B e f o r e :
LORD JUSTICE SINGLETON
LORD JUSTICE DENNING
AND
LORD JUSTICE HODSON
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Between:
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JONES
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v.
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LIVOX QUARRIES, LTD.
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SAME v. SAME
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Ltd., Room 392, Royal Courts of Justice, and 2, New Square, Lincoln's Inn, London, W.C.2.).
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Counsel for the Appellant: MR ARTHIAN DAVIES, Q.C. AND MR NORMAN FRANCIS, instructed by Messrs Kinch & Richardson, Agents for Allen Pratt & Geldard, Cardiff
Counsel for the Respondents: MR H.V. LLOYD-JONES, Q.C. AND MR P. WIEN, instructed by Messrs Botterell & Roche, Agents for T. S. Edwards & Son, Newport, Mon.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
LORD JUSTICE SINGLETON: This is an appeal by the Plaintiff from a judgment of Mr Justice Hallett given at the Cardiff Assizes on the 23rd November, 1951, and we also have before us, and have heard argument upon, a cross-appeal of the Defendants.
The Plaintiff, Mr William Henry Jones, was employed by the Defendants at their quarries, and throughout his life he had been engages on work of a quarrying, building and labouring character. He started as a labourer with them, but for some two years he had been employed on a machine which bore into the cliff to bring down material. On the 28th February, 1951, he had been working at the quarry face as usual. There were there were three machines in or aboput the quarry on that day; sometimes there were four, but on this day there were only three, and they are shown somewhat indistinctly on the photographs which are before us. There was, first, an excavator of the ordinary kind, the second one shown on photograph No.1 is a machine which is called a traxcavator, and the third one is the dumper. The traxcavator did work of a similar kind to that done by the excavator. the dumper received material which had come from the quarry face and carried it away to the place to which it had to go. The breaking-off time was roughly 1 o'clock, and about that time on the 28th of February the whistle was blown to notify the men who were working there that lunch in the canteen was ready for them. they then had to make a little journey from the quarry face to the canteen, and most of them did that by walking. The dumper had a load, and that load had to be taken somewhere in the direction of the canteen. The excavator might have remained at the quarry face, but the man who drove it decided that he would drive it down to the canteen. I suppose he preferred to do that rather than walk. I find it a little difficult to see why he should, for the speed of the traxcavator was about 2 ½ miles an hour, or thereabouts. When the traxcavator driver wished to go towards the canteen he had to go around the excavator and then turn to his left. The position which he would then reach is shown by photograph No. 2. At the time that photograph was taken he had driven the traxcavator round the excavator, and he was approaching the bottom of the road from the quarry face towards the canteen. He went ahead of the dumper driver, and Mr Jones, the Plaintiff, saw him, and as the traxcavator passed by him he, who wished to go to the canteen, just jumped on the back of the traxcavator; he stood on a bar at the back, that which is called the towbar, and he was holding on to two uprights on the traxcavator. The driver of the traxcavator sits towards the back of the machine, and it would appear that the Plaintiff was quite close behind him, but the driver of the traxcavator said that he did not know the Plaintiff was there, although he had known he had travelled in some such position on another occasion. Just after the traxcavator had rounded the excavator, the driver of the traxcavator had to change gear, and he stopped, or slowed down, in order to do so when he was about the bottom of the slope. Almost at the same time the driver of the dumper brought the dumper around the excavator. He had waited for a short time because he had to clean something off his brake, but that work only took a short space to time, and he followed the traxcavator some few seconds after the traxcavator had gone. The dumper is driven at a greater speed than the traxcavator, probably at 4 ½ or five mile an hour. The driver of the dumper took his vehicle round the excavator, turned to the left in order to reach the road towards the canteen, and he ran into the back of the traxcavator, which was probably stationary at the time. Some part of the Plaintiff's body was behind the traxcavator; his legs were caught, and in the result both legs had to be amputated. At first they were amputated below the knee, but some months later a further amputation had to be done to both legs, and the second amputation meant that in the case of one leg he had a thigh about 12 inches long, and in the other the length of thigh which remains is 13 inches long. That was a terrible injury suffered by him, and he brought this action against the employers claiming damages for negligence.
