United Kingdom House of Lords Decisions

Parliamentary Archives,
HL/PO/JU/4/3/1100

Die Mercurii, 21° Februarii 1962

After hearing Counsel, as well on Monday the 15th,
as on Tuesday the 16th, days of January last, upon the
Petition and Appeal of Mrs. Janet Wood Cummings or
McWilliams, residing at 11 Rayne Place, Drumchapel,
Glasgow, W.5, widow of the deceased William Francis
McWilliams, steel erector, as an individual and as
tutrix and administratrix in law of the pupil children
aftermentioned: William Duncan McWilliams, Janette
Cummings McWilliams, Marion McWilliams and
Kenneth McWilliams, all residing with her at 11 Rayne
Place, aforesaid, praying, That the matter of the Inter-
locutors set forth in the Schedule thereto, namely, an
Interlocutor of the Lord Ordinary in Scotland (Lord
Guest), of the 15th of January 1960 and also an Inter-
locutor of the Lords of Session there of the First Division,
of the 17th of February 1961, might be reviewed before
Her Majesty the Queen, in Her Court of Parliament,
and that the said Interlocutors might be reversed, varied
or altered, or that the Petitioner might have such other
relief in the premises as to Her Majesty the Queen, in
Her Court of Parliament, might seem meet; as also
upon the Case of Sir William Arrol & Company Limited ;
and also upon the Case of Lithgows Limited, lodged in
answer to the said Appeal; and Counsel appearing for
the Respondents, but not being called upon; and due
consideration being had this day of what was offered
for the said Appellant:

It is Ordered and Adjudged, by the Lords Spiritual
and Temporal, in the Court of Parliament of Her Majesty
the Queen assembled, That the said Interlocutors, of the
15th day of January 1960 and of the 17th day of February
1961, complained of in the said Appeal, be, and the same
are hereby, Affirmed, and that the said Petition and
Appeal be, and the same is hereby, dismissed this House:
And it is further Ordered, That the Appellant do pay,
or cause' to be paid, to the said Respondents the Costs
incurred by them in respect of the said Appeal, provided
that such last-mentioned Order shall not be enforced
without a further Order of this House.

McWilliams (Widow, as an individual and as tutrix and admini- stratrix in law of the pupil children William Duncan McWilliams and others) (A.P.) v. Sir William Arrol & Company Limited and others.







HOUSE OF LORDS

McWILLIAMS (Widow, as an individual and as tutrix and administrate
in law of the pupil children William Duncan McWilliams and others)
(A.P.)

v.

SIR WILLIAM ARROL & COMPANY LIMITED and others

21st February, 1962

The Lord Chancellor

Lord Chancellor
Viscount Simonds
Lord Reid
Lord Morris of Borth-y-Gest
Lord Devlin




My Lords,

This is an appeal against an interlocutor of the First Division of the Court
of Session in Scotland dated 17th February, 1961, adhering to the interlocutor
of the Lord Ordinary dated 15th January, 1960, in an action for damages
raised by the Appellant as pursuer against the Respondents as defenders
in which the Lord Ordinary assoilzied the Respondents from the conclusion
of the action. In that action the Appellant sought to recover damages
from the Respondents jointly and severally or severally in respect of the
death of her husband, the deceased William Francis McWilliams, in an
accident on 27th May, 1956.

On 27th May, 1956, the deceased was employed by the first Respondents
as a steel erector in connection with the steel lattice work tower of a tower
crane which they were constructing for the use of the second-named Respon-
dents in their Kingston shipbuilding yard, Port Glasgow. The deceased
was an experienced steel erector. The tower had already been erected to
its full height of about 120 feet, but stagings required to be erected at various
points up and down the structure to provide platforms from which riveters
could rivet the steel work. The method of erecting such stagings involved
the fastenings of battens of wood known as " needles ", horizontally, to the
sides of the structure, the inner ends thereof being approximately in line
with the centre of the tower and the outer ends protruding out for some
feet beyond the corner of the steel structure. Planks were then required to
be laid across the protruding parts of the needles to form a platform
outside the structure from which the riveters could work. For purposes of
security it was the practice to support the extreme protruding end of the
needle by means of a lashing known as an " outrigger " looped thereon and
fixed to a point on the steel work above the level of the needle. Prior to
the accident the deceased had been working in connection with the erection
of one such staging at a point on the structure at about 70 feet above the
ground. While it was not established exactly what the deceased was doing
at the time of the accident, it is not disputed that he fell from about the
point where the staging was being erected to the ground, sustaining fatal
injuries, that immediately after the accident one of the needles of the staging
was observed to be markedly canted downwards towards the outer end, and
that there was found on the ground, close to the deceased's body, a wooden
plank, which had probably prior to the accident been resting on the pro-
truding ends of the needles and also an outrigger lashing. Safety belts, the
wearing of which would have prevented the death of the deceased, had been
available until two or three days before the accident but were then removed
to another site.

