B e f o r e :
LORD JUSTICE SELLERS
LORD JUSTICE DEVLIN
and
LORD JUSTICE DANCKWERTS
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Between:
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MARLENE BREEZE (WITHERS) (Married Woman)
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-v-
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PERRY CHAIN COMPANY LIMITED
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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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Mr. DAVID CROOM-JOHNSON. Q.C. Mr. PHILIP OWEN (instructed by Messrs. Clifford-Turner & Co.)
appeared on behalf of the Appellants (Defendants).
Mr. H. E. HOOSON, Q.C. and Mr.BRUCE GRIFFITHS (instructed by Messrs. Bvill & Colemand)
appeared on behalf of the Respondent (Plaintiff).
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
(without calling upon Counsel for the Appellants to reply)
LORD JUSTICE SELLERS: It is, I suppose, to be accepted (as Mr. Hooson seemed to think it was) that gratitude is not to be found in industrial relationships, but this present claim by the plaintiff against her employers, the defendants, does seem to me to have an element of ingratitude. When she was a girl of some 17 or 18 years of age she went into the employment of the defendants, who apparently manufacture component parts for bicycles. She continued in her employment for some 5 or 6 years before anything untoward occurred to her, but apparently she has a skin which is susceptible to certain ingredients in lubricating grease, oil and paraffin, which she used over those 5 years in the course of her work. She had to assemble some parts. In the first task, which has been referred to as job No. 1, she was assembling ball-bearing cases, something to do with the hub of a bicycle, and placing a dust cover over the assembly. In the course of that, in the interior I think of the hub - in the lining- she had to put some grease. Unfortunately — and I do not think I minimise in any way the seriousness of dermatitis or skin trouble of this sort -— she did develop trouble to such an extent that, having been employed from 1951 on the same work, on 9th April, 1956, she had to stop work as she had developed skin trouble on both hands. She was off for 3 or 4 weeks. No one, I think, has suggested that the employers could be blamed for that misfortune. They had recognised that there are some people — although happily not all — who are affected by grease and they had taken all reasonable precautions by providing gloves if the operator wished to wear them and by providing cream, which was thought then at least to be some protection against the irritant in the grease, and no breach of duty was established in any way. The girl was sufficiently informed of those matters. There were notices up, and there were ample washing facilities, as the judge found - hot water and so forth.
Having been off work for 3 or 4 weeks, she came back on the 14th May, 1956, with a certificate from her panel doctor which was & "clean" certificate, and she asked for work. She did request — or at least it was suggested; I am not sure whether it emanated from her.-- that she should go to some other employment. I think she did ask for a change. The defendants through their servants a Mr. West and a Mr. Brown looked about for another employment, and she entered on what has been described as job No. 2, which was the assembling of a driving sleeve. That was free from grease and it was said to be, and thought I am sure quite genuinely to be by Mr. Brown and Mr. West, the driest job available in the factory, having regard to the sort of work she was qualified to do and was seeking to do, which was this automatic assembly work. She worked at that task from the 14th May for a relatively short period until the 22nd June, when she was off work again until the 14th August of 1956. One has, as one traces the history later on, to recognise that much later, in 1959, there was an outbreak of dermatitis and it may be that this trouble in June was a recurrence of and a sequel to her original dermatitis in April, 1956, but it is said that she was in contact between May and June with another different substance from that which was the cause of complaint in the period No. 1 and that that had played its part in producing the akin trouble in June. She was off then for 7½ weeks, which was a longer period than her first absence from work but not, I think I might say, an unduly long period having regard to the experience one has of the effect of skin troubles of this sort.