Before I go into the claims which were made on the one side and on the other, I should say this. There was evidence given by various witnesses that the men who work at the quarry were forbidden to ride upon the vehicles; there was no reason whey they should, they were forbidden, as the Judge found, to ride upon, or travel upon, any of these vehicles. The Plaintiff himself had been told that he was not to do so; consequently, his stepping upon the back of the traxcavator was something which he ought not to have done, and it was contrary to orders which had been given to him.
This action commenced on the 5th July, 1951, and in the Statement of Claim the Plaintiff, having set out the facts, alleged that the driver of the dumper, as a servant of the Defendants, was negligent in that he drove into the back of the traxcavator and caught the Plaintiff's legs; he further alleged negligence on the part of the driver of the traxcavator , but nothing resulted from that. No one now suggests that the driver of the traxcavator did anything wrong, and the Plaintiff's case as against the Defendants was that the driver of the dumper which was following was guilty of negligence ion driving in the way in which he did, and particularly in failing to keep proper look-out, and that through that negligence the Plaintiff met with these dreadful injuries.
The Defence denied negligence, and in Paragraph 5 pleaded: "Further, or in the alternative, if the Plaintiff sustained the alleged or any injuries he caused or contributed to cause the same by his own negligence. -- Particulars. The Plaintiff climbed on to and rode upon the back of a traxcavator when he knew that such conduct was dangerous and was forbidden by his employers, the Defendants."
The case came before Mr Justice Hallett, and after hearing the evidence and the very complete argument of the learned Counsel the learned Judge reached the conclusion that the Plaintiff had established a case of negligence against the Defendants in that the driver of the dumper had failed to act as a reasonably careful driver of such a vehicle should have done, and in particular that he had not kept a look-out, such as he should have kept in the circumstances. Mr Justice Hallett considered, too, upon the facts that the Plaintiff himself was guilty of negligence which contributed to the accident in that he had placed himself in a position of danger upon the traxcavator. The learned Judge then had to consider the terms of Sections 1 and 4 of the Law Reform (Contributory Negligence) Act, 1945, and he decided that the Plaintiff himself was one-fifth responsible for the damage which had occurred to him. He found, and it was agreed, that the out-of-pocket loss, or special damage, sustained by the Plaintiff was the sum of £192, and he added to that the sum of £6,300 damages, so that the Plaintiff was held entitled to recover four-fifths of "6,492, which in fact was £5,193.12s.0d. by way of damages.
The Plaintiff entered an appeal against that judgment, and two questions were raised by Mr Arthian Davies on his behalf. The first was that the damages awarded were too small, and that the sum of general damages which the Judge said would have been £6,300 but for the Plaintiff's share in the responsibility, ought to be much more than that, and he asked this Court so to say. The second point raised by Mr Arthian Davies on behalf of the Plaintiff was that in the circumstances the Judge ought not to have found the Plaintiff to blame at all, so that the Plaintiff ought to receive damages on the basis that the responsibility for the accident was wholly upon the Defendants.
The cross-appeal of the Defendants was based upon the submission put forward by Mr Lloyd-Jones that there was no responsibility upon the Defendants at all; that their driver was not negligent; he submitted that the Defendants owed no responsibility to the Plaintiff when the Plaintiff was upon the traxcavator against orders; and, furthermore, that as the driver of the dumper had no reason to think that anyone might be so placed, this sort of accident was not forseeable, and there was no negligence on the part of the driver of the dumper.
I propose to deal with that submission, which really arises upon the cross-appeal, first. Mr Justice Hallett in the course of his judgment used these words:
"On the other hand, despite strenuous efforts by Mr. Lloyd-Jones on his behalf, I feel no doubt whatever that the dumper driver was negligent. I have done my best to understand his point of view and explanations. and excuses, but I cannot construct any view of this accident which is compatible with the dumper driver having driven in a reasonable manner at all. I think it is clear on the evidence in this case that he cannot have been keeping a good look-out and driving with proper care and yet have run into the back of the traxcavator. I do not think I am called upon to examine the facts in detail. They are all there in the Shorthand Note, and that is the view at which I have arrived."
