Moore v R Fox & Sons

JurisdictionEngland & Wales
Judgment Date20 December 1955
Judgment citation (vLex)[1955] EWCA Civ J1220-6
Date20 December 1955
CourtCourt of Appeal
Florence Margaret Moore
Plaintiff, Appellant,
- and -
R. Fox & Sons
Defendants, Respondents,

[1955] EWCA Civ J1220-6


The Master of the Rolls (Sir Raymond Ever shed),

Lord Justice Birkett and

Lord Justice Romer.

In The Supreme Court of Judicature

Court of Appeal

Mr STEPHEN CHAPMAN, Q.C. and Mr. ROGER D.B. DAVIES (instructed by Messrs Trott & Gentry) appeared on behalf of the Plaintiff Appellant.

Mr. R.H. FORREST, Q.C. and Mr. RONALD S. HOPKINS (instructed by Messrs, Carpenters) appeared on behalf of the Defendants, Respondents.


On the 18th February, 1953, at about 4.30 in the afternoon, Mr. G.F. Moore, who was employed as a phosphate in their business by the Defendants, was in the ordinary course attending to a tank on the Defendants' premises into which it was his duty to immerse metal objects. An explosion then occurred underneath the tank as a result of which Mr. Moore was killed almost instantaneously. A friend of Mr Moore, Mr Higgins, who was a lorry driver also in the Defendants' employment, had just been speaking briefly to Mr. Moore and had not, in fact, loft the room or shop when the explosion occurred. Mr Higgins gave evidence for the Plaintiff, and as a result of that evidence (which was to the effect that Mr Moore was attending to his tank in a perfectly normal way) the Judge found as a fact, and there has been no serious challenge to his finding, that the explosion was not due to any action on the part of Mr. Moore himself.


That which I have referred to as a "tank" was an apparatus designed and manufactured by Messrs. Neil & Spencer Limited., by whom it had been supplied and fitted on the Defendants' premises so as to have been in use continuously since the previous November. Its purpose was the removal of rust from metal objects. It consisted of a substantial metal tank, the function of "dc-rusting" being achieved by the immersion of the metal objects to be treated in the tank which was filled for the purpose with certain liquid chemicals maintained at a temperature of 140° F. It appeared that the objects to be treated were immersed for about 10 to 15 minutes each.


The heating, and the maintenance of the requisite heat, in the tank was achieved by a thermostatically controlled gas burner situated underneath the tank and visible from the outside through a slit in the outer casing of the appliance. The burner was of the bar type, having several vents or ports. The main gas supply of the burner passed through a thermostatically controlled regulator so contrived that when the desired heat was attained the supply was automatically cut off; but when the temperature fell below the required level the supply recommenced. It appearedthat in the course of a day (during which the tank was in continuous operation) the gas supply turned on and off about once every 20 minutes. In order to ignite or re-ignite the burner when the supply was flowing, a pilot Jot flame, which should have boon about 6 inches in length, was provided near to the burner and supplied by a separate pipe. There was also a third and much smaller pipe, called the "bleeder", which served to burn away the small overflow of pas from the regulator. There was, finally, a contrivance known as a "draught interrupter" designed to prevent a down-draught from extinguishing the burner flames.


A result of the explosion on the 18th February, 1953, was blow the various components which I have briefly described seriously out of position, to sever the main pipe altogether at one point, and also to break, i.e., put wholly out of operation, the draught interrupter.


It appears to have been Mr. Moore's habit, when working at the tank, to stand upon some kind of wooden box. Though the box was not produced, and though it was at the inquest hold after Mr. Moore's death, described by the Defendants' first witness, Mr. C.R. Fox, a partner in the Defendant firm, as a "stool", it was vaguely suggested to the Plaintiff's expert witness, Mr Whittaker, that the explosion might have been due to the use of this box by Mr Moore on the ground that it might have prevented a sufficient flow of air to the burner. The suggestion was repudiated by Mr. Whittaker and rejected by the Judge, who thought from the evidence of certain marks on the casing of the tank that, in any event, the box or stool had not been immediately in front of the slit in the easing. The suggestion was no more pursued before us than the suggestion that Mr. Moore had unaccountably been a party to his own destruction by turning, or tampering with, the taps on the apparatus. This restraint on the Defendants' part was, in my Judgment, wise: for, as will later appear, it cannot, in the peculiar circumstances of this case, assist the Defendants to suggest that the death of Mr. Moore was attributable to his failure to appreciate the dangerous potentialities of theapparatus at which he had been required to work.


