Liability Issues

Cases

Baker v Quantum Clothing Group Ltd & Ors (Ver 2)

 [2011] UKSC 17

UKSC LORD MANCE

“Introduction

This appeal concerns the liability of employers in the knitting industry of Derbyshire and Nottingham for hearing loss shown by employees to have been suffered during the years prior to 1 January 1990, the date when the Noise at Work Regulations 1989 (SI 1989/1790) came into force. The central issue is whether liability exists at common law and/or under section 29(1) of the Factories Act 1961, towards an employee who can establish noise-induced hearing loss resulting from exposure to noise levels between 85 and 90dB(A)lepd.

Analysis of common law position:

(a) Greater than average knowledge?

At the level of principle, the parties’ submissions take one back to Swanwick and Mustill JJ’s classic statements regarding the test of negligence at common law (paras 9 and 10 above). These statements identify two qualifications on the extent to which an employer can rely upon a recognised and established practice to exonerate itself from liability in negligence for failing to take further steps: one where the practice is “clearly bad”, the other where, in the light of developing knowledge about the risks involved in some location or operation, a particular employer has acquired “greater than average knowledge of the risks”. The question is not whether the employer owes any duty of care; that he (or it) certainly does. It is what performance discharges that duty of care. For that reason, I find difficult to accept as appropriate in principle some of the reasoning in another, more recent Court of Appeal authority, Harris v BRB (Residuary) Ltd [2005] EWCA Civ 900; [2005] ICR 1680 (Neuberger and Rix LJJ).

In Harris, the issue was whether regular exposure of train locomotive drivers between 1974 and 2000 to noise levels between 85dB(A) and 90dB(A) gave rise to liability for any noise-induced hearing loss shown to have resulted. Neuberger LJ gave the sole reasoned judgment. He accepted on the evidence before the court that, “at least until the 1989 Regulations came into force, … an employer would not normally be expected to be liable to an employee who was exposed to a level of sound lower than 90dB(A)leq”, but said that “this evidence cannot go so far as to negative in all circumstances liability to employees whose health is impaired as a result of exposure to sound below that level” (para 39). After quoting Swanwick J, Neuberger LJ suggested that a good working approach might be to treat 90dB(A) as giving rise to a presumption, with the effect that, below 90dB(A), it was “for the employee to show why a duty should be imposed at all” (paras 40-41). The reference to a duty being imposed derives from the way in which the defendant’s case was presented: the submission was that “the mere fact that a particular level of sound is potentially injurious does not of itself give rise to a duty of care. … the existence of a duty of care ‘depends not merely on foreseeability of injury but whether it is just and equitable to impose the duty” (para 36).

On this basis, Neuberger LJ said that, while not intending “to call into question the applicability in the general run of cases of the 90dB(A)leq threshold” each case “must turn very much on its facts, not least because of the ‘just and equitable’ test accepted, indeed advanced on behalf of the defendant …” (para 38). In my opinion, however, the adoption of such a test would import an extraneous concept. The primary inquiry, when considering whether an employer has acted with due care to avoid injury from noise-induced hearing loss, is whether there is a recognised and established practice to that end; if there is, the next question is whether the employer knows or ought to know that the practice is “clearly bad”, or, alternatively, if the area is one where there is developing knowledge about the risks involved in some location or operation, whether the employer has acquired “greater than average knowledge of the risks”. Considerations of justice and equity no doubt underlie both Swanwick and Mustill JJ’s statements of principle. But to ignore the statements and to restate the inquiry in simple terms of “justice and equity” opens a wide and uncertain prospect, despite the court’s attempts in Harris to emphasise that it was not departing from a position whereby an employer would not “normally” be expected to be liable for a level of sound lower than 90dB(A).

That prospect has a present resonance, although HHJ Inglis did not base himself on the reasoning in Harris, but used language picking up the more conventional statements of principle. Nonetheless, I consider that he did not apply those statements in the sense in which they were meant. He did not consider the practice represented in the Code to be clearly bad during the 1970s or until the end of the 1980s; and it is common ground that the general state of knowledge about the risks involved in the knitting industry remained essentially static throughout this period (see also the first seven sentences of para 87 of the judge’s judgment). As Mr Hendy made clear in the Court of Appeal (Core II, pp.749-750), no question of special resources arises, since no amount of research would have led to further knowledge, or indeed to different conclusions about the level of risk than those indicated in the Code of Practice. Mr Hendy is in my opinion also correct in saying that the judge based his conclusions, including those relating to Courtaulds and Pretty Polly, on generally available published provisions and materials, rather than on any specific knowledge. That is particularly apparent from the final sentences of paras 56 and 66 of his judgment (cited in the appendix) as well as in paras 87 and 88. It might perhaps have been suggested, in relation to Courtaulds, that the rising incidence of claims which they experienced in the early 1980s gave rise to some degree of special knowledge, but that is not how the matter has been put.