It is sufficient for me to say that I find myself in complete agreement with the judge upon that part of the case. The dumper driver was in charge of a vehicle which could only move slowly. He said he took a very sharp left-hand turn round the excavator; the traxcavator was some little distance further on. I do not see for myself how the driver could have been keeping any sort of look-out when he went round almost a right-angle, and yet failed to see the traxcavator either before rounding the excavator or afterwards in time to stop. I have no doubt whatever in my mind that the driver of the dumper was guilty of negligence.
Mr. Lloyd-Jones submits that there was no responsibility on the driver in the circumstances, because he was not to anticipate that there would be a man on the traxcavator, and, as he pointed out, this was not an accident which arose upon a highway. The evidence shows that there were a number of people who worked at the quarry face, all of whom except two could be expected to be on their way to lunch immediately after the whistle sounded, and it appears that sometimes the drivers of vehicles took a few of them down that way instead of walking. In those circumstances, it was the duty of the driver of the dumper to keep a proper look-out, and he owed it to every other person who worked there, and to any person who might reasonably be expected to be in a position by which he would pass, and that duty was owed to this Plaintiff even though he was on the traxcavator. There are two answers given by the driver of the dumper himself which show that he might well have thought that the Plaintiff would take a lift upon the traxcavator. He said that the Plaintiff had asked him for a lift on the dumper; he refused, and he thought the Plaintiff might quite well have taken a lift upon the traxcavator. It seems to me that the cross-appeal of the Defendants based upon the submission that there was no negligence on the part of the driver of the dumper fails.
The matters raised by the appeal present more difficulty. I propose to deal now with the submission of Mr. Arthian Davies that the learned Judge ought to have found that the accident was wholly due to the negligence of the Defendants' driver, and that the Plaintiff himself did not contribute to it. The way in which the case was put by Mr. Arthian Davies in opening the appeal was that the fact that the Plaintiff was standing upon the traxcavator was not in any sense a cause which operated on the accident which befell him; in other words, he said the real cause of this accident to the Plaintiff was the negligent driving of the driver of the dumper, and though the Plaintiff, on the Judge's finding, ought not to have been on the traxcavator, that had nothing to do with the accident which befell him. I confess there is something which I find intriguing in that submission. There were, in the course of the argument, a number of instances given; one was the case of someone who negligently and improperly sits upon an unsafe wall, and the driver of a motor-car not keeping a proper look-out runs into the wall and knocks it down; is the person sitting on the wall, who is injured, guilty of negligence which contributed to the accident? In those circumstances it might well be said he would not be, but every case depends upon its own facts. We have had a considerable argument addressed to us upon the judgments in this court in Davies v. Swan Motor Co. (Swansea) Ld. which is reported in [1949] 2 K.B. 291. That was a case in which a man had been killed, and his widow brought the action. The man had been standing on steps at the side of a dust lorry, standing in a dangerous place, and the lorry was travelling along a narrow road at a time at which a bus tried to pass the lorry, and the man was unfortunately killed. In that case this Court held that the man Davies, who was killed, was himself one-fifth responsible for the damage because of his negligence in standing upon, or being upon, the side of the dust lorry. As I have said, facts in all cases differ, and I do not find very much help towards the decision in this case from the report of that case. It is sufficient, I think, to read two passages from the judgment of Lord Justice Bucknill . The first is at the bottom of page 308:
"In addition to that answer to the point made by Mr. Glyn Jones, there is another answer, viz., that when one is considering the question of contributory negligence, it is not necessary to show that the negligence constituted a breach of duty to the Defendant. It is sufficient to show lack of reasonable care by the Plaintiff for his own safety. That is set out clearly in the speech of Lord Atkin in Caswell v. Powell Duffryn Associated Collieries Ld., as follows:
'But the injury may be the result of two causes operating at the same time, a breach of duty by the Defendant and the omission on the part of the Plaintiff to use the ordinary care for the protection of himself or his property that is used by the ordinary reasonable man in those circumstances. In that case the Plaintiff cannot recover because the injury is partly caused by what is imputed to him as his own default. On the other hand, if the Plaintiff were negligent, but his negligence was not a cause operating to produce the damage, there would be no defence.'"
