Scottish Court of Session Decisions

At advising on 18th December 1959,—

LORD JUSTICE-CLERK (Thomson).—The machine at which the pursuer was working was used to scrape table tops. The tables one at a time are fed into the machine, the usual practice being that the assistant does the feeding and the senior man receives the treated table at the other end. What is called a "dead table" stands in front of the machine and the table is laid on this preparatory to being fed into it. As the dead table at the time of the accident extended only about fifteen inches, the tops, being considerably longer, had to be supported by hand at the end away from the machine. No trouble arose so long as the tables fed were solid, but a certain number of tables were not solid as they had a portion cut out. The result was that, when one of these tables with a cut-out was fed into the machine, there was a period of time when a gap occurred so that, if a hand got into this gap, it could be caught against the edge of the dead table, as the table moved into the machine. The remedy was simple and has now been made. It was enough to extend the length of the dead table, so that, when a cut-out table was placed on it to be fed into the machine, there was no hole. Apparently the machine has operated with cut-out tables for many years without mishap.

On the day in question the pursuer was in charge and he had a novice as his assistant. To begin with the tables being fed in were solid ones. Then, there arrived a supply of cut-outs. Some adjustment of the machine was necessary in order to accommodate the cut-outs which apparently were of a different thickness to the tables previously dealt with. This was the pursuer's responsibility. He took the first of the cut-outs and placed it on the dead table, ready for feeding, but clear of the rollers. Owing to the size of the dead table he had to steady the cut-out with his left hand on the edge farther from the machine. His assistant was beside him. The pursuer made the adjustment with his right hand. He then proceeded to warn his novice assistant of the danger involved in dealing with a cut-out. The essence of the warning was not to get one's hand caught in the gap. The pursuer gestured with his right hand. Whatever he intended to do—the cut-out being then stationary—he put his hand in the gap. Just at that moment the cut-out from being stationary started to feed itself into the machine. Just what started it into motion nobody really knows. It may have been the vibration of the machine; it may have been that, as the pursuer turned round to give his instructions to his assistant, he nudged the cut-out forward, either with his body or with his left hand. However that may be, the unfortunate and ironical result was that his fingers were caught in the very gap about which he was at that moment issuing his warning.

The pursuer has raised this action against his employers on the ground of their failure to take reasonable care for his safety. They should, he says, have had a big enough dead table to obviate the risk. The defenders say that they are not liable, as this was a risk which Singer they could not reasonably have foreseen, and, consequently, were under no obligation to provide against.

The problem which faces us is easy to state and has been repeatedly stated by Judges of the highest authority. It is conveniently dealt with by Lord Macmillan in Bourhill v. Young [1943] AC 92 (at p. 88):

"The duty to take care is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others, and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed."

In Muir v. Glasgow Corporation the same Judge also points out (at p. 10):

"It is still left to the Judge to decide what in the circumstances of the particular case, the reasonable man would have had in contemplation, and what, accordingly, the party sought to be made liable ought to have foreseen."

It is left as a sort of jury question for Judges. As Lord Wright said in Bourhill v. Young (at p. 93):

"The issue of duty or no duty is, indeed, a question for the Court, but it depends on the view taken of the facts."

Unfortunately, Judges cannot take refuge in the comfortable anonymity of a general verdict; they have to give their reasons.

It is, then, our duty to try to relate the general concept of reasonable foresight, as the criterion of negligence, to the facts of this particular case. What ought the defenders as reasonable employers to have foreseen? One might focus the issue in the present case more precisely by asking what, in using this machine with this gap, ought they to have foreseen as the natural and probable result of so doing. I think it improbable that, however much they had studied the situation, they would readily have foreseen the precise and peculiar circumstances of this particular accident. That the cut-out would start from stationary and move into the machine, and that its movement would synchronise with the pursuer's possibly over-exuberant demonstration, is not something which would occur readily to one. On the other hand, this machine was apparently primarily intended to deal safely with solid tables, and while it was suited for them, nevertheless when cut-outs were being treated there was an obvious potential danger to workmen engaged in its operation, and a danger which could readily and cheaply be eliminated. In these circumstances, the reasonable probability of accident to a workman could not be ruled out. There were various ways in which a workman might get his hand into the cut-out, or at any rate near enough it for the slightest inadvertence to bring it into the gap.

