Die Jovis,
1° Martii 1956
Parliamentary
Archives,
HL/PO/JU/4/3/1036
Viscount
Simonds
Lord Reid
Lord
Tucker
Lord
Keith
of
Avonholm
Lord
Somervell
of
Harrow
HOUSE OF LORDS
BONNINGTON
CASTINGS LIMITED
v.
WARDLAW
Viscount
Simonds
1st
March, 1956
my
lords,
I have
had the advantage of reading the Opinion which my noble and
learned
friend, Lord Reid, is about to deliver and I agree with it in
all
respects. I shall therefore do no more than move that
this appeal be
dismissed with costs.
Lord Reid
My lords,
The
Respondent was employed by the Appellants for eight years in
the
dressing shop of their foundry in Leith, and while employed
there he con-
tracted the disease of pneumoconiosis by inhaling
air which contained minute
particles of silica. He ceased work on
12th May, 1950. The Lord Ordinary
(Lord Wheatley) held the
Appellants liable for this and awarded £2,000
damages. The
First Division by a majority (Lord Carmont and Lord Russell,
the
Lord President dissenting) adhered to the Interlocutor of the
Lord
Ordinary.
The
Appellants produce steel castings. These are made by pouring
molten
metal into moulds which consist of sand with a very high
silica content.
When the casting has cooled it is freed from sand
so far as possible and then
annealed. The annealed casting has a
certain amount of the sand adhering
to it or burnt into it and
the surface of the casting is somewhat irregular. It
is then
necessary to remove these irregularities and smooth the surface
of
the casting, and in the course of doing this any adhering sand
is also
removed. This is done in the dressing shop by three types
of machine. In
two of these machines, floor grinders and swing
grinders, the means employed
are grinding wheels made of
carborundum, and in the third a hammer or
chisel is driven by
compressed air so that it delivers some 1,800 blows per
minute.
There are several of each type of machine in the dressing shop
and
all of them produce dust, part of which is silica from the sand
which
they remove. The particles of this sand are originally
sufficiently large not
to be dangerous, because it is only
exceedingly small particles of silica which
can produce the
disease—particles which are quite invisible except through
a
powerful microscope. But either in the annealing process or by the
working
of these machines or at both stages (the evidence on this
is inconclusive) a
number of the original particles are broken up
and the dust produced by all
of these machines contains a certain
proportion of the dangerous minute
particles of silica.
Most of
the dust from the grinders can be sucked into ducts or pipes,
but
during the time when the Respondent contracted his disease
there was no
known means of preventing the dust from the
pneumatic hammers from
escaping into the air, and it is now
admitted that no form of mask or
respirator had then been
invented which was effective to protect those exposed
to the
dust.
Throughout
his eight years in the Appellants' service the Respondent
operated
one of these pneumatic hammers and he admits that he cannot
complain
in so far as his disease was caused by the dust from his own or
any
of the other pneumatic hammers. As there was no known means
of
collecting or neutralizing this dust, and as it is not alleged
that these machines
ought not to have been used there was no
breach of duty on the part of the
Appellants in allowing this
dust to escape into the air. The Respondent makes
2
no
complaint with regard to the floor grinders because the
dust-extracting
plant for them was apparently effective so far as
that was possible, and it
seems that any noxious dust which
escaped from these grinders was of
negligible amount. But the
Respondent alleged, and it is admitted, that a
considerable
quantity of dust escaped into the air of the workshop from the
swing
grinders, because the dust-extraction plant for these grinders was
not
kept free from obstruction as it should have been. It
frequently became
choked and ineffective.
Regulation
1 of the Grinding of Metals (Miscellaneous Industries) Regula-
tions,
1925, provides " No racing dry grinding or glazing ordinarily
causing
" the evolution of dust into the air of the room in
such a manner as to be
" inhaled by any person employed shall
be performed without the use of
" adequate appliances for the
interception of the dust as near as possible to
" the point
of origin thereof and for its removal and disposal so that it shall
"
not enter any occupied room. . . ."
It is
admitted for the Appellants that they were in breach of this
Regula-
tion in that for considerable periods dust from the swing
grinders escaped
into the shop where the Respondent was working
owing to the appliances
for its interception and removal being
choked and therefore inadequate.