Those words of Lord Atkin were spoken before the Law Reform (Contributory Negligence) Act, 1945, came into force, I think that they give some considerable help towards the solution of the question now before this Court.
The other passage Lord Justice Bucknill's judgment to which I wish to refer is towards the bottom of page 313, where the learned Lord Justice said:
"I ask myself this question in the ordinary plain common sense of this business: Did the negligence of the deceased man in standing on the steps of the lorry right up to the moment of the collision (or, at any rate, until he tried to climb inside the lorry) contribute to his injury? I think that what he did clearly contributed to his injury."
Lord Justice Bucknill there puts to himself what he describes as the ordinary plain common sense of this business. I believe that to be the test in all these cases. It was submitted to us that the prohibition against riding upon one of these vehicles was because of the danger of a man falling off, or the danger of his becoming trapped in some part of the machine. I think there is more than that to be considered. The Plaintiff, in riding on the traxcavator, was disobeying the orders of his employers. In so doing he was exposing himself to danger. It may well be that the chief danger was that he might fall off, or be thrown off, or that he might become entangled in some part of the machine on which he was riding; but those were not the only risks to which he subjected himself. He had put himself in a dangerous position which, in fact, exposed him to the particular danger which came upon him. He ought not to have been there. The fact that he was in that particular position meant that he exposed himself, or some part of his body, to another risk, the risk that some driver following might not be able to pull up in time -- it may be because that driver was certainly at fault -- that is the view which the Judge took of this case, and I do not see that that is a wrong view. It is not so much a question of was the Plaintiff's conduct the cause of the accident, as did it contribute to the accident on the assumption that it was something of a kind which a reasonably careful man so placed would not have done. If he unreasonably, or improperly, exposed himself to this particular risk, I do not think that he ought to be allowed to say that it was not a cause operating to produce the damage, even though one may think that the prohibition against riding on the vehicle was not made with that particular risk in mind. Mr Justice Hallett felt great difficulty about this part of the case. So do I. My first impression was that the fact that the Plaintiff was upon the traxcavator had nothing to do with the accident. I think the real cause was the negligence of the driver of the dumper. The learned Judge considered the relevant authorities, and in particular he considered what was said by this court in Davies v. Swan Motor Co. (Swansea) Ld., to which I have referred. I agree with him that the responsibility of the Plaintiff for the accident was much less than that of the driver of the dumper. Still, when one has to consider the question of contributory negligence, I do not see that it can be said that the judge was wrong in finding that the Plaintiff, who deliberately put himself into a position which exposed him to this danger, was to some extent responsible for that which happened; in other words, I do not think it would be right for this Court on these findings to say that the learned Judge was wrong in law; it is not argued before us that the proportion of liability ought to be altered if, in fact, there was contributory negligence on the part of the Plaintiff. The submission that the Plaintiff ought not to have been found to blame at all fails.
I now proceed to deal with the appeal in so far as it is based on a submission that the damages awarded were inadequate. That, again, is a matter of great difficulty. I do not disguise the fact that if I had had to asses damages in this case I would have awarded a larger sum than the learned Judge gave. That does not mean that I would have been right and that the Judge was wrong. I firmly believe that unless there is something radically wrong with the assessment of damages in such a case the view of the trial Judge ought not to be disturbed.
Mtr Arthian Davie's submission is that when you examine the details of this case the sum of £6,300 by way of general damages is much to low. He asked us to approach the matter in this way: That this was a man of 42 years of age who was earning £7 a week, and who might have been earning more before long; and upon that basis he submitted the amount of damages awarde was really no more then loss of earnings; in other words, there was no allowance, or little allowance, for pain and suffering, or for the loss of the amenities of life; and he asked if a sum of £2,500 is taken by way of compensation for loss of the amenities of life in such a case as this, could anyone say it was too much? If I had to answer that question I should say that it is not; I am inclined to think that most Judges, if not all, would think that the sum of £2,500 for the loss of two legs and covering pain and suffering and the loss of the amenities of life was by no means too high; more likely it was to low, and it may be that considerably more than that should be awarded. the total awarded to the Plaintiff, if the Plaintiff had not been guilty of contributory negligence, would have been very nearly £6,500. We are asked to say that that is too low. W do not know the basis on which the Judge arrived at it. All such cases must include, or should include, compensation for loss of earnings, pain and suffering, and the loss of amenities of life. How mmuch for each is a matter for the Judge to determine, who has to bear those factors in mind although I do not say he has to arrive at a sum in pounds, or thousands of pounds, for each; he must do the best he can.