She returned again and asked for work on the 14th August, 1956, again producing a "clean" medical certificate. She sought, and was placed upon, her previous job No. 2, which she had been doing after her return in May — that is, the driving sleeve assembly. Again skin trouble developed, and on the 26th September she was off for a fairly long period. By the 12th November she had returned. She asked for work and accepted work again on job No. 2, the same work which she had received when she asked for a change of employment on the 14th May previously. But, when she returned on the 12th November, aha asked - very properly - if she could be transferred elsewhere, to see if that would be any better employment without this unfortunate consequence. The only work available free from contact with anything that might be said to be harmful, or substantially so, was in the packing department. But the employers, perhaps of their own accord and certainly under trade union influence, were not prepared to dismiss someone in the packing department in order to give employment to the plaintiff but had it in mind to give her different employment if a vacancy occurred. It did, in January, 1957, and from then onwards she went to her job No. 3, which was, as I understand, packing in greaseproof paper the complete hub assembly. She was on that work for the whole of 1957 and 1958 and was not apparently seriously inconvenienced by dermatitis until January of 1959. Than she went off work again.
Now, for some two years she had not been in contact with the Material which was in use in job No. 2, and apparently there was not much grease, although perhaps a little, in job No. 3. That occurrence or outbreak of dermatitis may well be accounted for — as may be, if the facts were known, the intervening two — by the original skin trouble in the early part - April - of 1956 which had been brought en by her earlier employment. It has not been so regarded in this case. In fact no one has sought to establish, as far as I can see, what did cause the akin trouble in January, 1959. It may of course have been brought about by many domestic matters wholly apart from her work - as indeed may the others. But one must concede that whilst at work there was contact with certain ingredients which might bring on skin trouble.
While she was still at work — as I understand, up to the time of the trial she was still at work, perhaps with this temporary break in 1959 -- a writ was issued claiming damages against her employers alleging (if I understand the only one of the allegations which has survived and been found by the judge) that, knowing that she was suffering and had suffered from dermatitis from about the 14th May, 1936, until the 26th January, 1957, they employed her upon work involving contact with lubricating suds which they ought to have known were irritant and might exacerbate or cause dermatitis. The learned judge, in finding in the plaintiff's favour — for he did find in her favour and he awarded her some £480 odd damages — said that ha had come to the conclusion that the defendants "were negligent in permitting her to continue with the work she did on the driving sleeve assembly in and after May 1956". That is said to be a breach of duty found against the employers at common law — because no statute is invoked in the circumstances of this case. The position was (as I have indicated) that when the plaintiff returned after the first breakdown of the skin of her hands in May, 1956, there was this discussion about getting other work and it would appear clear that the defendants gave her what they thought to be the best available work which they had. In fact if she had not taken that work it would seem that she would not have worked at all and would not have earned any wages, which apparently she sought to do. I cannot believe that the common law requires employers to refuse to employ a person who is willing to work for them simply because they think that it is not in the person's best interests to do the work. That would be imposing a restriction on the freedom of the individual which I think is foreign to the whole spirit of the common law of our country. That they have the right to refuse to employ her is clear, and many employers might be vary selective in the workpeople they take on for various processes. But that is to the disadvantage, it may well be — not necessarily to the physical disadvantage but to the financial disadvantage — of many who would be quite willing to do the work which is there available if they could only be engaged for it.
In this ease the work to which the plaintiff was put when she got the alternative employment was, it would appear quite clear (and I think it was unchallenged), intended to be the driest work that they had. The component parts which she had to assemble for the driving sleeve portion of the bicycle came (in order to remove some of the roughness of the metal, I think) through a bath consisting of some lubricating suds which had some oil in the proportion of 1 to 42 of water. That was heated up to 170° Fahrenheit and apparently had the effect of smoothing, out the roughness of the component. After the component parts had parsed through that bath they were then put into a hot air chamber of some sort, where they were to dry, and having been dried out they were then available, when they cooled, for the operator who had this task (which was the plaintiff's task at the tine) to take them and assemble them. The ease that was made was that this was not suitable employment for her because, having been through this bath of lubricating suds, they had attached to them sufficient of the deleterious ingredients in the suds (which was the mineral oil, I understand) to do some further damage to the skin of the operator's hands.
