Rands v McNeil
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE JENKINS,LORD JUSTICE MORRIS |
| Judgment Date | 19 November 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J1119-1 |
| Date | 19 November 1954 |
| Court | Court of Appeal |
[1954] EWCA Civ J1119-1
In the Supreme Court of Judicature
Court of Appeal
Lord Justice Denning
Lord Justice Jenkins and
Lord Justice Morris.
MR R. (instructed by Messrs Devonshire & Co., agents for Messrs Pearlman & Rosen, Hull) appeared on behalf of the Appellant (Plaintiff).
MR FELIX DENNY (instructed by Messrs Dawson, Lancaster & Co.) appeared on behalf of the Respondent (Defendant).
LORD JUSTICE DENNING: A Yorkshire farmer had a dangerous bull. He knew it was dangerous because the bull on one occasion had chased one of his men in the yard. The farmer thereafter kept the bull inside a loose box all the time. It was kept there undeterred. On a later occasion the bull got the farmer himself against the wall of the box and the farmer then took his horms off. The bull was never let out of the box except when it had to be cleaned out. Even the cows were taken into the box for service. The farmer told some of his men not to go into the box,but he never told his stockman, Moss, not to go in. He warned Moss that he must be very careful of the bull but did not tell him not to go into the box. Nor did he tell his senior man, Rands, in terms not to go into the box; though no doubt Rands knew it was a dangerous thing to do and that he ought not to do it.
Now the accident happened because Moss and Rands on one occasion did go into the box. It came about in this way. The box had to be cleaned out. The stockman, Moss, wanted to catch the bull and tie it up whilst he cleaned out the box. The bull had, of course, a ring in his nose. Moss got a staff with a hook on the end of it and he tried to get the hook through the ring on the bull's nose. He tried this at first from outside the box. He put the staff through the window, but did not succeed in catching the bull; whereupon the bull became wary and backed away from the hook. To use Moss's own words: "I went round to the window and the bull he maybe was near enough to get with the staff, but if you did not get him the first time you had had it. He went to back away, or maybe he would go further to the door and you had to go round and try and get him. If he got into the far corner you could not reach him", and he added significantly: "You are all right if you can get him the first time like". Not having caught the bull from outside, Moss decided to get some help to go inside; for otherwise he might have been outside there all day. He said: "I went and asked Rands if he would give me a hand as I did not fancy going in to try and get him by myself". Rands said he would give him a rand and did so. First Moss went into the box whilst Rands stood at the door and kept it open in case Moss had to make a dash for safety. Moss failed to catch the bull, so Rands said: "Shall I have a try?" They changed places. Rands took the staff and Moss held the door. Rands tried to hook the bull but as he was doing so the bull charged and knocked him down against the wall and severely injured him. Moss drove the bull off with a dung fork and Rands got out of the box but he had a frightful wound to his left arm.
He has had to undergo nine operations and his arm is still practically useless to him.
This is the first case, so far as I know, where the Court has had to consider the liability of a farmer towards the men whom he employs to look after a bull or to help in looking after it. We were urged to say that his liability to his men was the same as to the public at large: and that, inasmuch as the farmer knew the bull was dangerous, it was his strict duty to keep it under control so that it should do no damage. The farmer keeps the bull, it was said, at his peril, even so far as his own men are concerned. I do not think that is the law. The duty of the farmer to his men is not a strict duty. It is the same as the due of any other employer. He must take reasonable care not to subject his men to unnecessary risk. The only difference is that when he has a dangerous bull he must take very great precautions. It is trite knowledge that the greater the danger the greater the precautions that should be taken.