The Appellant's case against the first Respondents was that the work upon
which the deceased was engaged was dangerous in that he had to put his
weight on battens before they were properly secured in order to secure
them and had to use both hands in the work of securing; that it was the
duty of the first Respondents as his employers to provide and maintain
a safe system of work and sufficient plant to enable the deceased safely
to perform his task ; that for work of this nature it was their duty to provide
the deceased with a safety belt and to instruct him to wear it; that such
provisions and instructions accorded with normal and proper practice for
work on such steel structures and that it was particularly necessary for the
work and position which I have described.




2

The Appellant in her pleadings also made a case concerned with the
provision of safety nets but this was abandoned in the course of the proof
and I need not mention safety nets again.

With regard to the second Respondents it was averred that by their
failure to provide the deceased with a safety belt they were in breach of
section 26 (2) of the Factories Act, 1937, namely,

" Where any person is to work at a place from which he will be liable
" to fall a distance more than ten feet, then, unless the place is one
" which affords secure foothold and, where necessary, secure hand-hold,
" means shall be provided, so far as is reasonably practicable, by fencing
" or otherwise for ensuring his safety."

The Appellant averred that in the circumstances of the accident the
deceased was working at a place from which he was liable to fall more than
ten feet and which did not afford secure foothold ; that the second Respon-
dents were bound to supply him with a safety belt, that it was reasonably
practicable for them so to do, and that if one had been provided the
accident would not have happened.

The Lord Ordinary (Lord Guest) and the learned Judges of the First
Division held that the first Respondents were in breach of duty at common
law in failing, contrary to the proved practice of making them available, to
provide a safety belt for the deceased and that the second Respondents were
in breach of their statutory duty in the same respect. The Lord Ordinary
and the Lord President (with whom Lord Carmont agreed) went on to hold
that the Appellant had failed to prove that the provision of a safety belt
by the Respondents would have prevented the accident, while Lord Guthrie,
taking a different view of the onus of proof, held that the Respondents had
proved that it would not. The basis of these views was that if safety belts
had been provided, the deceased would not have been wearing one on the
occasion of the accident.

Lord Guest held that the question of instructions to use of safety belt was
academic. The Lord President took the view that exhortation would have
been useless and that if instructions had been given the deceased would
have ignored them.

On the first point the Appellant's case before this House was fourfold.
It was submitted that to hold that the Appellant had failed to prove that
the provision of a safety belt would have prevented the accident (and still
more that the Respondents had proved that it would not) was wrong on
grounds of authority, the type of evidence required as compared with that
called, the effect of the evidence before the Lord Ordinary and a theory of
causation.

The first case to which reference was made was Roberts v. Dorman Long
& Co. Ltd. [1953] 1 W.L.R. 942. That was a case under Regulation 97 of
the Building (Safety, Health and Welfare) Regulations, 1948, of which the
material words are—

"... and except for persons for whom there is adequate handhold
" and foothold . . . there shall be available safety belts . . . which
" will so far as practicable enable such persons who elect to use them
" to carry out the work without risk of serious injury."


At page 946 Lord Goddard, C.J. is reported as saying: " I think that if
" a person is under a duty to provide safety belts or other appliances and
" fails to do so, he cannot be heard to say: ' Even if I had done so they
" ' would not have been worn. ' ''

At pages 949 and 951 Birkett and Hodson, L.JJ. (as they then were) used
language which, it was submitted to us, supported this view. In the case
of Drummond v. British Building Cleaners Ltd. ([1954] 1 W.L.R. 1434)
Parker, L.J. (as he then was) at page 1444 adopted Lord Goddard's words
and reasoning.

With respect, I am unable to follow or accept this reasoning or its result
The necessity, in actions by employees against their employers on grounds
of negligence, of establishing not only the breach of duty but also the causal
connection between the breach and the injury complained of is in my view
part of the law of both England and Scotland. It was emphasised in this



3

House in the case of Wardlaw v. Bonnington Castings Limited (1956) S.C.
(H.L.) 26. I refer to, without quoting, what was said by Lord Reid at
page 31, Lord Tucker at page 34 and Lord Keith of Avonholm at page 35.
Their words made perfectly clear that the principle applied whether the
claim was based on the breach of a common law or statutory duty. This
principle was in my respectful view correctly applied by Paull, J. in the
first part of his judgment in Nolan v. Dental Manufacturing Co. Ltd. ([1958]
1 W.L.R 936, at page 940). Counsel for the Appellant was not able to
suggest to us a principle of law which would not only place the onus of
establishing that the breach of duty was not the cause of the accident on
the employers but also, in Lord Guest's words, would preclude the
employers from doing so.

