Paris v Stepney Borough Council

This is an appeal from an Order of the Court of Appeal setting aside a judgment of Mr. Justice Lynskey in favour of the Appellant for £5,250 damages and costs.

On the 13th May, 1942, the Appellant entered the service of the Respondents as a garage hand in their Cleansing Department. He was then for all practical purposes blind in his left eye, having suffered serious injury in May, 1941, as the result of enemy action, but this fact was not known to the Respondents at that time. On or about the 22nd June, 1946, he was medically examined with a view to his becoming a member of the permanent staff and joining the superannuation scheme, and on the 26th July, 1946, the Medical Officer reported to a Mr. Boden, the Respondents' Public Cleansing Officer, that the Appellant was not fit on account of his disablement to join the superannuation scheme. On the 16th May, 1947, he was given two weeks' notice expiring on the 30th May, 1947, to terminate his employment. I will assume that at this date the Respondents had notice of his physical disability, including the blindness of his left eye.

On the 28th May, 1947, the accident occurred which gave rise to the present action. The Appellant was engaged in dismantling the chassis of a gulley cleaner, a type of vehicle generally used by local authorities for the cleansing and flushing of street gulleys. The vehicle had been raised about 4 ¹/₂ feet from the garage floor by means of a ramp. The Appellant had to remove a "U" bolt holding the springs of an axle and, to release it, he hit the "U" bolt with a steel hammer. As the result of his doing so a piece of metal flew off and entered his right eye with the disastrous consequence that he lost the sight of it altogether. On the 8th August, 1947, he commenced his action against the Respondents claiming damages for their negligence and breach of statutory duty. The Respondents put in a defence denying negligence and raising an alternative plea of contributory negligence which has not been pursued. Nor has the Appellant pursued his claim for breach of statutory duty. The single question is whether the Appellant proved the negligence of the Respondents, a question answered in the affirmative by Mr. Justice Lynskey, in the negative by the Court of Appeal.

What then was the negligence alleged by the Appellant and denied by the Respondents? It was that it was the duty of the Respondents to supply the Appellant with suitable goggles for the protection of his eyes while he was engaged in such work and to require him to use them. I can come at once to the crux of the matter. In the statement of claim this duty is pleaded as a general duty owed by the Respondents to their employees engaged in this class of work: the Appellant did not allege a particular duty owed to him by reason of his individual infirmity. At what stage this plea emerged is not very clear, but, having more than once read the judgment of Mr. Justice Lynskey, I share the view of the Lord Chief Justice that that learned Judge decided the case upon the ground that a special duty was owed to him as a one-eyed man, and it is clear that in the Court of Appeal and in this House this was the relevant plea. The first formal reason in the Appellant's case asserts the Respondents' duty "to exercise reasonable care not unnecessarily to expose the Appellant to the risk of suffering the injurious results likely to follow an accident to his sound eye having regard to the fact that he was known by them to be a one-eyed man".

The issue, my Lords, is thus narrowed down and I will say at once that I do not dissent from the view that an employer owes a particular duty to each of his employees. His liability in tort arises from his failure to take reasonable care in regard to the particular employee and it is clear that, if so, all the circumstances relevant to that employee must be taken into consideration. I see no valid reason for excluding as irrelevant the gravity of the damage which the employee will suffer if an accident occurs, and with great respect to the judgments of the Court of Appeal I cannot accept the view neatly summarised by Lord Justice Asquith that the greater risk of injury is, but the risk of greater injury is not, a relevant circumstance. I find no authority for such a proposition nor does it appear to me to be founded on any logical principle.

But, my Lords, the gravity of the injury is only one of the relevant circumstances and, while I cannot accept the judgment of the Court of Appeal which is based on the view that it is irrelevant, unlike the majority of your Lordships I find it impossible to uphold the judgment of the learned trial Judge. For he, I think, ignored a consideration which was essential to a proper determination of the duty of the Respondents to the Appellant. If the gravity of the damage is relevant, so also is the seriousness of the risk, and in the consideration of this question I think that the learned Judge fell into error. As I have already said, it is difficult to be sure what was in the mind of the learned Judge, for having stated (correctly, as I think) that the Respondents owed a duty to the Appellant individually, not to a class, he added, "in this case the real question is whether the employers in adopting this system and not providing or requiring the use of goggles for the workers on this system were taking reasonable care to provide a suitable system of work and provide a suitable plant". But he then, without coming to any conclusion upon this question, appears to decide in favour of the Appellant on the ground of his particular disability, for he concludes by saying, "I am satisfied here that there was, so far as this particular plaintiff was concerned, a duty upon the employers to provide goggles and require the use of goggles as part of their system". Your Lordships must be left in doubt what view the learned Judge held on what he had described as the real question, yet it was, if not the real question, a matter of fundamental importance in determining what was the nature of the risk which was run by two-eyed and one-eyed men alike. It is a question which I will now consider.

My Lords, a study of the evidence leaves me in no doubt that an employer could not be held guilty of negligence if he did not generally provide goggles for the use of his employees engaged in this kind of work. Mr. Boden, to whom I have already referred, a witness of wide experience, being asked, "Have you seen in work of this kind workmen wearing goggles to do such work?" replied, "Not in my experience. I have never seen any mechanic working in any of the repair shops that I have visited during that 37 years wearing goggles doing that repair work". A Mr. Reay, having served his time in the shops where he had neither himself worn nor seen others wearing goggles for such work, set up in business for himself. He was asked, "When you were your own employer, did you wear goggles for such work?" and he answered "No". The Appellant himself gave evidence, which, so far as it bears upon the obviousness of the risk and corresponding duty, cannot be disregarded. I make nothing of the fact that he did not complain that goggles were not provided, for he might well hesitate to do so. But, being asked "Have you considered as to whether it was dangerous to do this sort of job without eye protection?", he answered, "Well we were always working through years just doing the same thing. It became natural to get in there without...