The facts of different cases vary so enormously, and sometimes so fantastically, that it is very difficult to deduce from the cases any very satisfactory exposition of the principles by which Judges are to be guided in this peculiar jury function. Different minds approach it in very different ways, and, as I have said, the Judge, being so to speak an expert, cannot take refuge in the amorphous compromise and composite view emanating from the pooled resources of a group of laymen. There must, first of all, be a limit to the range of vision, the area of potential danger. A stage is reached beyond which for all practical purposes one cannot go. But within this permissible range, how clearly must one see? Must we see shapes cleanly defined, or may we see as in a glass darkly? It is here that the problem in this case arises.

I feel no doubt in the present case that the likelihood of the unnecessary gap creating a potential danger to a workman operating the machine, or engaged in matters incidental to its operation, should be regarded as within the range of vision. The gap was there for all to see, and it called for the giving of a warning to those engaged in the work. It was a danger which was both obvious and unnecessary.

The defenders, in my view, in allowing this machine to be used with a gap, were bound to foresee as reasonably probable that one of their employees might get his hand into this gap while the machine was operating. In these circumstances, can it really be said that because one could not clearly foresee the precise way in which the danger would strike, the duty to provide against it is evaded?

On the facts of this case I cannot think so. An accident of this type was well within the range of reasonable vision, and it would be going too far to say that only accidents whose happening can be precisely envisaged have to be guarded against. In other words the problem before us is not "Could the defenders reasonably have foreseen that, while the pursuer was making his demonstration with a stationary table, the table would begin to move?" but rather "Could the defenders reasonably have foreseen that their use of this machine created a potential danger area for workmen carrying on their legitimate work in relation to the machine?" The situation was normal, and no abnormal or extraneous element intervened. Once the stage was set, all the elements in the drama were present as part and parcel of the job being done. It did not cease to be a drama because the plot was unusual and depended on coincidence for its effect. The plot turned on a combination of known factors, and, while the combination was an unlikely one, the dénouement required no deus ex machina. It may be that, if the workman had met with the accident in doing something which was not part of the legitimate working of the machine, what he did might not be foreseeable as a natural and probable consequence of leaving the gap. But so long as what he did was part of his legitimate activities, the fact that he may himself have been negligent does not affect the existence of the duty laid on the employer, it simply leads to an apportionment of blame. In that connexion, in view of the evidence of the assistant that the pursuer demonstrated by putting his hand into the gap, as indeed must be so, since it was caught, there is ground for holding that his demonstration was unnecessarily realistic. A fair result would be to apportion blame 75 per cent to the employers and 25 per cent to the pursuer.

LORD PATRICK .—Your Lordship has described the scraping machine at which the pursuer was working when he was injured, and the manner in which it was operated when dealing with table tops which had a piece cut out of them. The recurring closing of the gap between the back of the cut-out and the back of the "dead" table was like the recurring closing of the blades of a pair of scissors. In other cases of industrial accidents I have heard such a situation described as a "nip," a convenient term which I shall use. The work was done at speed, the nip closing about once in every six or seven seconds. The danger which arose from such a state of affairs was that an employee, who had to handle the table tops and who thus had to have his hands in close proximity to the nip, might get his fingers caught in the nip. That danger could reasonably have been foreseen by the employers. I think that it should have been obvious to any reasonable person. There were many ways in which the danger might cause or contribute to the causation of an accident. The operator's fingers might be caught when he was placing the table top on the dead table, and pushing it forward towards the rollers, or when he was trying to straighten it, after it had swung to one side, as it travelled into the rollers, or when he tried to arrest its travel when the rollers had not been accurately adjusted, or through a momentary lack of attention on the part of the operator, or if he stumbled, or if his sleeve caught in the nip. If the man feeding the machine had got his fingers caught in the nip, the defenders could hardly have had any answer to his claim that they had been negligent in exposing him to an unnecessary danger which reasonable employers would have foreseen and taken steps to eliminate, steps which were obvious, simple and inexpensive. It was only necessary to lengthen the dead table. A question might have arisen whether the operator had been guilty of negligence contributing to cause the accident, but I do not see how the employers could have escaped a finding that their negligence contributed to cause the accident, since they left an obvious danger in existence, and since, if they had taken reasonable steps to remove it, no accident would have happened.