We have been referred to the authorities in which various expressions have been used to which this Court ought to interfere with a Judge's assessment of damages. We have to ask ourselves, it is said, was not this award inordinately low, or was not it such that, having regard to the factors that have to be considered, it could really be said the estimate of damages by the Judge was wholly erroneous. It seems to me that we have to ask ourselves: Are we in a position to say that this really was wrong, and wrong in a way which entitles this Court to interfere. I do not think we ought to do so. I know the great care taken by Judges of the Queen's Bench Division to see that people do receive adequate damages at the expense of a wrongdoer. I believe they do all that can be expected of them, and I do not think that this Court ought to interfere with the view of a Judge upon this matter merely because on or other, or perhaps, all three would have given somewhat more.
In my opinion, the appeal on each ground, and the cross-appeal, should be dismissed.
LORD JUSTICE DENNING: The facts are simple. The Plaintiff rode on the towbar of a vehicle, which was a careless thing to do because of the danger that he might fall off. Later, whilst the vehicle was almost stationary, another vehicle negligently ran into him from the back as he stood on the towbar, and he was crushed between the two vehicles. The question is whether he was guilty of contributory negligence such as to reduce his damages.
The case of Davies v. Swan Motor Co. (Swansea) Ld. which is reported in [1949] 2 K.B. 291 has been much discussed before us. It has been said that the three judgments in that case do not proceed on precisely the same lines. That is true, but it is, I suggest, quite understandable, because the Court was there feeling its way in difficult country. Since that time, however, the ground has been cleared considerably. It can now be safely asserted that the doctrine of last opportunity is obsolete; and also that contributory negligence does not depend on the existence of a duty. But the troublesome problem of causation still remains to be solved.
Although contributory negligence does not depend on a duty of care, it does depend on foreseeability. Just as actionable negligence requires the foreseeability of harm to others, so contributory negligence requires the foreseeability of harm to oneself. A person is guilty of contributory negligence if he ought reasonably to have foreseen that, if he did not act as a reasonable, prudent man, he might be hurt himself: and in his reckonings he must take into account the possibility of others being careless.
Once negligence is proved, then no matter whether it is actionable negligence or contributory negligence, the person who is guilty of it must bear his proper share of responsibility for the consequences. The consequences do not depend on foreseeability, but on causation. The question in every case is: What faults were there which caused the damage? Was his fault one of them? The necessity of causation is shown by the word "result" in Section 1, Sub-section (1) of the 1945 Act of 1945, and it was accepted by this Court in Davies v. Swan Motor Co. (Swansea) Ld.
There is no clear guidance to be found in the books about causation. All that can be said is that causes are different from the circumstances in which, or on which, they operate. The line between the two depends on the facts of each case. It is a matter of common sense more than anything else. In the present case, as the argument of Mr. Arthian Davies proceeded, it seemed to me that he sought to make foreseeability the decisive test of causation. He relied on the Judge's statement that a man who rode on the towbar of the traxcavator "ran the risk of being thrown off and no other risk." That is, I think, equivalent to saying that such a man could reasonably foresee that he might be thrown off the traxcavator, but not that he might be crushed between it and another vehicle.
In my opinion, however, foreseeability is not the decisive test of causation. It is often a relevant factor, but it is not decisive. Even though the Plaintiff did not foresee the possibility of being crushed, nevertheless in the ordinary plain common sense of this business, the injury suffered by the Plaintiff was due in part to the fact that he chose to ride on the towbar to lunch instead of walking down on his feet. If he had been thrown off in the collision, Mr. Arthian Davies admits that his injury would be partly due to his own negligence in riding on the towbar; but he says that, because he was crushed, and not thrown off, his injury is in no way due to it. That is too fine a distinction for me. I cannot believe that that purely fortuitous circumstance can make all the difference to the case. As Lord Justice Scrutton said in In re Polemis and Another and Furness, Withy & Co. Ld. reported in [1921] 3 K.B. 560, at page 577:
"Once the act is negligent, the fact that its exact operation was not foreseen is immaterial."
