Qualcast (Wolverhampton) Ltd v Haynes
| Jurisdiction | England & Wales |
| Judge | Lord Radcliffe,Lord Cohen,Lord Keith of Avonholm,Lord Somervell of Harrow,Lord Denning,Viscount Simonds,Lord Oaksey,Lord Morton of Henryton,Lord Reid |
| Judgment Date | 25 March 1959 |
| Judgment citation (vLex) | [1955] UKHL J0302-1 |
| Date | 25 March 1959 |
| Court | House of Lords |
[1955] UKHL J0302-1
Viscount Simonds
Lord Oaksey
Lord Morton of Henryton
Lord Reid
Lord Keith of Avonholm
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Qualcast Limited against Thorpe, that the Committee had heard Counsel, as well on Tuesday the 8th, as on Wednesday the 9th, days of February last, upon the Petition and Appeal of Qualcast Limited, whose registered office is situate at Victory Road, Derby, in the County of Derby, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 10th of March 1954, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered or that the Petitioners 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 printed Case of James Thorpe, 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 Order of Her Majesty's Court of Appeal, of the 10th day of March 1954, complained of in the said Appeal, be, and the same is hereby, Reversed except as to Costs, and that Judgment be entered for the Defendants: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal to this House, the amount of such Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Derby and Long Eaton County Court, to do therein as shall be just and consistent with this Judgment.
My Lords,
The Appellants are the owners of a large iron foundry; the Respondent has at all material times been employed by them as a pattern moulder. His duties required that he should some five or six times a day carry small supplies of molten iron to the pattern moulding shop from the adjoining die-casting shop. For this purpose he uses a long hand ladle which he fills with molten metal in the die-casting shop by intercepting the stream of metal as it is poured from a spout into a crucible. It is unnecessary at this stage to explain the process in greater detail, for, though, as is common enough in this class of case, numerous allegations were made of the want of a "safe system of working" the issue has now become a very narrow one.
On the 27th March, 1952, the Respondent pursuing his usual course of filling his hand ladle with molten metal, for which purpose he had to mount a small platform, had the misfortune when the ladle was about three-quarters full, to meet with an accident. For, as he was withdrawing his ladle, some molten metal from the stream coming out of the spout struck the back of the ladle and some of its contents were spilled and burnt his right foot. In his own words so far as they appear from the note of the learned County Court Judge:
"some of the metal splashed down my left leg—front of the shin and I was burnt over the instep".
An alternative view was that the accident was due to his knocking the ladle against the side of the crucible as he was withdrawing it. But it is immaterial which version was correct. The metal was splashed and the Respondent suffered damage but fortunately not very grave damage.
In these circumstances he commenced proceedings against his employers, the Appellants, in the Derby County Court, alleging negligence on their part and claiming damages.
It is important to see what negligence he alleged. It was that the Appellants negligently failed to provide a safe system of working or proper and safe plant and equipment in that they
(A) failed to provide him with free access to the spout from which the metal was poured;
(B) failed to take any or any sufficient steps to ensure that the crucible was moved away from the spout while he filled his ladle;
(C) failed to provide him with any or any proper safety spats and/or boots or other suitable means of protecting his feet against molten metal;
(D) caused or permitted him to perform the said work when by reason of the presence of the said crucible and/or the fact that he was not wearing protective boots and/or spats it was unsafe to do so;
(E) failed to instruct him sufficiently or at all as to the safe method of performing his said work or to warn him of the dangers to which he was exposed.
The Appellants by their defence put in a general denial and pleaded that the Respondent's alleged injuries were not occasioned by reason of the alleged or any want of care on their part and they also pleaded contributory negligence by the Respondent.
On these issues the parties went to trial and it is of the utmost significance in considering the subsequent evidence to note that, though the particulars of claim referred to the failure to provide the Respondent with safety spats and/or boots or other suitable means of protecting his feet against molten metal, yet this plea was not mentioned in his opening by learned counsel for the Respondent, nor was any evidence in regard to it given by the Plaintiff or by the charge hand whom he called as a witness nor was any question asked by his counsel of the expert witness called on his behalf and but for the fact which I shall next mention, his case would have closed without any reference to it whatever. But it appears that, after the expert witness had been examined and cross-examined, the learned Judge thought fit to revive a plea, which (for very good reasons one must presume) learned counsel had dropped, and asked the witness certain questions to which according to his note the following answers were given:
"I have seen safety spats used in factories for the purpose of preventing men's feet from being splashed by molten metal. They are leather. I have seen them in many factories and in this factory. In the general foundry. It is not common practice for men to use them but is common practice for them to be available. Usually kept by employers in stores for the men to purchase if they want to".
My Lords, a somewhat embarrassing position is created when the Court directs questions to an issue which counsel has obviously decided not to pursue. In this case learned counsel, acting, I do not doubt, in a proper exercise of his discretion, notwithstanding the clear invitation of the Judge's questions, did not at this stage ask leave to recall the Plaintiff and so his case was closed without any evidence about spats, protective boots or other forms of protection for the feet in general or about the Respondent's practice in the matter. When counsel for the Appellants came to call his evidence, he, too, was in a difficulty. In view of the Judge's interest in the matter, he may well have thought it wiser not to ignore it altogether, though he might have been justified in regarding the issue as dead. In this predicament he asked the staff foreman some questions and the Court was told:
"There are spats. In the store room. They were issued free. To anyone who 'called for them'. Can't ever remember anyone calling for them. I have seen them in another part of the works."
In cross-examination he said:
"The Plaintiff, no-one in the die-casting department wore them. Thorpe did not wear spats. I have never instructed anyone under my supervision to wear spats".
To a question by the learned Judge he said he was not prepared to say that the Respondent knew he could get leather spats by going and asking for them. Similar evidence was given by the Pattern Shop foreman who said that spats were kept in the works general store, that any moulder had only to ask his foreman for an order for a pair of spats and he could get them and that he had seen men wearing spats but he could not say that he had told the men in his shop that they could have spats for the asking. In cross-examination he said he had never given any instructions about men wearing spats. No question on this matter was asked of the remaining witness, an expert who was called to speak on other matters. The Defendant's case was then closed and the Plaintiff's counsel, using, I think, a proper discretion, still did not seek to recall the Plaintiff. Once more, however, the learned judge intervened and himself recalled the Plaintiff, and the following questions and answers are recorded:
"Q. You have heard it said that you only had to ask for a pair of leather spats to get them. Did you know that?
A. Yes.
Q. Why did you not ask for some?
A. I always wore good foundry boots of my own—i.e. good strong leather boots."
And in answer to counsel for the Plaintiff he said that he had at no time been instructed to wear spats—a question and answer that might well, I think, have been directed to the issue of contributory negligence.
I have referred to the whole of the relevant evidence and, since I deem it a matter of some importance, to the way in which it was elicited, and it appears to me that there was no evidence on which the learned Judge could find that the Appellants had been negligent in that they did not provide the Respondent with "safety spats" or "safety boots" or provide him with sufficient instruction (I use the learned Judge's own language in thus summarising the relevant pleas) and that by reason of this negligence the Respondent had suffered damage. The plea referred to spats or boots and I will assume that the word "safety" qualified them both. The Respondent did not wear spats, though he knew he could get them; he did not get them or wear them because he always wore "good foundry boots" of his own. That word "because" is involved in his answer and is an...
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