Now, the pursuer was not feeding a table top into the machine at the time the accident happened, but the employers owed him the same duty as if he had been doing so, the duty of protecting their employee from the unnecessary danger of getting his fingers caught in the nip. He had to place the table top on the dead table. He had to push it forward until its leading edge was in close proximity to the rollers. Otherwise he could not accurately adjust the rollers, as was his duty. In doing this, he might get his fingers into the nip, and through a momentary inadvertence nudge or push the table top forward so that it was caught by the rollers. In some such way he did get the leading edge of the table top caught by the rollers.

I cannot hold that the above duty incumbent on the employers of protecting the pursuer from the obvious danger of getting his fingers caught in the nip was no longer owed to him because he had finished adjusting the rollers and was warning his assistant to avoid the danger, while still holding the table top on the dead table. He was certainly in the course of his employment in giving such a warning to a novice, and it was natural, and in his employers' interest, that he should not interrupt the work by returning the table top to the bin from which it had come, while he gave the warning. He may have been guilty of contributory negligence in keeping the leading edge of the table top close to the rollers while he turned to give the warning to his assistant, but that will not cause his employers' duty to protect him from unnecessary danger to come to an end. The danger was there all the day. It was the fact that he was holding the table top on the dead table in close proximity to the rollers which allowed the danger to strike, but this action might have to be performed by him, as by his assistant, many times during the day's work. Therefore I think that the distinction, so pressed in argument for the employers, between a workman who was about to feed a table top into the machine, and a workman who was demonstrating the danger of operating the machine with these cut-outs in the table tops, has no bearing on the question whether the employers failed in their duty of protecting their workmen from foreseeable and unnecessary danger, and thereby caused or contributed to cause the accident.

It was argued that the employers could not reasonably have foreseen that an accident would happen in the special circumstances of this case, a workman demonstrating the danger, holding the table top on the dead table while doing so, and negligently or inadvertently nudging the table top forward while giving the warning. It may or may not have been so, but, if it was so, I do not think that that disposes of the question whether the employers in this case were guilty of negligence causing or contributing to cause the accident. Clearly, they should have foreseen the danger of an employee getting his fingers caught in this dangerous nip. Clearly, their duty to protect their employees from unnecessary dangers demanded that they should eliminate the dangerous nip, which they could easily have done. The continued existence of the nip was a breach of the duty they owed to the pursuer, and, but for that breach of duty, no accident would have occurred. There is here no question of unavoidable accident, or of the accident having been caused by a third party. In these circumstances, the employers' negligence must have caused or contributed to cause the accident, or it might have been solely caused by the negligence of the pursuer. I do not see how it could be said that the sole cause of the accident was the negligence of the pursuer, since the accident would not have occurred but for the continued existence of the nip, which was a breach of the duty the employers owed to the pursuer.

I do not think that the law demands that employers who should have foreseen the existence of a danger and eliminated it, should also have been able to foresee the precise details of an accident before they can be said to have contributed to cause it. It is sufficient, if the accident is of the type they should have foreseen and guarded against, if at the time of its happening the injured person was a person who should have been guarded against the danger, and if the particular accident is such that it would have been avoided by the precautions which a reasonable employer would have foreseen as necessary and would have taken. All these requirements are present in this case.

I think that the major blame for this accident lies with the defenders, but I also think that the action of the pursuer in putting his fingers into the nip went beyond excusable inadvertence and amounted to contributory negligence. The blame should be apportioned as your Lordship suggests.