In order to illustrate this question of causation, I may say that if the Plaintiff, whilst he was riding on the towbar, had been hit in the eye by a shot from a negligent sportsman, I should have thought that the Plaintiff's negligence would in no way be a cause of his injury. It would only be the circumstance in which the cause operated. It would only be part of the history. But I cannot say that in the present case. The man's negligence here was so much mixed up with his injury that it cannot be dismissed as mere history. His dangerous position on the vehicle was one of the causes of his damage just as it was in Davies v. Swan Motor Co. (Swansea) Ld.
The present case is good illustration of the practical effect of the 1945 Act. In the course of the argument my Lord (Lord Justice Singleton) suggested that before the 1945 Act he would have regarded this case as one where the Plaintiff should recover in full. That would be because the negligence of the dumper driver would then have been regarded as the predominant cause. Now, since the Act we have regard to all the causes, and one of them undoubtedly was the Plaintiff's negligence in riding on the towbar of the traxcavator. His share in the responsibility was not great -- the Judge assessed it at one-fifth -- but, nevertheless, it was his share, and he must bear it himself.
We were referred by Mr. Arthian Davies to the Canadian case of McLaughlin v. Long. reported in 1927 Supreme Court Reports at page 303. In that case a boy riding on the running-board of a car was flung off when the car crashed owing to the driver's negligence. The boy recovered full damages without any reduction. The case seems to have proceeded on the ground that the boy was on the car with the tacit consent of the driver and was not guilty of contributory negligence. I confess that I do not follow this. If people choose to ride in a dangerous position, surely it is their own fault, even if the driver acquiesces in it. If the boy was guilty of contributory negligence, I should have thought it plain that his negligence was one of the causes of his injury, though the driver's negligence was, of course, the principal cause. The explanation of the decision may be that in 1926 the doctrine of last opportunity was still influential in Canada, as, indeed, it was here at that time. But it is so no longer, at any rate not here.
It all comes to this: If a man carelessly rides on a vehicle in a dangerous position, and subsequently there is a collision in which his injuries are made worse by reason of his position than they otherwise would have been, then his damage is partly the result of his own fault, and the damages recoverable by him fall to be reduced accordingly.
LORD JUSTICE HODSON: The Plaintiff in this case appealed, in the first place, from the award of damages. He is a man of 42 years of age, and as a result of the accident he had both of his legs amputated above the knee, so that he will have to manage as best he can with artificial limbs, and the learned Judge found that, in his view, it would be difficult for him to find any sedentary employment. he lives in a rural district, and he has always worked in an open-air occupation as a labourer in a quarry, and therefore this is a very serious injury so far as he is concerned, and one which in the learned Judge's language, merited a really large award.
It is quite clear to me that the learned Judge gave this matter, as Judges always do, most serious consideration, and he arrived at the figure of general damages of £ 6,300. Bearing i mind what has been said from time to time about appeals on questions of damages, I think this is a case in which it is quite impossible for this Court to interfere with that award.
The next point raised by the Appellant was not only an important one, but also an interesting one, because he relies on a finding of the learned Judge which he said, if correct, entitled him to succeed entirely not to have his damages reduced by one-fifth, or any other proportion, which the learned Judge or this Court might assess, since the Plaintiff was injured because of the negligent act of the driver of the dumper which ran into him from behind when he was travelling on the back of a thing called a traxcavator. The Plaintiff's case in this Court was that the fact that he was exposing himself to a risk in travelling in a dangerous place in defiance of orders given to him by the employers was nihil ad rem; it had nothing to do with the cause of the accident, and he relied on the learned Judge's finding at page 34 of the transcript:
"This was a vehicle with tracks, not a vehicle with wheels, and it seems to me that in doing that, any man was running the risk, in travelling somewhere which was not a proper place to travel, of being thrown off - that is, I think, the risk which he ran, and no other."