The Plaintiff, as the widow and administratrix of Mr. Moore, is suing on her own behalf and on behalf of the two children of her marriage with the deceased, under the Fatal Accidents Act and the Law Reform ( Miscellaneous Provisions) Act, alleging that the death of her husband was attributable to negligence on the part of the Defendants. In addition to her own evidence, which was not directed to the question of liability, the Plaintiff called as witnesses Mr. Higgins, the effect of whose evidence I have already stated, and Mr Whittaker, a consulting engineer of 30 years experience, though not expert in gas apparatus. Mr. Whittaker proved - and so much has since been conceded on all hands - that the accident must have been caused by an accumulation of a quantity of un burnt pas under the tank: for un burnt pas of the kind here employed, when mixed with air, becomes highly explosive. In the present case this un burnt pas so mixed with air must have been exploded by the pilot jet flame operating tardily, by the "bleeder" flame, or (as Mr. "Whittaker also thought possible) by some incandescent soot. If tampering with the taps or other temerarious conduct on the part of Mr. Moore is eliminated, it appears to follow without possibility of doubt (and this, again, was not disputed) that the explosion must have been duo to the fact that pas emanating from the burner was not (as it should have been) immediately ignited by the pilot jet but was allowed for a time to accumulate un burnt under the tank. According to Mr. Whittaker, the functional failure of the pilot Jet should not, and would not, have happened if the apparatus had been properly maintained. I quote the following two questions and answers from page 12 of the transcript of Mr. Whittaker's examination-in-chief:-"(Q)-


Aslong as that was properly inspected and maintained, should the pilot light either go out completely or else get so low that it would not light the burners when the pas came on? (A) No, it should not. A pilot light of the size I saw would not go out very easily. It was of sufficient size for that.


"(Q) Do you think it is likely to be blown out? (A) I think it would be very difficult to blow it out."


The Plaintiff contended that her case fell within the rule or principle known as "res ipsa loquitur", i.e., that the fact of the explosion spoke for itself and led to the conclusion of negligence on the Defendants' part unless it cold be otherwise explained. Thus, as she claims, the onus was put upon the Defendants which in the event, as she argued below and before us, was never discharged. The learned Judge acceptor the promise to the Plaintiff's argument, i.e. that this was a case to which the formula "res ipsa loquitur" applied; but he concluded, nevertheless, that the Defendants had successfully discharged the onus cast upon them. Founding himself largely upon the judgment of Mr. Justice Langton in the case of The Kite. (1933 Probate at page 154), he thought that it sufficed for the Defendants by expert evidence (alone) to show possible, that is theoretically possible, ways in which this accident or others like it might happen, and then to say that some, at least, of those possibilities were consistent with absence of negligence.


I have found the case one of perplexing anxiety. The so-called rule or "principle" of res ipsa loquitur has been the subject of many Judicial pronouncements both in England, and in Scotland. It has, indeed, been somewhat criticised. In the view of Lord Shaw of Dunfermline (in Ballard v. North British Railway Co., later mentioned) its title to the designation of "principle" has been largely attributable to the fact of its expression in the Latin tongue. Nevertheless, there can, in my view, be no doubt of the validity of the rule or presumption, by whatever name it is called. It has been considered by the House of Lords as recently as the present tern in the case of Esso Petroleum Limited. v. South port Corporation (unreported as yet). Although, therefore, it cannot be doubted that if the Plaintiff can rightly assort, as regards this accident, "res ipsa loquitur", the onus is then thrown upon the Defendants to show that there was no negligence on their part or, at least, to give an "explanation" of the accidentwhich is consistent with the absence of negligence, it is for less clear whether the languages of Mr. Justice Langton ought to be taken as justifying the conclusion for which the Defendants have here contended, and particularly the proposition that they can discharge that onus upon the basic of what arc (in effect) purely scientific hypotheses. In the circumstances I think it right that I should express my ova view of the present case both on the occupation, which the learned Judge favoured, that the case was one of res ipsa loquitur, and also on the alternative view that, although at the and of her case the Plaintiff what have established a prime facie case of ,...

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  • Subject Index
    • United Kingdom
    • Sage International Journal of Evidence & Proof, The No. 7-4, December 2003
    • 1 December 2003
    ...[1999] 2 WLR552..................................................... 49Moody v Cox [1917] 2 Ch 71 ............ 235Moore v R. Fox & Sons [1956] 1 QB 596........................................................ 228Murray v United Kingdom (1996) 22EHRR 29 ..................................... 3......
  • Burden of Proof in Undue Influence: Common Law and Codes on Collision Course
    • United Kingdom
    • Sage International Journal of Evidence & Proof, The No. 7-4, December 2003
    • 1 December 2003
    ...nature of the alleged undue influence, the personality of the36 Henderson v Henry E. Jenkins & Sons [1970] AC 282; Moore v R. Fox & Sons [1956] 1 QB 596; Ward v TescoStores Ltd [1976]1 WLR 810.37 Ballard v North British Railway Co. 1923 SC (HL) 43 at 54; Colvilles Ltd v Devine [1969] 1 WLR ......

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