LORD MACKINTOSH .—I find myself unable to take the same view as the Lord Ordinary has done on the question of the defenders' liability in this case. The case-unlike that of Bourhill v. Young and Muir v. Glasgow Corporation upon which the defenders' counsel chiefly relied—is one of master and servant, and, accordingly, the defenders as the pursuer's employers were under a continuing duty to take reasonable care to protect the pursuer from danger in the course of his work, and, in particular, so far as the present case is concerned, to take reasonable care to see that the plant which he was required to use or handle was adequate and reasonably safe. It is not necessary in the present case, as it was essential in the two cases above cited, for the pursuer to show that he was in such a relationship to the defenders that the latter owed a duty of care to him—the existence of the relationship of master and servant or employer and employee, which is an admitted fact in this case, suffices for that purpose. The duty of care being thus present, the only question so far as the issue of negligence or culpability is concerned is whether it has been proved that the defenders exposed the pursuer to an unnecessary danger. In my opinion, the evidence which was led in this case was amply sufficient to afford an affirmative answer to that question. The machine in question with its short dead table, fronting the rollers, was dangerous in a number of respects (and not only in one respect as the Lord Ordinary seems to have thought) when used for the processing of table tops containing cut-outs, the danger arising from the fact that, when the table top, which was about forty-two inches long, was placed on the dead table, which extended only some fourteen and a half inches out from the machine, preparatory to its being fed into the rollers, the cut-out which began about five inches in from the edge of the top being presented to the rollers and was itself some seven inches in width and eighteen inches in length, protruded about nine inches over the end of the dead table, thus leaving a hole or gap in which, if a hand or finge were inserted, it would be liable to get caught and crushed between the back end of the cut-out and the edge of the dead table when the table top came forward towards the rollers. There was evidence from four different witnesses, including the pursuer, that it was a natural and likely thing for a workman to do to grasp the table by the cut-out when, for example, it swung slightly on the dead table and had to be straightened, or when it was being lifted from the bogie and placed on the dead table, or in an effort to withdraw a table top from the rollers when the operator at the other, or receiving, side of them, shouted to stop the feeding. Thus, the witness, Gill (at p. 76

D

"A man was liable to put his hand in this hole, because its shape let you get a centre of balance, if you understand. (Q.) What hole? (A.) The cut-out in these big tables."

When it is kept in view that, according to the evidence, about a hundred of these table tops would normally be put through the rollers in about eleven minutes, it will be realised that the movement of the table tops from the bogies on to the dead table, and from there up to and through the rollers, was a rapid process, and there was very little time for a man who had grasped a table top by the cut-out to withdraw his fingers before they were caught and crushed against the edge of the dead table by the forward movement of the table top. This danger, which was a very real one, and one which might well be productive of serious injury to workmen, was a quite unnecessary one, because all that had to be done entirely to obviate the danger was to lengthen the dead table so that no part of the cut-out protruded over the end of it—a remedy which was comparatively simple and inexpensive to effect and one which was in fact adopted, following upon the pursuer's accident. The defenders, however, allowed the dangerous condition of the scraping machine to exist right up to the time of the pursuer's accident, and in doing so were exposing the pursuer and any other workman who had to process table tops with cut-outs upon it to a serious and quite unnecessary risk. They were thereby, in my opinion, not taking reasonable care to protect their said workmen, including the pursuer, from danger or to provide them with reasonably safe plant, and were thus at the time of, and for some considerable time before, the date of the pursuer's accident in breach of their duty as employers towards, inter alios, the pursuer, that is, they were guilty of negligence towards him.