It was urged on behalf of the Appellant that to desiderate, in the case of
a fatality, that the deceased would have used the safety device was to impose
a burden on the pursuer which she could never discharge since without the
deceased's evidence it must be impossible to prove what the deceased would
have done in a particular hypothetical situation which did not arise in fact.
The argument, therefore, took the form that Lord Guthrie was right when
he said that the onus was on the Respondents and that the onus could only
be discharged by direct evidence from the deceased as to what he was
going to do. I cannot see any grounds for such a limitation on the type
of evidence. What the deceased was going to do can be a matter of
inference from appropriate facts. Further and with respect, I do not agree
with Lord Guthrie that in this case or generally the onus is on the employers.
I am not prepared to say that there can never be a case where the nature
of the safety device and the obvious correlative duty of any reasonable
employee to use it are such that in the absence of other evidence it should
be inferred that he would have used it if it had been available: but that
is not this case.

The evidence demonstrates to a high degree of probability that if safety
belts had been available the deceased would in any event not have worn
one. On this aspect the Lord Ordinary and the learned Judges of the First
Division found in favour of the Respondents and rejected the Appellant's
contention. There were a number of witnesses called for the Appellant
and for these Respondents with wide experience in structural steel opera-
tions including, in some instances, work on tower cranes such as that in
which the deceased was engaged. The combined effect of evidence was
that steel erectors never wear safety belts except in certain very special
circumstances which do not include the erection of scaffolds for riveters
on tower cranes. No witness deponed to having ever seen a safety belt
worn in the course of such work and there was ample evidence from these
Respondents' employees and from others that safety belts were not worn
when such work was being carried out. One witness spoke of having seen
the deceased wearing a safety belt on one or possibly two occasions, when
doing an operation of a peculiar and special nature. The Lord Ordinary
did not accept his evidence on that matter, which in any event was not
corroborated. There was overwhelming evidence that the deceased did not
normally wear a safety belt and in particular it was proved that he had been
engaged in erecting riveters' scaffolds on the crane from which he fell, at
heights greater than that from which he fell and at times when safety belts
were available and that he had not on such occasions worn or asked for
a safety belt.

In my opinion it was clearly open to a court to infer that the deceased
would not have worn a safety belt even if it were available.

Finally it was submitted that if the deceased's hypothetical refusal to
wear a safety belt must be recognised as the effective cause of his not
wearing one and hence of his death, the failure of the Respondents to provide
a safety belt should not be ignored as a causative factor. The answer in my
view must be that there are four steps of causation: (1) a duty to supply
a safety belt; (2) a breach; (3) that if there had been a safety belt the
deceased would have used it; (4) that if there had been a safety belt the



4

deceased would not have been killed. If the irresistible inference is that the
deceased would not have worn a safety belt had it been available, then the
first two steps in the chain of causation cease to operate.

On the second submission, that the first Respondents should have exhorted
or instructed the deceased to use a safety belt, I have considered carefully
the argument based on the extent of the danger, I have, however, come
to the conclusion that it fails. There was a strong feeling among steel
erectors that safety belts were certainly cumbersome and might be dan-
gerous except in very special circumstances which did not obtain here.
This being so, I 'bear in mind the words of Lord Radcliffe in Qualcast
(Wolverhampton) Limited v. Haynes [1959] A.C. 743 at page 753:

" One " [word of caution] " is that, though indeed there may be cases
" in which an employer does not discharge his duty of care towards his
" workmen merely by providing an article of safety equipment, the
" Courts should be circumspect in filling out that duty with the much
" vaguer obligation of encouraging, exhorting or instructing workmen
" or a particular workman to make regular use of what is provided."

Moreover, I cannot exclude from .my mind the fact that Regulation 97
to which I have referred contains the words " such persons who elect
" to use them ". It would in my view be wrong to say that in such
circumstances there is a duty on the employers to exhort or instruct.

I would dismiss the appeal.

Viscount Simonds

My Lords,

The Appellant claims to recover damages from the Respondents jointly
and severally in respect of the death of her husband in an accident which
occurred on the 27th January, 1956. Her claim is based on the negligence
of the first Respondents—a common law claim—and a breach by the
second Respondents of their statutory duty under section 26 (2) of the
Factories Act, 1937. She has failed in her claim before the Lord Ordinary
and the First Division of the Court of Session and, however much one may
sympathise with her in her loss, I think that there can be no doubt that she
must fail again.