If that is right, it could not be said that this man travelling in that place and not having been thrown off was the cause of the accident any more than it would have been the cause of the accident if he had been shot by the negligent act of a man with a shotgun who was firing at a bird in the neighbourhood and hit him while he was travelling in this dangerous position. I think, however, that in spite of the sentence which I have quoted, the learned Judge went beyond that finding in his conclusion, because at pages 30 and 31 of the transcript whilst a witness, Mr Ferrimas, was being cross-examined, the learned Judge made it perfectly clear that he wad to consider not only whether the action of the Plaintiff was in itself a dangerous action, but also whether it was a cause of the accident, and he reminded himself of the distinction between the causa sine qua non and the causa causans. At page 31, addressing Mr Lloyd-Jones, Mr Justice Hallett said:
"...If you mean in the sense that he was liable to fall off, I should have thought it was, pretty obvious. If you mean in the sense that he knew he was there and exposing himself to being charged in the back by another driver, it may be rather different."
That, I think, is vital on the question in this case: Was this man, riding in the position in which he was, exposing himself to the risk of being run into in the back by the driver of another vehicle? These vehicles were proceeding, apparently, on a regular course in and about the quarries on the way to the mid-day meal. The following vehicle, which was driven by the driver who was found to be mainly to blame for the accident, was loaded with stone; the leading vehicle, the traxcavtor, was a tracked vehicle which had to stop in order to change gear, and what happened here was that the following vehicle, a wheeled vehicle, ran into the back of the other, and the man who was travelling on the back of the leading vehicle was protruding to some extent from the back. The danger to which he was exposing himself was, in my judgment, not only the danger of falling off the vehicle, but also the danger of being injured in the way in which he was. I appreciate that this approach may lead to fine distinctions, but I think that is inevitable in considering almost any problem which one has to consider in these Courts; there comes a time when the line drawn is very fine. Mr Arthian Davies says that this conclusion ought not to be reached, partly, at any rate, because it is not open to the Defendants on the Pleadings, but I think it is so open. The relevant pleading is this:
"... If the Plaintiff sustained the alleged or any injuries he cause or contributed to cause the same by his own negligence. Particulars. The Plaintiff climbed on to and rode upon the back of a traxcavator when he knew that such conduct was dangerous and was forbidden by his employers." I think that covers this way of putting the case, and that the prohibition was not limited to or given simply because of the danger of falling off the vehicle, but because of other dangers which were inherent in riding on these vehicles in the circumstances in which they were used. Further, I think some assistance is gained from Davies v. Swan Moters (Swansea) Ltd., reported in 1949 2 K.B. at page 291, a case which was very much discussed before the learned Judge below. It was there contended by Counsel for the Defendants, who was seeking to impose liability, in part at any rate, upon the deceased man Davies, that his position upon the step embarrassed, or might embarrass, the Omnibus driver, and that the deceased man was acting in defiance of the orders and Regulations made by the Local Authority. Lord Justice Bucknill referred to the Regulations themselves and quoted them in full, Regulations which show that the Authority regarded the practice of riding on the steps of dust lorries as a dangerous practice which could be the cause of injury to the man himself and to other users of the road. Lord Justice Bucknill said at page 307 of the report: "By taking up that position he, to some extent, increased the width of the lorry, thereby making the passageway less broad. It is also one thing for a vehicle to pass another vehicle with wooden or iron sides, and another thing to pass another vehicle with wooden or iron steps attached to its sides and a living human body standing on those steps. The operation of passing is more difficult in the latter circumstances."
I appreciate that one must not press too far the analogy between road traffic cases and cases where accidents occur in quarries or places of work, where different circumstances arise; but here I think the finding of the learned Judge was right in that he decided that to a limited extent (the proportion arrived at being one-fifth) the Plaintiff did contribute to the injury which he suffered, and that the language of the Law Reform (Contributory Negligence) Act, 1945, Section 1 and the definition of "fault" in Section 4, which I will not reread, apply. I think, therefore, that the Plaintiff's appeal fails. So far as the cross-appeal is concerned, I agree with the learned Judge's finding entirely, and I have nothing to add. That also fails.
Order: Appeal dismissed with costs; cross-appeal dismissed with costs.