The more difficult question, however, is whether this negligence was the cause, or at any rate a cause, of the pursuer's accident. I think that it was, but, in order to reach the answer to that question, it is necessary to state in some detail just how this accident happened. On the day in question, 30th November 1956, the pursuer, who had long experience in the working of this scraper machine, was the operator in charge of it, having with him as his assistant, the witness Gill, who was then quite new to this job. The usual method of operating the machine was for the operator in charge to work at the ejection or receiving end, so that he could check on the quality of the scraping when the tops came through the rollers, the assistant being left at the feeding end where it was his job to take the tops from the bogies, place them on the dead table and feed them to the rollers. If the operator in charge saw, as sometimes happened, that a table top which had come through the rollers had not been properly scraped, he shouted to his assistant to stop feeding, and went round and adjusted the knife of the machine. On the said day, the pursuer with Gill's assistance had dealt with a load of solid table tops, i.e., tops which had no cutouts, and these had been duly processed without incident. Then, a bogie load of tops with cut-outs came forward for processing, whereupon the pursuer, who was well aware of the dangers above referred to attendant on the handling of such tops, and that Gill had had no previous experience of them, came round to the feeding end of the machine and adjusted it to the thickness required for this new load of tops which were thicker than the solid ones which they had just finished processing. He then himself lifted the first of this new load of tops from the bogie and placed it on the dead table, its forward end being laid close to, but not into, the rollers, and its rear end which protruded for more than half its length over the end of the table being held up by the pursuer's left hand, so as to prevent it from toppling off the dead table. While the top was being held thus, and was lying stationary on the dead table, the pursuer turned to Gill who was at his side (the pursuer says his left side, Gill the right side) and warned him that whatever he did he was never to put his hand into "this cut-out," at the same time pointing to the cut-out with the fingers of his right hand. Gill states that the pursuer when giving him this demonstration "put his hand into the hole." The pursuer says that he did not deliberately do so, but that, when holding his hand over the hole, he "maybe just put it too far,"i.e., by mistake or accidentally. However, whether the pursuer, wittingly or unwittingly, put his hand into the hole, the fact is that the fingers of his right hand did enter the hole, because, while he was giving Gill the above warning and was pointing to the hole as above stated, the table top, the front edge of which had necessarily, owing to the shortness of the dead table, been lying very near to the rollers, suddenly shifted its position forward and was drawn rapidly into the rollers, the fingers of the pursuer's right hand being caught and crushed against the edge of the dead table and the hinder end of the cut-out as the table top sped on its way to the rollers. Whether the aforesaid shift of position was caused by the vibration of the rollers, or by some slight nudge given to the rear end of the table top by the pursuer's body or his left hand, when he turned to address Gill is not known, but when it is kept in view that all this time the pursuer had to keep holding the far end of the table top with his left hand, so as to keep the top in position on the short dead table, it seems not unlikely that in turning to speak to Gill the pursuer's said hand may well have involuntarily given the top the slight impetus forward which was all that was necessary to bring the top up to and within the grip of the rollers.

It was contended for the defenders that any dangers which the proof had disclosed as being attendant on the working of this scraping machine had little to do with the present case, seeing that the pursuer's accident occurred, not when the machine was being operated, but when the pursuer was giving a novice instruction about its use. In my opinion, the pursuer was engaged at the material time in operating the machine, albeit that, before feeding in the first of the tops with a cut-out into the rollers, he paused to explain to Gill what in dealing with such a top he should be careful not to do. In any case, whether the pursuer can property be said to have been operating the machine when he suffered his injury, or whether he was then merely giving his learner assistant a lesson on its use, seems to me of little materiality. The pursuer was as much acting in the course of his employment with the defenders in coming round to the feeding end of the machine and giving Gill, who had no previous experience of tops with cut-outs, instructions about them, as when he was engaged at the ejection end of the machine in receiving processed tops from the rollers; and the defenders' duty not to expose him to unnecessary danger and to give him reasonably safe plant with which to work was equally applicable, whether he was actually operating the machine, or merely instructing his assistant about its use. That duty was owed to him qua employee, and he was as much an employee carrying out his employers' business, when he was giving Gill a visual demonstration of the dangers attendant on dealing with tops with cut-outs on this short dead table, as he was when actually feeding a top to the rollers or receiving it from the rollers at the ejection end. Furthermore, the said duty was a continuing one, and the defenders were in continuous breach of it at all times when the pursuer was required in the course of his employment to process or prepare to process table tops containing cut-outs on this machine with its short dead table. The defenders were thus in breach of their said duty towards the pursuer at the very time when he met with his accident. The remaining question is whether the pursuer's accident, happening as it did in the way which I have above described, can fairly be said to have been a reasonable and probable consequence of that breach. The defenders' said negligence or breach of duty towards the pursuer was certainly a causa sine, qua non of the accident, because if the defenders had done what they ought to have done, and what they did in fact do, following upon the pursuer's accident, namely, lengthened the dead table of the machine so as to form a solid base under the whole of the cut-out, the accident would never have happened. Whether it was also the causa causans of the accident—or at least a causa causansof it, for I do not think that, in this connexion, the pursuer's own carelessness in acting as he did can be left out of account—is a more doubtful matter. The question here is undoubtedly a narrow one, depending as it does upon whether the circumstances of the pursuer's accident were such as ought to have been within the contemplation of the defenders as prudent employers, when they left the pursuer to work with this machine with its dangerously short dead table, knowing, as they did, that it would have to be used by him from time to time for the processing of table tops containing cut-outs. In one of the most recent cases on this topic, Donaghy v. National Coal Board 1957 SLT (Notes) 35 , the test in this matter was propounded by Lord President Clyde thus:

"What are the circumstances which should have been contemplated? If the actual circumstances which occurred fell outside what a reasonable man would or should have contemplated, then liability for the accident cannot be established."

This does not, in my opinion, mean that before there can be liability the precise concatenation of circumstances which led up to the accident must have been able to be envisaged by the defenders, nor do I think that the learned Lord President intended to lay down any such proposition, for, in an earlier part of the same opinion, he says:

"The test must be whether the type of thing that did happen was or should have been within the reasonable contemplation of the defenders or their servants."

In my opinion, the present case, when properly considered, survives that test. Defenders' counsel argued that the very last thing which the defenders would have foreseen, or had in contemplation, was that the pursuer would do the very thing which he was at the time telling his learner assistant not to do. That is no doubt a forcible way of putting it, but on analysis I do not think that the matter is quite so simple or so clear. I think that the defenders must have contemplated that, if the pursuer was given an assistant who had no experience of processing tops with cut-outs, he (the pursuer) would do his best to warn the assistant of the dangers of handling the cut-out on this machine with its short dead table, and that, in so doing, he might well demonstrate his warning by pointing to the cut-out, thereby bringing his hand or finger in dangerously close proximity to it. Furthermore, a top when laid on this short dead table and being supported at its far end, as it had to be, by the operator's left hand was necessarily lying so close to the rollers that I do not think that it should have been outwith the contemplation of the employers that it might, by an involuntary jerk of the operator's left hand or otherwise, get caught in the grip of the rollers and so begin to move along the dead table sooner than was intended. In any event, I think that the defenders ought to have contemplated that, if they left the machine as it was, i.e., with its dangerously short dead table, an accident to one of their workmen by his getting his hand or finger caught between the end of the cut-out and the rear edge of the dead table was sooner or later likely to happen. In the situation as it was left existing by the defenders there was, in my opinion, a conjunction of circumstances which rendered an accident of the nature of a workman's hand getting crushed against the end of the dead table reasonably foreseeable by any prudent employer. That being so, I think that it is immaterial that, at the time when the pursuer sustained just that very injury, he was not himself engaged in actually processing a table top but was instructing a fellow workman in the use of the machine, and further that it is immaterial that it was not proved just how the table top came to move forward to the rollers as and when it did—Carmarthen County Council v. Lewis, especially per Lord Reid at p. 563. I think, therefore, that the defenders cannot escape liability here on the ground of the pursuer's accident being a too remote consequence of their negligence. I feel unable, however, to absolve the pursuer from some degree of contributory negligence. No one knew better than he did that it was dangerous to put his hand in or near the cut-out, and whether he put his hand into it deliberately—which the Lord Ordinary was inclined to think from Gill's evidence was the case, but which he agrees was not proved—or whether he accidentally let his hand drop into the hole, his action in the light of his own knowledge of the functioning of this machine amounted in my opinion to carelessness bordering on recklessness and was more than mere inadvertence. In agreement with your Lordship in the chair I would apportion the blame for this accident 75 per cent on the defenders and 25 per cent on the pursuer, and reduce accordingly the £750 which the Lord Ordinary suggested as being the appropriate amount of damages in this case should that matter arise.