The question is whether this
breach of the Regulation caused the
Respondent's disease. If his
disease resulted from his having inhaled part
of the noxious dust
from the swing grinders which should have been inter-
cepted and
removed then the Appellants are liable to him in damages:
but if
it did not result from that then they are not liable.
The Lord
Ordinary and the majority of the First Division have dealt with
this
case on the footing that there was an onus on the defenders,
the
Appellants, to prove that the dust from the swing grinders did
not cause the
pursuer's disease. This view was based on a
passage in the judgment of
the Court of Appeal in Vyner v.
Waldenberg Brothers Limited [1946]
K.B. 50: " If
there is a definite breach of a safety provision imposed on the
"
occupier of a factory, and a workman is injured in a way which
could
" result from the breach, the onus of proof shifts on
to the employer to show
" that the breach was not the cause.
We think that that principle lies at the
" very basis of
statutory rules of absolute duty " (per Scott, L.J., at p.
55).
Vyner was working a circular saw when part of his thumb was
cut off. The
saw failed in several respects to comply with the
Woodworking Machinery
Regulations, and in particular the guard was
not properly adjusted. The
accident happened before the passing
of the Law Reform (Contributory
Negligence) Act, 1945, and the
main defence was contributory negligence.
The arguments of Counsel
are not reported, but it does not appear to have
been suggested
that the accident might have happened even if the guard had
been
properly adjusted. There was, however, a question whether the
duty
to see that the Regulations were complied with had been
delegated to Vyner.
Of course, the onus was on the Defendants to
prove delegation (if that was
an answer) and to prove contributory
negligence, and it may be that that
is what the Court of Appeal
had in mind. But the passage which I have cited
appears to go
beyond that and, in so far as it does so, I am of opinion that
it
is erroneous.
It would
seem obvious in principle that a pursuer or plaintiff must prove
not
only negligence or breach of duty but also that such fault caused
or
materially contributed to his injury, and there is ample
authority for that
proposition both in Scotland and in England. I
can find neither reason
nor authority for the rule being different
where there is breach of a statutory
duty. The fact that
Parliament imposes a duty for the protection of employees
has been
held to entitle an employee to sue if he is injured as a result of
a
breach of that duty, but it would be going a great deal farther
to hold that
it can be inferred from the enactment of a duty that
Parliament intended
that any employee suffering injury can sue his
employer merely because there
was a breach of duty and it is shown
to be possible that his injury may
have been caused by it. In my
judgment, the employee must in all cases
prove his case by the
ordinary standard of proof in civil actions: he must
make it
appear at least that on a balance of probabilities the breach of
duty
caused or materially contributed to his injury.
3
The only
authority cited by the Court of Appeal in Vyner's case for
their
statement of the law is a passage from the judgment of Lord
Goddard in the
Court of Appeal in Lee v. Nursery
Furnishings, Ltd. [1945] 1 All E.R. 387.
"
In the first place I think one may say this, that where you find
there has
" been a breach of one of these safety regulations
and where you find that
" the accident complained of is the
very class of accident that the regulations
" are designed to
prevent, a court should certainly not be astute to find that
"
the breach of the regulation was not connected with the accident, was
not
" the cause of the accident". I agree: a Court
should not be astute to find
against either party, but should
apply the ordinary standards. I cannot see
in what Lord Goddard
said any suggestion that the ordinary onus of proof
is to be
shifted. I would only add that in at least two subsequent cases
(Mist
v. Toleman & Sons [1946] 1 All E.R. 139, and Watts
v. Enfield
Rolling Mills (Aluminium) Ltd. [1952] 1 All
E.R. 1013) the Court of Appeal,
being powerless to overrule a
previous decision of that Court, were driven
to find distinctions
which do not appear to me to be satisfactory and which
I doubt
whether they would have adopted if they had been convinced of
the
validity of the general rule.
The
medical evidence was that pneumoconiosis is caused by a
gradual
accumulation in the lungs of minute particles of silica
inhaled over a period
of years. That means, I think, that the
disease is caused by the whole of the
noxious material inhaled
and, if that material comes from two sources, it
cannot be wholly
attributed to material from one source or the other. I am
in
agreement with much of the Lord President's opinion in this case, but
I
cannot agree that the question is which was the most probable
source of the
Respondent's disease, the dust from the pneumatic
hammers or the dust from
the swing grinders. It appears to me that
the source of his disease was the
dust from both sources, and the
real question is whether the dust from the
swing grinders
materially contributed to the disease. What is a
material
contribution must be a question of degree. A contribution
which comes
within the exception de minimis non curat lex is
not material, but I think
that any contribution which does not
fall within that exception must be
material. I do not see how
there can be something too large to come within
the de minimis
principle but yet too small to be material.