The fact is that this process, properly carried on, as I understand it - perhaps it is too much to use the word would ensure, which was the case that the plaintiff was trying to advance, that it had to ensure - but would in all probability result, if it were properly carried out, in the drying process removing all liquid and all deleterious matter from the point of view of the plaintiff. That was the view of the employers when they put her on this work. She went on it not once, not twice, but three times, without a word of protest that the parts which she had to assemble were coming out wet or unsuitable for her to assemble or in a manner in which they were likely to cause her any trouble. If it had been just once that she had done the work and then said "Well, I cannot do that because I think there is a substance there which is going to do me harm", that would have been one case, but she comes back again on the 14th August, 1956, and continues with the same work without any protest, and again later in the year, in the November. All the time, one of those who had befriended her in finding her some work, Mr. West, was, on his evidence, about the premises all day long.
When the case comes to be made before the court, it is said that the employers should not have put her on this work, and when it is investigated as to why, it is said it is because these things were coming out wet. As an issue of fact, the learned judge seems to have preferred the plaintiff's evidence that they were. Quite why, when one looks at the evidence, I find it, with great respect to the learned judge, very hard to understand, because there was in fact a device (it was I think an automatic device) whereby the component parts on a tray travelled through the lubricating suds into this drying process and after they were dried (as Mr. Brown clearly said in evidence) they had to cool, whereby one would have anticipated that the moisture would go off in the cooling process, and then they were stacked in boxes and stood on and before they were called upon for assembly. But as far as the defendants were concerned, though any workman might lapse from time to time and not do his job properly and it may be that on occasions the operator who superintended the washing of the parts hurried it a little too much and did not allow them long enough to dry, I cannot think that it was a very frequent occurrence. At any rate, the employers were familiar with their process, and as far as I can see they need not be aware that from time to time one of their employees might fall in his duty. But as far as this case is concerned, if this plaintiff had any complaint against a fellow-operator so closely adjacent to her in the process which had to be carried on, she has not alleged it. She never alleged it to Mr. West, who was about every day. She never alleged it in her work. She went back to the same circumstances that she had had on two occasions before, having worked there three separate times, and not a word was said about it. She had a good ground of action at common law, if it was justified, by including in her claim, and perhaps putting in her claim exclusively, a liability of the defendants for the negligence of one of their servants, a fellow-servant of the plaintiff herself. That cause of motion has been open to a worker in a factory for a long time now. But not a suggestion of that is made; and whilst on this appeal she sought to make some amendment so as to take advantage of such findings of the learned judge as there were in his judgment in order to establish that type of responsibility of the defendants, this court thought, having regard to the course of the trial, the pleadings, and the way the evidence developed, that it was too late to raise any such allegation. For myself, on this evidence (and we have had most of it read either by My. Croom-Johnson or by Mr. Hooson) I do not think that such a case was established.
I feel the greatest doubt as to whether the plaintiff could show that there was any serious amount of lubricating suds left on the component parts which she had to handle from time to time; and in any event, when one looks (as we did look when our attention was drawn to the matter by the counsel for the appellant) at the evidence of the expert, Dr. Leighton Rees, as to the amount of damage which could ensue from such a diluted liquid only very partially left on any component part, it would, not be very convincing for deriving a conclusion that that really was the serious cause of any recurrence of the dermatitis. But be that as it may, that line of action was not pursued and this appeal has to be decided on the basis on which the learned judge decided it. With great respect to him, I think there is no such duty at common law requiring an employer to dismiss someone rather than to retain him or her and allow him or her to earn their wages, notwithstanding that there may be some risk. The duty remains the same. The duty of the defendants in this case was to take all reasonable care for the plaintiff in the employment in which she was engaged, including of course a duty to have regard to the fact that she had had dermatitis previously. Beyond that I do not think the common law can be invoked.