LORD STRACHAN .—The Lord Ordinary decided this case in favour of the defenders, because he took the view that no ordinary careful employer would have foreseen the accident that actually happened, whether the pursuer be regarded as having deliberately put his hand into the cut-out or simply pointed his hand towards it. At the hearing of the reclaiming motion, however, counsel for the defenders did not support the reasoning by which the Lord Ordinary arrived at his decision. They maintained that, the real issue in the case is whether the defenders ought to have anticipated that a demonstrator at the machine in question might suffer injury through doing the one thing which he was demonstrating should not be done. They criticised the Lord Ordinary, in so far as he had regarded the pursuer as an operator, and were at pains to argue that the pursuer was a demonstrator. In my opinion, that so-called distinction between operator and demonstrator was greatly over emphasised in the defenders' argument. On the evidence in the case I regard the pursuer as having been an operator, but I differ from the Lord Ordinary on the question of the foreseeability of the risk. As the Lord Ordinary himself expressly recognised, that is a question of some difficulty and is one upon which different opinions may be held by different Judges. On the facts of this case, I take a different view from that of the Lord Ordinary on that question.

The pursuer clearly was the operator of the machine. On the day of the accident, he was being assisted by the witness Gill, who had worked at that type of machine only once before. The pursuer usually took up his position at the receiving end of the machine when it was working, so that he could inspect the table tops after they had passed through the scrapers. The assistant normally attended to the job of feeding the table tops into the machine at the other end. It was, however, the duty of the pursuer as operator of the machine to adjust the rollers to the required height to suit the particular type of table top that was being fed to the machine, and when, in the course of operation a different type of table top arrived he had to go to the feeding end in order to be in a position to readjust the rollers. In that process of adjustment, he had to hold the leading edge of the table top in close proximity to the rollers. He did so by resting that end of the table top on the dead table, and holding the other end with his left hand, while he operated the adjusting mechanism with his right hand at the side of the machine. That is precisely what he was doing immediately before the accident. But a further duty lay upon the pursuer by reason of the fact that his assistant was a novice and the new lot of table tops had cut-outs in them. He had to warn his assistant of the danger arising from the cut-out passing over the edge of the dead table at speed. As, apparently, no one else issued that warning, I think it clearly was the duty of the pursuer to do so. I am further of opinion that it was perfectly natural for the pursuer to take the opportunity of pointing out the danger to his assistant when the first table top with a cut-out arrived, and when he was holding that table top with the cut-out in proximity to the edge of the dead table. In the view which I take of the case, the pursuer was up to that point engaged in the normal course of his duties as operator of the machine.

When the pursuer was thus engaged, the accident suddenly happened, as he turned round to give the warning to Gill who was standing behind him and to his right. The table top was suddenly drawn into the rollers, either through vibration or some involuntary push from the pursuer, and at that time the pursuer's fingers must have been in the cut-out wittingly or unwittingly.

The defenders, as employers, owed to the pursuer a duty to take reasonable care for his safety, and, in particular, a duty to take reasonable care to provide and maintain safe plant with which he might carry out his work. No question arises in this case as to whether the defenders had a duty to the pursuer. There can be no doubt that they had the duty which the law imposes upon every master towards his servant. The first real question in the case is whether the defenders were in breach of that duty. They clearly failed to maintain the machine in a safe condition having regard to the cut-out table tops which were fed into it. I regard the action produced by the cut-out being drawn over the edge of the dead table as being highly dangerous, and it is unnecessary for me on that topic to add anything to what your Lordships have already said. But the fact that the machine, in certain circumstances, was dangerous does not by itself necessarily mean that the defenders were in breach of their duty. They could be in breach of duty only if they failed to exercise reasonable care for the safety of the pursuer, and in order to decide whether they did, or did not, exercise reasonable care, it is necessary to consider what was reasonable care in the circumstances. In my opinion, the crucial question is what standard or degree of care was required of the defenders? It is that question which has to be answered by applying Singer the test of foreseeability.