The deceased was a steel erector of many years' experience and was
employed by the first Respondents in erecting a steel tower for a crane
for the use of the second Respondents in their shipbuilding yard at Port
Glasgow. Whilst so employed he fell from a height of about 70 feet and
was fatally injured. I need not describe in detail the nature of his work.
It was dangerous work, as all such work must appear to a layman, but it
was not specially dangerous work. It was the work he had been accustomed
to do for many years. On the day of the accident he was not wearing a safety
belt. It was proved that a safety belt was not on that day available for
his use if he had wanted to use it. A belt had been available until two
or three days before the accident but then had been removed together with
the hut in which it had been stored to another site. It is a matter of
conjecture whether the deceased knew that it had been removed.

In these circumstances the simple case was made that the Respondents
were in breach of their duty to provide a safety belt for the use of the
deceased; he was not wearing one when he fell to his death; if he had
been wearing one, he would not or at least might not have so fallen:
therefore the Respondents are liable.

To this simple case the Respondents make answer. Let it be assumed
that they were in breach of their duty in not providing a safety belt on
the day of his accident and further that if he had then been wearing one,
the accident would not have occurred. Yet there is a missing link: for it
was not proved that the deceased was not wearing a belt because it was
not provided; and alternatively, if any question of onus of proof arises,
it was proved that if one had been provided, the deceased would not have
worn it.

5

My Lords, I do not doubt that it is a part of the law of Scotland as
it is part of the law of England that a causal connection must be established,
between a breach by an employer of his duty at common law or under
a statute and the damage suffered by his employee: see for example,
Wardlaw v. Bonnington Castings Limited, 1956 S.C. (H.L.) 26. If a contrary
principle is thought to be established in Roberts v. Dorman Long & Co. Ltd.
I cannot reconcile that case with Wardlaw. It may, however, be said that,
where the employer is in breach of his duty, there is in that fact some prima
facie evidence of a casual connection between the breach and the subsequent
damage. So far in this case I would go with the Appellant. It is the next
step that I cannot take. For, it having been found as a fact by the Lord
Ordinary and their Lordships of the First Division having unanimously
concurred in that finding, that it would be totally unrealistic to hold that
the failure to provide a belt was the cause of the accident, the learned
counsel for the Appellant was driven to the argument that the evidence on
which that finding was based was inadmissible or at any rate of no weight.
This argument I cannot accept.

The evidence showed conclusively that the deceased himself on this and
similar jobs had except on two special occasions (about which the evidence
was doubted by the Lord Ordinary) persistently abstained from wearing a
safety belt and that other steel erectors had adopted a similar attitude.
Nor was their attitude irrational or foolhardy. They regarded bells as
cumbersome and even dangerous and gave good reason for thinking so.
It was, however, urged that on this single occasion the deceased might have
changed his mind and that the Respondents did not and could not prove
that he had not done so.

My Lords, I would agree that, just as a claim against a dead man's estate
must always be jealously scrutinised, so also an inference unfavourable to
him should not be drawn except upon a strong balance of probability. But
there is justice to the living as well as to the dead, and it would be a denial
of justice if the Court thought itself bound to decide in favour of the
deceased because he might, if living, have told a tale so improbable that
it could convince nobody. That, my Lords, is this case, and in my opinion
the Courts below were amply justified in receiving the evidence given (not
only by the Respondents' witnesses) as to the attitude adopted by the
deceased and other steelworkers to the wearing of belts and acting upon it.

Another aspect of the Appellant's case deserves mention. It was urged
that the Respondents were at fault in that they not merely did not provide
a safety belt for the use of the deceased on the fatal day but also that
they had not instructed him to use it. It was pointed out by the Lord
Ordinary that any instruction on that day was out of the question, for the
belt was not there. The failure must, therefore, relate back to an earlier
period. The only meaning that the contention can bear is that, if during
his period of service the deceased had been instructed to wear a belt, he
would have done so and in such case a belt would or should have been
available for his use on the fatal day. My first difficulty in accepting this
contention lies in the ambiguity of the word " instruct " which learned counsel
did little to resolve. If the word means " teach how to use ", instruction
was superfluous, for no one could know better than the deceased how to
use a belt. If it meant " direct " or " order ", there was certainly a failure
to do so: but counsel did not advance this meaning. In face of the
language of Regulation 97 of the Building (Safety, Health and Welfare)
Regulations, 1948, and of the widely, if not universally, established practice
of steel erectors, it would have been impossible to contend that it was the
duty of the Respondents to order the deceased to wear a belt. We are
left with some intermediate meaning which can best perhaps be conveyed
by the word " exhort ". But I cannot see that anything is involved in
that beyond pointing out the possible advantage of wearing a belt, which
needed no pointing out, and decrying the disadvantage of it with which
the deceased and his fellow workmen did not agree. As the Lord President
said in his Opinion, with which I agree: " Indeed some of the witnesses
" stated that they would have had something to say to anyone who insisted
" on their carrying safety belts about on these jobs ". They might have



6

listened more politely to exhortation than direction. The result would have
been the same.

