feet, but stagings required to be erected at various points up and down the structure to provide platforms from which riveters could rivet the steel work. The method of erecting such stagings involved the fastenings of battens of wood known as "needles", horizontally, to the sides of the structure, the inner ends thereof being approximately in line with the centre of the tower and the outer ends protruding out for some feet beyond the corner of the steel structure. Planks were then required to be laid across the protruding parts of the needles to form a platform outside the structure from which the riveters could work. For purposes of security it was the practice to support the extreme protruding end of the needle by means of a lashing known as an "outrigger" looped thereon and fixed to a point on the steel work above the level of the needle, or to the accident the deceased had been working in connection with the erection of one such staging at a point on the structure at about 70 feet above the ground. While it was not established exactly what the deceased was doing at the time of the accident, it is not disputed that he fell from about the point where the staging was being erected to the ground, sustaining fatal injuries, that immediately after the accident one of the needles of the staging was observed to be markedly canted downwards towards the outer end, and that there was found on the ground, close to the deceased's body, a wooden plank, which had probably prior to the accident been resting on the protruding ends of the needles and also an outrigger lashing. Safely belts, the wearing of which would have prevented the death of the deceased, had been available until two or three days before the accident but were then removed to another site.
The Appellant's case against the first Respondents was that the work upon which the deceased was engaged was dangerous in that he had to put his weight on battens before they were properly secured in order to secure them and had to use both hands in the work of securing; that it was the duty of the first Respondents as his employers to provide and maintain a safe system of work and sufficient plant to enable the deceased safely to perform his task; that for work of this nature it was their duty to provide the deceased with a safety belt and to instruct him to wear it; that such provisions and instructions accorded with normal and proper practice for work on such steel structures and that it was particularly necessary for the work and position which I have described.
The Appellant in her pleadings also made a case concerned with the provision of safety nets but this was abandoned in the course of the proof and I need not mention safety nets again.
With regard to the second Respondents it was averred that by their failure to provide the deceased with a safety belt they were in breach of section 26 (2) of the Factories Act, 1937, namely,
"Where any person is to work at a place from which he will be liable to fall a distance more than ten feet, then, unless the place is one which affords secure foothold and, where necessary, secure hand-hold, means shall be provided, so far as is reasonably practicable, by fencing or otherwise for ensuring his safety."
The Appellant averred that in the circumstances of the accident the deceased was working at a place from which he was liable to fall more than ten feet and which did not afford secure foothold; that the second Respondents were bound to supply him with a safety belt, that it was reasonably practicable for them so to do, and that if one had been provided the accident would not have happened.
The Lord Ordinary (Lord Guest) and the learned Judges of the First Division held that the first Respondents were in breach of duty at common law in failing, contrary to the proved practice of making them available, to provide a safety belt for the deceased and that the second Respondents were in breach of their statutory duty in the same respect. The Lord Ordinary and the Lord President (with whom Lord Carmont agreed) went on to hold that the Appellant had failed to prove that the provision of a safety belt by the Respondents would have prevented the accident, while Lord Guthrie, taking a different view of the onus of proof, held that the Respondents had proved that it would not. The basis of these views was that if safety belts had been provided, the deceased would not have been wearing one on the occasion of the accident.
Lord Guest held that the question of instructions to use of safety belt was academic. The Lord President took the view that exhortation would have been useless and that if instructions had been given the deceased would have ignored them.
On the first point the Appellant's case before this House was fourfold. It was submitted that to hold that the Appellant had failed to prove that the provision of a safety belt would have prevented the accident (and still more that the Respondents had proved that it would not) was wrong on grounds of authority, the type of evidence required as compared with that called, the effect of the evidence before the Lord Ordinary and a theory of causation.
The first case to which reference was made was Roberts v. Dorman Long & Co. Ltd. [1953] 1 W.L.R. 942. That was a case under Regulation 97 of the Building (Safety, Health and Welfare) Regulations, 1948, of which the material words are—
"… and except for persons for whom there is adequate handhold and foothold … there shall be available safety belts … which will so far as practicable enable such persons who elect to use them to carry out the work without risk of serious injury."
At page 946 Lord Goddard, C.J. is reported as saying:
"I think that if a person is under a duty to provide safety belts or other appliances and fails to do so, he cannot be heard to say: 'Even if I had done so they would not have been worn.'"
At pages 949 and 951 Birkett and Hodson, L.JJ. (as they then were) used language which, it was submitted to us, supported this view. In the case of ( Drummond v. British Building Cleaners Ltd. [1954] 1 W.L.R. 1434) Parker, L.J. (as he then was) at page 1444 adopted Lord Goddard's words and reasoning.
With respect, I am unable to follow or accept this reasoning or its result. The necessity, in actions by employees against their employers on grounds of negligence, of establishing not only the breach of duty but also the causal connection between the breach and the injury complained of...
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