As the
Lord Ordinary did not deal with the case from this point of view,
I
must deal with the evidence afresh in light of such of his findings
of fact
as are relevant in this connection. He said: " Prima
facie it would appear
" that the main source of injurious
silica dust which the pursuer inhaled came
" from the
dressing processes in which he was engaged at the dressers' bench
"
over the years ". With that I agree. Then he said: " but to
succeed in this
" argument the defenders have to establish
that on the balance of probabilities
" it was the only
source." I have already stated my reasons for not
agreeing
with that. Then he considered certain evidence and said:
" In the face of that
" evidence I cannot hold that the
silica dust from the dressing process was
" the sole source
of infection, having regard to the proximity of the pursuer's
''
place of work to the swing grinders, unless it is established that
the system
" of ventilation in the shop was sufficient to
carry away the noxious particles
" of silica dust and prevent
them from being inhaled by the pursuer." He
held that the
ventilation was defective and insufficient to do this. I do not
think
that the ventilation was insufficient to comply with the Regulations
but
I agree that it did not carry away dust so quickly as to
prevent it from floating
in the general atmosphere of the shop for
some time; probably no system of
ventilation would have prevented
that.
I think
that the position can be shortly stated in this way. It may be
that,
of the noxious dust in the general atmosphere of the shop,
more came from
the pneumatic hammers than from the swing grinders,
but I think it is
sufficiently proved that the dust from the
grinders made a substantial contri-
bution. The Respondent,
however, did not only inhale the general atmos-
phere of the shop:
when he was working his hammer his face was directly
over it and
it must often have happened that dust from his hammer sub-
stantially
increased the concentration of noxious dust in the air which
he
inhaled. It is therefore probable that much the greater
proportion of the
4
noxious
dust which he inhaled over the whole period came from the hammers
But
on the other hand some certainly came from the swing grinders, and
I
cannot avoid the conclusion that the proportion which came from
the swing
grinders was not negligible. He was inhaling the
general atmosphere all the
time, and there is no evidence to show
that his hammer gave off noxious dust
so frequently or that the
concentration of noxious dust above it when it
was producing dust
was so much greater than the concentration in the general
atmosphere,
that that special concentration of dust could be said to
be
substantially the sole cause of his disease.
The Lord
President was of opinion that there was " no evidence of any
"
material contribution of noxious dust from the swing grinders",
and I
must examine his reason for taking that view. He said: "
But when the
" evidence of noxious dust from the swing
grinders is analysed it is not
" impressive. Much of the
evidence in regard to these machines is related to
" dust
generally, and this body of evidence has misled the Lord Ordinary
"
into phrases such as ' a fairly constant stream of silica dust in
the
" ' atmosphere over a very extended period '. There is no
such evidence in
" regard to silica dust. The evidence of
fellow-workmen of the pursuer
" relates to visible dust and
is not helpful on the vital issue ". In this I think
that he
was mistaken.
It is, of
course, true that the only direct evidence related to harmless
dust
because it alone was visible. But if the larger visible
particles hung in the
atmosphere for some time, then smaller,
lighter and invisible particles emitted
by the swing grinders must
have hung there even longer. No doubt the
amount of noxious dust
was very much less than the amount of visible dust.
But there is
nothing to indicate that the castings dressed with the swing
grinders
had substantially less sand adhering to them than had the
castings
dressed with the pneumatic hammers or that substantially
less noxious dust
was produced by the grinders than by the
hammers. No doubt the total
amount from both sources in the
atmosphere was small at any one time but
the combined effect over
a period of eight years was to cause the Respondent's
disease. The
importance of the evidence of the fellow-workmen is that it
shows
that the visible dust and therefore also the invisible dust from
the
swing grinders was not immediately dispersed, and therefore
that the
Respondent was bound to inhale some of the invisible
noxious dust from
the swing grinders. On this matter Lord Carmont
said: " Even if the majority
" of the pursuer's
inhalations took place near the source where the silica
"
dust was produced, i.e. at his hammer, a minority of inhalations from
the
" general atmosphere of the shop needlessly contaminated
owing to the break-
" down of the extracting hood, duct and
fan at the swing grinders may well
" have contributed a quota
of silica dust to the pursuer's lungs and so helped
" to
produce the disease ". On his view of the onus of proof Lord
Carmont
did not require to go farther than that. In my opinion, it
is proved not only
that the swing grinders may well have
contributed but that they did in fact
contribute a quota of silica
dust which was not negligible to the pursuer's
lungs and therefore
did help to produce the disease. That is sufficient to
establish
liability against the Appellants, and I am therefore of opinion
that
this appeal should be dismissed.
