Nimmo v Alexander Cowan & Sons Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Guest,Lord Upjohn,Lord Wilberforce,Lord Pearson |
| Judgment Date | 26 July 1967 |
| Judgment citation (vLex) | [1967] UKHL J0726-2 |
| Court | House of Lords |
| Docket Number | No. 7. |
| Date | 26 July 1967 |
[1967] UKHL J0726-2
House of Lords
Lord Reid
Lord Guest
Lord Upjohn
Lord Wilberforce
Lord Pearson
Upon Report from the Appellate Committee, to whom was referred the Cause Nimmo against Alexander Cowan and Sons Limited, that the Committee had heard Counsel, as well on Tuesday the 30th as on Wednesday the 31st, days of May last, upon the Petition and Appeal of Alexander Nimmo, Six Cuiken Avenue, Penicuik, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Lord Ordinary in Scotland (Lord Hunter) of the 17th of December 1965, and also an Interlocutor of the Lords of Session there of the First Division of the 24th of June 1966, 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 Alexander Cowan and Sons 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 Interlocutors of the 17th day of December 1965 and of the 24th day of June 1966, complained of in the said Appeal, be, and the same are 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 repel the first Plea-in-law for the Defenders and to proceed as accords: 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,
A considerable number of statutes prescribe, or enable Regulations to prescribe, what steps an employer or occupier must take to promote the safety of persons working in factories mines and other premises where work is carried on. Sometimes the duty imposed is absolute: certain things must be done and it is no defence that it was impossible to prevent an accident because it was caused by a latent defect which could not have been discovered—still less is it a defence to prove that it was impracticable to carry out the statutory requirement.
But in many cases the statutory duty is qualified in one way or another so that no offence is committed if it is impracticable or not reasonably practicable to comply with the duty. Unfortunately there is great variety in the drafting of such provisions. Sometimes the duty is expressed in absolute terms in one section and in another section it is provided that it shall be a defence to prove that it was impracticable or not reasonably practicable to comply with the duty. Sometimes the form adopted is that the occupier shall so far as reasonably practicable do certain things. Sometimes it is that the occupier shall take all practicable steps to achieve or prevent a certain result. And there are other provisions which do not exactly fit into any of these classes. Often it is difficult to find any reason for these differences.
There has been much doubt where the onus rests in these cases. About the first class it may well be it is sufficient for the prosecutor or pursuer to aver and prove a breach of the duty set out in the one section, leaving it to the accused or defender to avail himself of the statutory defence if he can. But in the other cases there is much room for doubt. In the present case the pleadings have been deliberately drawn in such a way as to require a decision at least with regard to the section on which the pursuer relies.
The pursuer, the present Appellant, avers that on 18th May 1964 he had, within a factory, to unload railway wagons filled with bales of pulp. In doing this he had to stand on some of the bales, and while he was standing on one of the bales it tipped up and caused him to fall and fracture his skull and three ribs. He found on section 29 (1) of the Factories Act 1961 which is in these terms:
"There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there."
He avers that the bales were insecurely placed in the wagons so that the place at which he had to work was not made and kept safe for his working there. He deliberately avoids averring that it was reasonably practicable for the Respondents, his employers, to make that place safe. He says that he has averred a relevant case because under this section it is for the defender to aver and prove, if he can, that it was not reasonably practicable to make the place safe. The Respondents of course had no control over the loading of the bales in the wagon: that no doubt was done by the seller who sold the pulp to them. They make averments to shew that it was not reasonably practicable for them to make the place safe, and they also plead that the pursuer's averments being irrelevant the action should be dismissed. This plea to the relevancy was sustained by the Lord Ordinary and the Second Division adhered to his interlocutor.
This matter is not a mere technicality. It has important practical consequences. If the Respondents are right the pursuer must not only aver in general terms that it was reasonably practical to make the place safe—such an averment without more would be lacking in specification—he must also make sufficient positive averments to give notice to the defender of the method of making the place safe which he proposes to support by evidence. But if the Appellant is right he can simply wait for the evidence which the Respondent would have to lead to discharge the onus on him to shew that it was not reasonably practicable to make the place safe, and then cross-examine the Respondent's witnesses in any relevant way he chooses. He would only have to make positive averments if he intended to lead evidence that some particular method of making the place safe could have been adopted by the defender.
In my opinion this question should be approached by considering first what a prosecutor would have to allege and prove in order to obtain a conviction. For civil liability only arises if there has been a breach of the statutory duty, and I cannot see how a pursuer could succeed in a civil action without averring and proving all the facts essential to establish the commission of an offence. It is true that the standard of proof is lower in a civil case so that the pursuer only has to shew that it is probable that an offence was committed. But that cannot mean that the onus of proof is different with regard to any of the essential elements of the offence.
The Appellant's argument is that, although the statute says that every working place "shall, so far as is reasonably practicable, be made and kept safe", a prosecutor need only allege and prove that the place was not made and kept safe, leaving it to the accused to shew that this was not reasonably practicable. He founds on section 16 ( d) of the Summary Jurisdiction (Scotland) Act 1954 which provides:
"16. The charge in a complaint under this Act shall be stated in the form, as nearly as may be, of the appropriate form contained in Part II of the Second Schedule to this Act. No further specification shall be required than a specification similar to that given in that form and—
…….
( d) any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany in the same section the description of the offence in the statute or order creating the offence, may be proved by the accused, but need not be specified or negatived in the complaint, and no proof in relation to such exception, exemption, proviso, excuse, or qualification shall be required on behalf of the prosecution;"
A large number of forms of complaint are set out in the Schedule. I can only find one which relates to a statutory offence against a section drafted in the same way as section 29 of the Factories Act. That one is in these terms:
"You being the parent of A.B., a child of school age, aged …. who has attended …. school, and the said child having failed, between …. and ….., without reasonable excuse, to attend regularly at the said school, you are thereby guilty of an offence against section 35 of the Education (Scotland) Act, 1946."
That section provides:
"Where a child of school age who has attended a public school on one or more occasions, fails without reasonable excuse to attend regularly at the said school, then"
the parent shall be guilty of an offence.
"Excuse" is expressly mentioned in section 16 ( d) but nevertheless the Schedule makes it quite clear that section 16 ( d) does not apply to "without reasonable excuse" in section 35 of the Education Act. And the reason is, I think, plain enough. This section makes it clear that the offence is not failure to attend school regularly: it is failure without reasonable excuse to attend regularly. So the prosecutor...
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