Applying that standard, and no higher one, the evidence in this cast; I think does not establish any breach of that duty. The plaintiff had the advantage of her wages and her employment in circumstances in which every consideration was given by the defendants in order to assist her; and I add (as I think I started by saying) that it seems to me a little lacking in gratitude to bring this action against her employers when she has had the advantage which she sought to obtain.
I would allow the appeal and find in favour of the defendants.
LORD JUSTICE DEVLIN: The only allegation of negligence with which we have to deal is the one that is framed in paragraph 6(c) of the Statement of Claim, which is as follows:
"Knowing that the plaintiff was suffering or had suffered from dermatitis, from about the 14th Hay 1956 until about the 26th January 1957, employed the plaintiff upon work involving contact with lubricating ends, which they knew or ought to have known were irritant, and likely to exacerbate or cause dermatitis".
The learned judge has found that when the plaintiff returned to work in May, 1956, having suffered from dermatitis but being declared by her doctor to be fit for work, they ought not to have put her to work of a sort which contained a risk (although, as he says, "a small risk") of recrudescence of this trouble. They did do so, and the learned judge finds them negligent in so doing. He states his conclusion in the words which my Lord has read from page 10"C" -
"....these defendants were negligent in permitting her to continue with the work she did on the driving sleeve assembly in and after May, 1956".
It has not been suggested that the defendants deliberately exposed the plaintiff to risk. They clearly were anxious to give her the sort of work that she wanted. But it is said that they ought to have appreciated that the job that they selected for her was not in fact safe for her and refused her permission to do it. In my opinion there is no legal duty upon an employer to prevent an adult employee from doing work
which he or aha is willing to do. If there is a slight risk, as the judge has found, it is for the employee to weigh it against the desirability, or perhaps the necessity, of employment. The relationship between employer and employee is not that of a schoolmaster and pupil. There is no obligation on an employer to offer alternative safe employment, though no doubt a considerate employer would always try to do so—as the defendants thought they had done here. Nor is there any obligation on an employer to dismiss an employee in such circumstances. It cannot be said that an employer is bound to dismiss an employee rather than allow her to run a small risk. The employee is free to decide for herself what risks she will run. I agree with what my Lord has said, that if the common law were to be otherwise it would be oppressive to the employee, by limiting his ability to find work, rather than beneficial to him. If the employer were to conceal the risk or fail to give the employee information which he had were to conceal the risk or fail to give the employee information which he had and which might help her to evaluate it properly, there might perhaps be a liability; or I suppose there might be a case in which an employer impliedly warranted that a job was safe for a particular employee. I do not need to go into those questions because that is not the breach of duty which is alleged here. It may be also (on the principle of Paris v Stepney Borough Council) that when the susceptibility of an employee to dermatitis is known there is a duty on the employer to take extra or special precautions to protect such an employee. But it is not suggested that there were any extra or special precautions here which could have been taken. In my judgment the duty which is implicit in the learned judge's finding of negligence does not in law exist, and therefore his finding should be set aside.
There is, however, another matter with which we have been invited to deal in the course of this appeal. I said that it was not suggested that there ware any extra or special precautions that ought to have been taken in connection with the work which the plaintiff was given to do in May, 1956. It has, however, been suggested that the defendants or their servants failed to take the ordinary precautions which ought to have been taken in connection with that work in that they failed to see that the components which the plaintiff had to handle had been properly dried. That has nothing to do with the plaintiff's particular disability. Any employee, whether she had suffered from dermatitis or not, would be entitled to complain if she was put to work on components that were supposed to be entirely dry and free from all deleterious substances if, through the negligence of one of her fellow-employees, they were found to be in a harmful condition.