I have not thought it necessary to deal separately with the case of the
second Respondents. What I have said as to the necessity of a casual
connection between the breach of duty and the subsequent damage applies
mutatis mutandis to them.

The appeal should in my opinion be dismissed.

Lord Reid

My Lords,,

The Appellant is the widow of William McWilliams, a steel erector, who
was killed on 27th May, 1956, when he fell from a steel tower which was
being erected in a shipyard occupied by the second Respondents. The
first Respondents were his employers. McWilliams was setting up a work-
ing platform for riveters on the outside of the tower about 70 feet from
the ground. This had to be placed on " needles ", which are battens pro-
jecting some four feet from the tower. They were secured to the tower
by lashings. A lashing of one of the needles was not properly fixed so
that when the deceased put his weight on this needle it tilted and he fell
to the ground. It is not clear whether he was responsible for not fixing
it properly or not inspecting it, and in this action no fault is alleged against
the Respondents with regard to the needle.

The case made by the Appellant is that both Respondents were at fault
in not providing safely belts. These belts have about 15 feet of rope
attached to them so that the end of the rope can be tied to some convenient
part of the structure near where the man is working: then if he falls the
rope prevents him from falling more than its length. It is not denied that
if McWilliams had been wearing a safety belt when he fell he would not
have been killed. The employers do not deny that it was general practice
to provide such belts but they do not admit any duty to provide them.
The Courts below have held that they had this duty and also that, by reason of
the shipyard being a factory within the meaning of the Factories Act, 1937,
section 26 (2) of that Act required the second Respondents to provide these
belts. I need mot consider whether this was right, because the main defence
of both Respondents is that if such belts had been available on the day
of the accident McWilliams would not have worn one and therefore any
failure to provide a belt was not the cause of his death. I shall assume in
the case of both Respondents that they were in breach of duty in not
providing belts.

There can be no certainty as to whether the deceased would or would not
have worn a belt on this day, but the defenders maintain that it is highly
probable that he would not. Work on this tower had been proceeding for
many weeks and at least for a good part of that time he had been doing
work similar to that which he was doing when he fell. Throughout this
period safety belts had to his knowledge been available in a hut nearby,
and it is clear that it was not his practice to wear a belt. Steel erectors
were neither required nor exhorted to wear belts, and several witnesses with
long experience say that they had never seen any steel erector wear a belt,
and in particular that they had never seen McWilliams wear one. And
there is evidence that the condition of the belts showed that they had
seldom if ever been used. But one witness says that he saw McWilliams
wearing a belt on two occasions when working in an exposed position. The
Lord Ordinary thought this extremely doubtful, but I am prepared to assume
in the Appellant's favour that this evidence can be accepted. It was left
to the discretion of each man to decide whether to wear a belt, and it
appears that the reason why belts were not generally worn was not mere
prejudice against them. They axe cumbersome and some witnesses say
they might be dangerous in certain circumstances.

7

For some reason the belts were taken away to another site two or three
days before the accident. So after that the defenders were in breach of
their duty to provide belts. We do not know whether the deceased knew
that they had been removed, and there is nothing to suggest that during
those two or three days he may have considered changing his normal practice
not to wear a belt. So it appears to me to be a natural, and indeed almost
inevitable, inference that he would not have worn a belt on this occasion
even if it had been available. And that inference is strengthened by the
general practice of other men not to wear belts.

It was argued that the law does not permit such an inference to be drawn
because what a man did on previous occasions is no evidence of what
he would have done on a later similar occasion. This argument was
based on the rule that you cannot infer that a man committed a particular
crime or delict from the fact that he has previously committed other crimes
or delicts. But even that is not an unqualified rule (see, for example,
Moorov v. H.M. Advocate, 1930 J.G. 68), and there are reasons for that
rule which would not apply to a case like the present. It would not be
right to draw such an inference too readily because people do sometimes
change their minds unexpectedly. But the facts of this case appear to me
to be overwhelming.