Apart from these general considerations, there is a narrower ground on which it can be seen that the farmer here is not under a strict liability. In order to impose strict liability even to the public it is essential to prove not only knowledge of the dangerous propensity of the animal, but also to prove that it escaped and did harm. Lord Hale put it very accurately in his Pleas of the Crown (Volume 1, page 430). He said: "The owner must at his peril keep him safe from doing hurt, for though he use his diligence to keep him up, if he escapes and do harm, the owner is liable to answer damages". Lord Wright in ( Knott v. L.C.C. 1934, I King's Bench) at page 138 said: "It is not unlawful or wrongful to keep such an animal; the wrong is in allowing it to escape from the keeper's control with the result that it does damage". This is in full accord with the principle of Rylands v. Fletcher where "escape" is an essential condition of liability: See ( Read v. Lyons 1947 Appeal Cases, at page 167, per Viscount Simon. Applying this principle it is plain that Rands cannot succeed on the ground of strict liability, for the simplereason that the bull never escaped at all. So far from the bull escaping, the man actually went into the loose box where it was kept and thus brought the danger on himself.
There remains, however, the question whether the farmer was guilty of negligence. The Judge does not mention this point, the reason being no doubt because the case was fought before him mainly on the question of strict liability. But negligence was distinctly pleaded and we ought, I think, to consider it. There was much evidence of faulty system. The system which the farmer did in fact provide is best shown by his own description of it. He was asked: "(Q) What was the procedure you laid down for mucking out the box? (A) That they should use the staff provided for the job and get the bull either through the half door on the foal yard side or preferably through the window on the far side, but at no time had they to go into the box". I cannot regard that system as satisfactory and for these reasons: (i) It was essential to the safety of the system that the men should be specifically instructed that they should not go into the box in any circumstances; but no such instruction ever reached the stockmen, Moss, or the senior farm hand, Rands, who were the two most likely to be affected by it. (ii) It was an inefficient system which meant poking a hook at the bull's nose, a thing to which the bull would naturally object. The farmer ought, as the veterinary surgeon said, at least to have had a chain 18 inches long hanging down from his ring; for then the men could angle for the end of the chain, which the bull does not mind so much. (iii) It was an inefficient system which depended on the chance of hooking the bull first time. If he was not caught first time, the men had to put off the job indefinitely until they could hook him. Good sturdy men like these would naturally say: "We had better go in and catch the bull rather than put off the job".
I realise, of course, that Moss and Rands were both at fault. They ought not to have gone into the box at all, because they must have known it was a dangerous thing to do and that they ought not to do it; but their being at fault does not excuse thefarmer from his share of the responsibility, if he also was at fault. It is only a ground for reducing the damages. The Judge seems to have thought that the case depended entirely on whether Rands acted outside the scope of his employment or not. Indeed, as I read his Judgment, he decided against the Plaintiff Rands simply on the ground that, when he went into the shed "he acted outside the scope of his employment". I do not think this is the right line of approach. An inquiry as to "scope of employment" is relevant and proper when considering whether a master is liable to a third person for his servant's negligence; but it does not arise when considering a claim by the servant himself for his master's negligence. In any case if I were asked whether Rands here was acting "in the course of his employment", or was out on a "frolic of his own", as the phrase is, I would answer that by saying that beyond question he was acting in the course of his employment. He was acting for the master's purposes in a matter which concerned his master, and in no way on his own account. Even if he had been told not to go into the box he would not thereby have been taken outside the scope of his employment. C.f. Limpus v. L.G.O. (1862) 1, Hurlstope and Coltman, page 526.
In these circumstances I ask myself what the Judge meant by saying that Rands "acted outside the scope of his employment". He probably meant that it was no part of Rands' duty to go into the box. That is true no doubt. But it does not defeat his claim altogether. It is no part of any man's duty to be careless or disobedient; but his carelessness and disobedience does not necessarily defeat his claim altogether. In ( Stapley v. Gypsum Mines 1953 Appeal Cases) it was no part of Stapley's duty to enter the stope. He, like Rands, did what he must have known was dangerous and that he ought not to do it. Yet the House of Lords held that he was entitled to damages, though the damages were reduced, of course, owing to his own negligence. So also in this case I think that whatever Rands did wrong goes tocontributory negligence, but does not discharge the farmer altogether if he also was negligent.
I may add that the evidence clearly showed that Moss was negligent and the Judge said he was; and if the Pleadings had sought to make the farmer liable for Moss's negligence, I do not think there could have been any answer to it: See ( Stapley v. Gypsum Mines 1953 Appeal Cases).
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