I have read the allegation which is the only relevant one in which the learned judge made his finding, and it is plain to me that the way in which it is to be interpreted is that the defendants, dealing with an employee who had a special susceptibility to dermatitis, gave her work which necessarily brought her into contact with lubricating suds which they ought to have known were irritant. But the way in which the evidence came out on that allegation was this. It was, I think, conceded by he defendants - at any rate it was established -that lubricating suds were irritant, and that they knew or ought to have known it. But they said that in fact the work which the plaintiff did did not bring her into contact with lubricating suds at all because the components which she had to handle were in fact quite dry. The plaintiff had alleged that they were not dry. Indeed, the plaintiff went so far as to allege, not merely that they were frequently not dry, but that they were always covered with lubricating suds. The evidence for the defence, on the other hand, was that although, through the negligence of some individual operator, they might not always and invariably be dry, the general system was to secure their dryness. There was a drying machine installed, and it was only if the operator negligently took out a particular component before the proper time had elapsed that that component could come up otherwise than dry. On that issue the learned judge found in favour of the plaintiff.
Upon that, the plaintiff night, I suppose have sought to shift her ground and to say that the work was not done properly, that there was negligence on the part of some individual operator and as a result of that negligence she had been brought into contact with suds. But the case did not proceed in that way, and it is quite plain that the learned judge, although he made the finding which I have stated, that the components were not free from suds, nevertheless proceeded on the basis of the allegation in the Statement of Claim which I have read, interpreting it as 1 have interpreted it! for he says, at the bottom of page 9 of his judgment, "They" (that is the defendants) "ought to have been careful and vigilant to avoid putting this plaintiff on to work which contained risk, although a small risk, which this work in fact did". That I think must mean "inevitably contained risk". If the fact was that the work, if properly done, contained no risk at all, then the finding would of course be that the negligence was not in putting the plaintiff on to work which contained risk but in not seeing that the work was properly done so that it was, as it should be, quite safe for the plaintiff to do.
It was in those circumstances that Mr. Hooson, without having in the Statement of Claim any allegation of negligence against any fellow-workman, without having any finding of the learned judge to that effect, and without having any cross-notice of appeal to raise the point as an alternative way of supporting the learned judge's judgment, sought leave to put in a cross-notice so as to raise an allegation of negligence of this sort. I say "of this sort" because he disclaimed the desire to place the blame where fairly and squarely it ought to be placed, namely, that some individual operator had been negligent, and put it upon the more general ground that some other servant of the defendants ought to have observed that the individual operator had been negligent. The learned judge has said, rightly or wrongly, that some other such person, such as Mr. West, had an opportunity of observing that, Mr. Hooson seeks to put that forward as a ground of negligence and to say that the learned trial judge should have found the defendants negligent in that they failed to take reasonable precautions to prevent the plaintiff from coming into contact with lubricating suds, which they could have done "by ensuring that the said components which she had to handle were free from such suds".
We refused to give leave for that cross-notice to be served, and I think that we were right in that decision. It is quite true that the learned judge preferred the plaintiff's evidence on this point to that of the defendants. I agree with ay Lord that it is very difficult, looking at the evidence merely as a transcript, to see why the learned judge should have preferred it. Naturally he does not go into much detail on the point, because it was not the issue with which he had to deal or the complaint as to which he had to ascertain whether it was made out or not. In those circumstances it would be unjust to the defendants, in my opinion, if we ware not to give them an opportunity of meeting the allegation of negligence that is in the cross-notice by calling such evidence and going into such further detail as they might think necessary for the purpose. That would mean a new trial. - and I think Mr. Hooson did concede that in the circumstances a new trial would have been the appropriate order. It is one which this court is always very reluctant to make. It has to consider the merits of the case generally; it has to consider the amount involved. In all the circumstances of this case I do not think it would be a proper exercise of discretion for this court to order a new trial in order that the matter should be reopened again. It was for these reasons, as I understand, that we refused to allow the cross-notice; and, the learned judge's judgment being erroneous for the reasons I have given, the appeal should, in my judgment, be allowed.
LORD JUSTICE DANCKWERTS: I agree with the judgments which have been delivered, and I do not think it is necessary for me to add anything more.
(Appeal allowed, with costs here and below)