I would have had much more difficulty if the only evidence had been that
there was a general practice not to wear belts. One would assume, in the
absence of evidence to the contrary, that the deceased was a reasonable
and careful man, and it may be that if the evidence proved that a reason-
able and careful man would not have worn a belt on such an occasion
that would be sufficient. But I would reserve my opinion about a case
which merely depended on evidence of general practice. I regard the
evidence about general practice in this case as corroborating the inference
to be drawn from McWilliams' own past conduct

The Appellant founded on the case of Roberts v. Dorman Long & Co.
Ltd. [1953] 1 W.L.R. 943. There a steel erector who was not wearing a
safety belt was killed during the erection of a steel building to which building
regulations of 1948 applied. They required that belts should be available
which would " so far as practicable enable such persons who elect to use
" them to carry out the work without risk of serious injury ". The employers
did have belts but they were kept so far away from the site that they were
held not to be available. One question in the case was whether the
employers' breach of statutory duty could be founded on in face of evidence
of a general practice to elect not to use such belts. The evidence is not
fully reported and it is not clear whether the deceased himself had ever had
an opportunity to use such belts, or whether the evidence merely related
to the practice of other men not to use them at other sites where they
were available. Lord Goddard, L.C.J. said: " It may very well be that the
" judge could form the opinion on the evidence that it was unlikely that if
" safety belts had been available the deceased would have used one ". But
he went on to say: " I think that if a person is under a duty to provide
" safety belts or other appliances and fails to do so, he cannot be heard to
" say: ' Even if I had done so they would not have been worn '."

In my view this is not correct. " He cannot be heard to say " suggests to
me personal bar or estopped: indeed I know of no other ground on which
a defender can be prevented from proving a fact vital for his defence. If
I prove that my breach of duty in no way caused or contributed to the
accident I cannot be liable in damages. And if the accident would have
happened in just the same way whether or not I fulfilled my duty, it is
obvious that my failure to fulfil my duty cannot have caused or contributed
to it. No reason has ever been suggested why a defender should be barred
from proving that his fault, whether common law negligence or breach
of statutory duty, had nothing to do with the accident

Hodson, L.J. (as he then was) put the matter rather differently. His
view was that there was no possibility of finding out whether the man would
have exercised his election one way or another. If my noble and learned
friend meant that if a man is dead you can never prove what he would have



8

done I would not agree with him. Proof in civil cases depends on proba-
bility, and I think that the ordinary man would be surprised if told that
you can never say that it is probable that in certain circumstances a deceased
man would have done one thing and not another. But if his observation
was directed to the facts of that particular case I am not prepared to say
that it was wrong without fuller knowledge of the evidence which had been
led. I have already said that I wish to reserve my opinion about a case
where the only evidence relates to the practice of other men engaged on
other work: much may depend on the precise nature of that evidence.

The Appellant also founded on Drummond v. British Building Cleaners
Ltd. [1954] 1 W.L.R. 1434. There a window cleaner had a safety belt but
there was nothing obvious to which to fix it. It might have been fixed to a
transom but that might have caused damage to the paint work. The
employers never got permission to do this or told the man he might do
it, so he had no real opportunity to use his belt. So the case depended on
such evidence as there was to the effect that he would not have used his
belt if he had been told how he could use it, and I need not express any
opinion as to whether it was rightly decided.

It has been suggested that the decision of this House in Wardlaw v.
Bonnington Castings Ltd., 1956 S.C. (H.L.) 26 lays down new law and
increases the burden on pursuers. I do not think so. It states what has
always been the law—a pursuer must prove his case. He must prove that the
fault of the defender caused or contributed to the danger which he has
suffered. But proof need not be by direct evidence. If general practice
or a regulation requires that some safety appliance shall be provided, one
would assume that it is of some use and that a reasonable man would use it.
And one would assume that the injured man was a reasonable man. So the
initial onus on the pursuer to connect the failure to provide the appliance
with the accident would normally be discharged merely by proving the circum-
stances which led to the accident, and it is only where the evidence throws
doubt on either of these assumptions that any difficulty would arise. Normally
it would be left to the defender to adduce evidence, if he could, to displace
these assumptions. So in practice it would be realistic, even if not theoretic-
ally accurate, to say that the onus is generally on the defender to show that
the man would not have used the appliance even if it had been available.
But in the end when all the evidence has been brought out it rarely matters
where the onus originally lay, the question is which way the balance of
probability has come to rest.

The Appellant had also a second line of attack. It was maintained that
the employers had a duty not only to provide the deceased with a safety belt
but also " to instruct him to wear it " (I quote from Condescendence 3).
" Instruct " is an ambiguous word. It may mean provide information or
it may mean give orders. Here it is admittedly intended to mean exhort
or encourage. It was quite unnecessary to give the deceased information:
the device was not new, he was no novice, and the work he was doing
was his ordinary work. He was well aware of the advantages and dis-
advantages of wearing a safety belt. It was not maintained that he should
have been ordered to wear it. For one thing there is some evidence that
the practice of providing belts even where regulations do not require it
arose from the requirement of the building regulations that belts shall be
available so that men can " elect " to use them. The practice is to give
men that choice whether or no the regulation applies : there is certainly no
practice to order or exhort men to use belts. The Appellant's case is that
there ought to be a practice to exhort them to do so.