As was pointed out by Lord Russell of Killowen in Bourhill v. Young, at p. 85, the test of foreseeability may play a double role, It is relevant to questions of compensation and also to questions of culpability. It arises in the former category in regard to remoteness of damage, where both the existence of a duty and breach of that duty are admitted.

In regard to culpability, Lord Russell of Killowen referred only to the relevance of foreseeability as a test of the existence of a duty, but the later case of Muir v. Glasgow Corporation shows that it is also a test of the standard or degree of care to be required of a defender. In at least a majority of the opinions delivered in the House of Lords, it was made clear that the defenders in that case had a duty towards the injured children. Lord Thankerton and Lord Macmillan applied the foreseeability test in order to ascertain the standard of care required of the defenders. Such a case, I think, must fall into the culpability category for the question is whether there was negligence. It does not seem to me to come within the compensation category. Whatever the category may be, I am of opinion that the present case is similar to Muir, in respect that there clearly was a duty owed by the defenders to the pursuer, and the question whether the defenders were in breach of that duty depends upon the standard of care that is to be required of them. In my opinion, therefore, there should be applied to this case a similar test to that indicated in Muir. Lord Macmillan there said:

"Legal liability is limited to those consequences of our acts which a reasonable man of ordinary intelligence and experience so acting would have in contemplation. ‘The duty to take care … is the duty to avoid doing or omitting to do anything the doing or omitting to do which may have as its reasonable and probable consequence injury to others and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.’"

In my opinion, the present case should be decided according to that test, and the question as to what a reasonable man would have foreseen is a jury question to be decided upon the particular facts of the case.

During the hearing of the reclaiming motion, much argument was devoted to the question whether it is necessary to be satisfied that the reasonable man would have foreseen the risk of the actual accident which happened, or whether it is enough if he would have foreseen some accident of that type. Counsel for the defenders argued that, in the "culpability" category, there can be no negligence unless a reasonable man would have foreseen the actual accident. Several, English cases were cited, but I am not satisfied that those cases establish such a clearly defined test for any particular category of cases. I am content to apply the more general test formulated in Muir.

Upon that basis, I am of opinion that the defenders did fail to exercise reasonable care for the safety of the operator of the machine, and that they were therefore in breach of their duty towards the pursuer. I think that a reasonable employer would certainly have foreseen that the operator in the course of his duties would require to come to the feeding end of the machine to adjust the rollers on the arrival of a different type of table top, and that he would have to hold a table top in proximity to the rollers in the manner which I have already described. He would also have foreseen the danger occasioned by the cut-out table tops, and the necessity for the operator to warn the assistant of that danger. I think he would also have foreseen the risk of the table top being drawn in to the machine when it was being held in proximity to the rollers, either from vibration or from so me involuntary movement of the operator, and, finally, he would appreciate that, in such circumstances, there was a risk of the operator being injured, particularly if his hand happened to be in the vicinity of the cut-out at the time when the table was drawn in. In my opinion, this machine when used for cut-out table tops was so obviously dangerous that a reasonable employer would have foreseen all those things. In other words, he would have anticipated that a failure to make the machine safe for cut-out tables might cause, as a reasonable and probable consequence, injury to the operator when readjusting rollers for a cut-out table.

It is obvious, I think, that the pursuer must have put his hand in the cut-out, either wittingly or unwittingly. While that fact does have an important bearing on the question of contributory negligence it does not, in my view, lessen the degree of care required of the defenders. On the evidence as a whole, I am of opinion that the defenders were negligent and that their negligence was the cause of the accident to some extent at least.

I am, however, also of opinion that the accident was caused partly by the pursuer's own negligence. He was fully aware of the danger and he plainly failed to exercise reasonable care for his own safety. Having regard to the fact that he was in the very act of telling Gill that a hand should never be put in the cut-out, he was in fault for not keeping his own hand out of the danger zone. I agree that the blame should be apportioned as suggested by your Lordship.