Lord
Tucker
MY LORDS,
It is, I
think, clear from the Opinion of the Lord Ordinary that he
accepted
in substance the evidence of the pursuer's witnesses with regard
to
the extent of the defective condition of the dust extraction
appliances
in the swing grinders and that this defective condition
had existed over a
substantial period of time, if not throughout
the whole length of the pursuer's
employment. On this basis it
follows that the quantity of silica dust dis-
charged into the
atmosphere of the shop from this source cannot be dis-
regarded as
negligible on the de minimis principle.
5
In my
opinion, the inference to be drawn from these facts is that
the
silica dust discharged from the swing grinders contributed to
the harmful
condition of the atmosphere, which admittedly resulted
in the pursuer con-
tracting pneumoconiosis, and was therefore a
contributory cause of the
disease.
This was
the decision reached by the majority of the Judges in the
First
Division, but in so doing both Lord Carmont and Lord Russell
were to
some extent influenced by certain decisions of the Court
of Appeal in England
with regard to the existence of an onus on
defenders in cases of alleged
breach of statutory duty. The cases
actually referred to were Mist v. Toleman
& Sons
[1946] 1 A.E.R. 139, and Watts v. Enfield Rolling Mills
(Aluminium)
lul. [I952] I A.E.R. 1013, but the origin of this
supposed onus is to be
found in the judgment of the Court of
Appeal delivered by Lord Justice Scott
in Vyner v.
Waldenberg Brothers, Ltd. [1946] K.B. 50 where he said:-
" If
there is a definite breach of a safety provision imposed on the
"
occupier of a factory, and a workman is injured in a way which
"
could result from the breach, the onus of proof shifts on to the
employer
" to show that the breach was not the cause. We
think that that prin-
" ciple lies at the very basis of
statutory rules of absolute duty."
The
judgment then went on to cite a passage from the judgment of
Lord
Goddard in Lee v. Nursery Furnishings Ltd. [1945]
1 A.E.R. 387, in the
course of which he used these words: —
" In
the first place I think one may say this, that where you find there
"
has been a breach of one of these safety regulations and where you
"
find that the accident complained of is the very class of accident
"
that the regulations are designed to prevent, a court should
certainly
" not be astute to find that the breach of the
regulation was not connected
" with the accident, was not the
cause of the accident."
In the
subsequent cases of Mist and Watts attempts were made to
explain
and to some extent to modify the actual language of Lord
Justice Scott
in Vyner's case, but the existence of some
onus was recognised.
My Lords,
I think it is desirable that your Lordships should take
this
opportunity to state in plain terms that no such onus exists
unless the
statute or statutory regulation expressly or impliedly
so provides, as in
several instances it does. No distinction can
be drawn between actions for
common law negligence and actions for
breach of statutory duty in this
respect. In both the plaintiff or
pursuer must prove (a) breach of duty
and (b) that
such breach caused the injury complained of. (See June Wakelin
v.
The London and South Western Railway Company (1886) 12 A.C.
41,
and Caswell v. Powell Duffryn Associated Collieries
Ltd. (1940] A.C. 152).
In each case it will depend upon the
particular facts proved and the proper
inferences to be drawn
therefrom whether the pursuer has sufficiently dis-
charged the
onus that lies upon him. In the present case I think he has,
and
on this ground, and without expressing any view on the subject of
the
alleged defective ventilation, I would dismiss the appeal.
Lord Keith
of Avonholm
my lords.
This
appeal falls, in my opinion, to be decided upon a few material
facts
established by the evidence in the case. The onus is on the
pursuer to prove
his case, and I see no reason to depart from this
elementary principle by
invoking certain rules of onus said to be
based on a correspondence between
the injury suffered and the evil
guarded against by some statutory regulation.