In answer to that I would adopt what was said by Lord Radcliffe in
Qualcast (Wolverhampton) Ltd. v. Haynes [1959] A.C. 743 at p. 753.
" Though indeed there may be cases in which an employer does not dis-
" charge his duty of care towards his workmen merely by providing an
" article of safety equipment, the Courts should be circumspect in filling



9

" out that duty with the much vaguer obligation of encouraging, exhorting
" or instructing workmen or a particular workman to make regular use of
" what is provided. Properly to measure that obligation as a legal duty
" requires a fuller knowledge of the circumstances of the factory and of the
" relations .between employers and workmen and their representatives than
" was available at any rate in the present case ".

I can find nothing to justify holding either that there ought to have been
a general practice to exhort skilled and experienced steel erectors to use
these belts or that this man ought to have been specially urged to use a belt
when doing work on this tower: I am therefore of opinion that this appeal
should be dismissed.

Lord Morris of Borth-y-Gest

My Lords,

I have had the privilege of reading in advance the speech which has been
delivered by the noble and learned Lord Chancellor and I am in agreement
with it.

I would dismiss the appeal.

Lord Devlin

My Lords,

The Appellant is the widow of a steel erector who was killed by a fall
in the course of his employment by the first Respondents. She alleges
that the employers were in breach of their duty at common law to the
deceased in that they failed to provide him with a safety belt and failed
to instruct him to wear it. The Courts below have held that the employers
were in breach of their duty in failing to provide a safety belt, but that
that was not the cause of the deceased's death since he would not have
worn it if it had been provided. They have held also that there was no
duty on the employers to instruct the deceased to wear it. On this second
matter I cannot usefully add anything to the opinions already expressed
by your Lordships with which I agree.

On the first matter three points have been taken. First, whether the
employers can be heard to say that the deceased would not have worn
what they in breach of their duty failed to provide. Secondly, as to the
burden of proof: whether it is for the Appellant to prove that the deceased
would have worn a safety belt if provided or for the employers to prove
that he would not. Thirdly, whether, in order to establish as a matter
of probability that the deceased either would or would not have worn a
safety belt if provided, inferences can be drawn from the deceased's habits
and past conduct and from the habits of his fellow employees.

On the first of these matters Mr. Stott for the Appellant based his case
upon the proposition that the failure to provide the safety belt was the
cause of the Defendant's death. In my opinion this proposition is incomplete.
There is a missing link. The immediate cause of the deceased's death
was the fact that at the time of the fall he was not wearing a safety belt.
The cause or reason he was not wearing a safety belt may have been the
fact that one was not provided, but the failure to provide operates only
through the failure to wear. The correct way of stating the Appellant's
case is, I think, as follows. The immediate cause of the deceased's death
was that at the time of the fall he was not wearing a safety belt: but for
the fault of his employers, he would have been wearing a safety belt:
therefore the fault of his employers was an effective cause of his death.
So stated, it is plain that the reason why the deceased was not wearing a
safety belt must be a proper subject for inquiry.




10

Mr. Stott relied upon the decision of the Court of Appeal in Roberts v.
Dorman Long & Co. Ltd. [1953] 1 W.L.R. 942. This also was a case in
which the death of a steel erector was caused by his not wearing a safety
belt and his employers were in breach of duty in not making one available.
The duty relied upon was created by Regulation 97 of the Building (Safety,
Health and Welfare) Regulations, 1948, which provided that " there shall
" be available safety belts . . . which will so far as practicable enable such
" persons who elect to use them to carry out the work without risk of
" serious injury ". The Court held that it was no answer for the employers
in such circumstances to say that if they had made safety belts available,
the deceased would not have used them; the fact that they were not
available gave him no opportunity of exercising his election. It is clear
that this reasoning was based upon the words of the Regulation: the
Court held the employers to be guilty of a breach of the Regulation but
not a breach of their duty at common law. The case does not, therefore,
in my opinion, assist Mr. Stott in his argument against the first Respondents ;
though I shall consider it again when I consider the case against the second
Respondents which is based on the breach of statutory duty.

The second point raises the question of the burden of proof. The proposi-
tion, as I have stated it above, appears to put on the Appellant the burden
of showing why the deceased was not wearing a safety belt; she must
prove her case, and it is part of her case that he was not wearing a belt
because of the fault of his employers. But since ex hypothesi a prudent
employer would provide a belt, it must follow that a prudent employee
would wear it when provided. Any inquiry of this sort starts from the
presumption that the pursuer or the defendant, as the case may be, has
done what is reasonable and prudent; and it is for the opposite party to
displace that presumption by pleading and proving negligence or contributory
negligence, as the case may be. So if there were no evidence at all to
show why the deceased was not wearing a safety belt, it would be proper to
conclude that the reason was because the employers had failed to provide
one.

This question of the burden of proof is frequently important when what
is in issue is what a dead workman in fact did. Without his evidence it may
be difficult to prove that negligence by the employers was an effective cause
of the death: once negligence is proved, the fact that the workman cannot
be called to account for his actions often defeats the proof of contributory
negligence. But in the present case the question is not what the deceased
actually did but what he would have done in circumstances that never arose.
Whether the workman is alive or dead, this cannot be proved positively as
a matter of fact but can only be inferred as a matter of likelihood or
probability. Even when the workman himself is perforce silent, there may
be plenty of material, as there is in this case, from which an inference can
be drawn one way or the other; and then the question of burden of proof
is unimportant.

That brings me to the third of Mr. Stott's submissions. He submits that
what the deceased would have done cannot be proved by inference. It must
be proved, he says, by direct evidence, such as a statement by him that he
never in any circumstances wore a safety belt. The fact that in the past
the deceased never wore a safety belt is not admissible to show that he
would not have worn one on the material occasion: such is the argument.

There is here, I think with respect, a confusion of thought. The fact that
a man under certain conditions on Monday, Tuesday and Wednesday (I
take this example from Mr. Stott's argument) drove carelessly may be
inadmissible to prove the fact that he drove carelessly under the same con-
ditions on Thursday. Inglis v. The National Bank of Scotland, 1909 S.C.
1038, on which Mr. Stott relied, may take him that far. The proposition
laid down is " that it is not evidence against a party of having committed
" a delict to show that he has committed delicts of the like descrip-
" tion against other persons on other occasions." I express neither approval
nor disapproval of that decision; the rule embodied in it is certainly one
generally applied in the criminal law. But here the question is not what the



11

deceased did but what he would have done. That is a matter that is incapable
of direct proof; it must be a matter of inference. His statement about
what he would have done, if he were alive to make it, is only one of the
factors which the Court would have to take into consideration in its task
of arriving at the correct inference. A man's actions in the past may well
be a safer guide than his own forecast of his actions in the future.

In my judgment the Courts below were right to receive and consider
the evidence that the deceased had never used a safety belt in the past
when it was available. That is material from which it is permissible to
draw the inference that he probably would not have used one if it had been
provided on the day of his death. I think also, though with more hesita-
tion, that the Courts below were right in considering for what it was worth
the evidence of the general practice of steel erectors, though without some
evidence of the deceased's own attitude towards safety belts I do not think
it would have been worth much.

Undoubtedly a court should be very careful about finding what one may
call hypothetical contributory negligence. A defendant, whose negligence
has prevented the matter in issue from being put directly to the proof,
must expect that a court will be very careful to make sure that it is acting
upon legitimate inference and not upon speculation. But in the present
case the evidence, even if it were confined to the deceased's own past acts,
is in my opinion conclusive. If he had been injured only by the fall and
could have gone into the witness box, and if he had there sworn that he
would have been wearing a safety belt if one had been available that morning,
I do not see how he could have been believed.

The second Respondents are sued as the occupiers of the " factory " in
which the deceased was working at the time of his death for a breach of
the Factories Act, 1937, section 26 (2), in that they failed to provide means,
so far as is reasonably practicable, for ensuring his safety. The means
suggested was the safety belt; and, as in the case of the first Respondents,
the Courts below found that there was a breach of duty but that it was not
the cause of the deceased's death. On the issue of causation the only
question that remains is whether the obligation imposed by section 26 (2)
is different in nature from that imposed by Regulation 97 of the building
regulations, so that Roberts v. Dorman Long can be distinguished ; and
if not, whether that case ought to be followed. I was at one time disposed
to think that the obligations were different because of the words in Regula-
tion 97, " enable such persons who elect to use them ", and because the
breach in Roberts v. Dorman Long was expressed as a failure to give the
workmen the opportunity to elect. But on consideration I do not think that
anything turns on these words. Some statutes may require an employee
to use the means provided ; others may leave him free to use them or not
as he chooses. In either case, it must be open to the employer to show that
the means would not have been used or that the opportunity to elect would
not have been taken, it is substantially the same thing. I therefore agree
with Davies, L.J., giving the judgment of the Court of Appeal in Wigley
v. British Vinegars, Ltd. [1961] 3 W.L.R. 1261, that Roberts v. Dorman Long
cannot be distinguished from the ordinary case; and that since it can no
longer be supported on the authority of Vyner v. Waldenburg Bros, Ltd.
[1946] K.B. 50, that case having been overruled by Wardlaw v. Bonnington
Castings Ltd. [1956] AC 613, it can no longer be regarded as good law.

(P/32143) Wt. 8118-81 35 3/62 St.S./PA/19