I think most, if not
all. of the cases which professed to lay down or to recog-
nise
some such rule could have been decided as they were on simple
rules
of evidence, and I agree that the case of Vyner in so
far as it professed to
enunciate a principle of law inverting the
onus of proof cannot be supported.
The correct principles
governing the matter were laid down by this House in
Caswell
v. Powell Duffryn Associated Collieries Ltd. [1940] A.C. 152.
and by
the Master of the Rolls in Stimpson v. Standard
Telephones and Cables Ltd.
[1940] 1 K.B. 342.
6
I refer to
the facts as set out by my noble and learned friend, Lord Reid
What
to my mind determines this case is, (I) that the pursuer is suffering
from
pneumoconiosis, which is a disease caused by the inhalation
of minute particles
of silica into the lungs; (2) that it
is admitted that the disease was contracted
by the pursuer in the
course of his employment with the defenders; (3) that
he was
employed by the defenders as a steel dresser in the defenders'
dressing
shop for a period of over eight years before the disease
manifested itself;
that in the dressing shop the pursuer was
exposed throughout this period
to the action on his lungs of
silica dust which pervaded the dressing shop;
that part of this
silica dust was released into the atmosphere of the dress-
ing
shop from the operations conducted at the swing grinders; (6) that
a
substantial part, if not much the greater part, of the silica
dust from the swing
grinders was released as the result of
repeated negligence of the defenders in
failing to keep clear of
obstruction the flues or ducts designed to carry away
the noxious
dust from the swing grinders ; (7) that this negligence recurred
at
very short intervals throughout the whole of the time during
which the
pursuer was employed by the defenders; (8) that silica
dust, when inhaled, is
gradual and insidious in its effects and
requires to operate on the lungs for a
considerable period of time
before producing pneumoconiosis.
On these
facts I think the pursuer has proved enough to associate his
ill-
ness with the fault of the defenders, or at least to
establish a prima facie pre-
sumption to that effect. The
case for the defenders depends on the fact that
the pursuer, as a
steel dresser, engaged over the whole period of eight years
in
operating a pneumatic hammer on steel castings, was exposed much
more
immediately and in a much greater measure to silica dust
released from these
castings. I am prepared to agree, as did all
the judges in the Court below,
that the main source of silica dust
inhaled by the pursuer came from this
operation, a cause for which
it is agreed the defenders were in no way to
blame. It was
accordingly maintained for the defenders that the pursuer
must
show that the dust released by their negligence from the swing
grinders
had contributed materially to the dangerous dust inhaled
by the pursuer.
As there was no evidence to show the proportions
of the dust emanating from
the various sources in the dressing
shop inhaled by the pursuer his case, it was
said, must fail. The
pursuer has, however, in my opinion, proved enough
to support the
inference that the fault of the defenders has materially
contri-
buted to his illness. During the whole period of his
employment he has
been exposed to a polluted atmosphere for which
the defenders are in part
to blame. The disease is a disease of
gradual incidence. Small though
the contribution of pollution may
be for which the defenders are to blame,
it was continuous over a
long period. In cumulo it must have been sub-
stantial,
though it might remain small in proportion. It was the
atmosphere
inhaled by the pursuer that caused his illness and it
is impossible, in my
opinion, to resolve the components of that
atmosphere into particles caused
by the fault of the defenders and
particles not caused by the fault of the
defenders, as if they
were separate and independent factors in his illness.
Prima
facie the particles inhaled are acting cumulatively, and I think
the
natural inference is that had it not been for the cumulative
effect the pursuer
would not have developed pneumoconiosis when he
did and might not have
developed it at all. The inference, of
course, would have been different if it
could be shown that the
pursuer could not have inhaled any particles given
off from the
swing grinding operations, or that the particles negligently
released
from the swing grinding operations were released at intervals
so
infrequent, or in quantities so insignificant even if taken
cumulatively, as to
make it unreasonable to regard them as a
material contributing cause of the
pursuer's disease. But that, in
my opinion, the defenders are unable to show.
On the whole
evidence I consider that the pursuer has discharged the onus
that
is upon him of showing that the defenders' fault was a material
contri-
buting cause of his illness. I would accordingly dismiss
the appeal.
Lord
Somervell of Harrow
my
lords,
I agree.
(31907)
Wt. 8100—102 35 3/J6 DL/PA/19