It follows that, on the judge’s approach, the only real difference between employers lay in the degree of their consideration of and reaction to such risks. In these circumstances, the judge’s conclusions in relation to Meridian (Courtaulds) and Pretty Polly amount in substance to saying that, because these companies focused more closely on the potential risk below 90dB(A) and displayed greater than average social awareness (to use Mustill J’s words in Thompson at p 415H) by resolving that some action should probably be taken at times before ordinary, reasonable employers arrived at any such conclusion, they incurred greater liability than such employers. The judge himself recognised here a paradox (para 88). Those who have a safety department and medical officers and take noise more seriously than the ordinary reasonable employer are liable, while others are not. That is appropriate if extra resources or diligence lead to relevant fresh knowledge. But here they have led simply to the formation or inception of a different view to that generally accepted about what precautions to take. In such a case, the effect of the judge’s approach is not to blame employers “for not ploughing a lone furrow”; rather, it positively blames them for ploughing a lone furrow but not doing so deeply enough. When Mustill J spoke of “changes in social awareness” (p 415H), he was referring to changes leading to a general raising of the standard which average employers were expected to observe, not of individual employers spear-heading such changes by forming the view that the standard should be raised. In my view, therefore, no real basis was shown for treating Courtaulds and Pretty Polly differently. On this aspect of the appeal, I would only add two points: first, had I considered there to be a sound basis for treating Courtaulds and Pretty Polly as having relevantly different and greater knowledge than average employers, I would see no basis for the Court of Appeal’s addition of Quantum into the same special category; Lord Dyson and Lord Saville agree, I understand, that there was no such basis; secondly, since Lord Dyson does not share the view that the judge should not have treated even Courtaulds and Pretty Polly as falling into a special category (see para 104 below), it follows that there is no majority in favour of this view and that (in reflection of the common ground between Lord Dyson, Lord Saville and myself), the appeal should be allowed only to the extent of restoring the judge’s decision in this regard.

(b) Was the Code of Conduct an acceptable standard for average employers?

In my opinion, the respondent is correct in submitting that the real question is the sustainability of the judge’s conclusion that the Code of Practice constituted an acceptable standard for average employers to adhere to during the 1970s and 1980. If that conclusion is upheld, then no real basis is shown for treating Courtaulds and Pretty Polly differently. The Court of Appeal expressed agreement with the judge’s conclusion that the Code of Practice remained a generally acceptable standard. Smith LJ stated that this conclusion “cannot be faulted” and that “I would uphold his view that there was no breach of the duty at common law during the period for which a responsible body of opinion regarded it as ‘acceptable’ to expose employees to noise in the 85-89dB(A)lepd range” (para 105). Endorsing, in effect, the judge’s approach of distinguishing between employers with average and greater than average knowledge, she concluded para 105 by saying:

“I consider that, for the employer with the ordinary or average degree of knowledge, the judge’s conclusion that that period came to an end in 1987, following publication of the second European draft directive, was a reasonable conclusion, although, left to myself, I would have said that the publication of the first draft directive in 1982 would have put all employers on notice that it could no longer be regarded as acceptable or reasonable to leave this group of employees exposed.”

Turning to examine the different dates of common law liability which the judge had imposed, Smith LJ identified the issue as being when employers “should have realised that it was no longer to be regarded as acceptable to disregard” the risk to some of their employees from exposure to 85-89dB(A)lepd, of which they should, because of the Code of Practice, have been aware from 1972 (para 107). As regards Courtaulds, she regarded the judge’s conclusion as plainly justified, saying that “By 1983, they could no longer have thought that a responsible body of opinion took the view that it was acceptable to ignore the risks of harm below 90dB(A)lepd” (para 107). However, that appears to say that from 1983 there was no responsible body of opinion in favour of relying on the Code of Practice, and, if so, it should on its face have led automatically to a conclusion that no reasonable employer could do so. Nonetheless, Smith LJ went on to consider the state of Pretty Polly’s awareness about the need to take action and the 1982 draft directive and of Quantum’s awareness of the draft directive. After noting Quantum’s awareness of the draft directive, she accepted Mr Hendy’s submission that “it was irrational to say that, because the group was smaller than Pretty Polly or Courtaulds and operated as individual companies without the benefit of central advice on health and safety issues, they should be treated differently from the other two employers” (para 109). While Smith LJ ostensibly viewed the issue (as the judge did) as depending upon analysis of each individual employer’s position, in reality her approach seems to suggest a conclusion that the Code of Practice ceased to be an acceptable standard for any responsible employer in 1982. In effect, the Court of Appeal appears to have disagreed with HHJ Inglis’s conclusion that the period during which a reasonable employer could rely upon the Code of Practice continued until 1987. The basis for this, despite the passage concluding para 105 of Smith LJ’s judgment, quoted above, appears to have been the publication in 1982 of the first draft directive.

The judge’s conclusion in para 87 was the product of a lengthy trial, and was based on extensive expert evidence. The Code of Practice itself repeatedly refers to a “limit” defined in section 4.3.1 in relation to continuous noise exposure as 90dB(A)lepd: see e.g. sections 2.2.1, 3.1.2, 4.1.1, 4.2.1, 5.1.1, 6.1.3, 6.7.1 and 7.1.1. It also says that “Where it is reasonably practicable to do so it is desirable for the sound to be reduced to lower levels” (section 4.1.1), but this has to be read with section 6.1.3, which states: “Reduction of noise is always desirable, whether or not it is practicable to reduce the sound level to the limit set out in section 4, and whether or not it is also necessary for people to use ear protectors. Reduction below the limit in section 4 is desirable in order to reduce noise nuisance”.

When addressing section 29(1) of the Factories Act 1961, the Court of Appeal said (para 101) that, although the Code of Practice was not irrelevant, “it was, in itself, plainly inadequate as an assessment tool”, in that it “advised only that there was some risk to susceptible individuals from exposure below 90dB(A)lepd”; and it went on to conclude that the publication of BS 5330 in July 1976 could and should have enabled any average-sized employer in the knitting industry, with the assistance of anyone with a modest degree of mathematical skill or any consultant acoustic engineer, to make an informed assessment of the quantum of risk arising from noise below 90dB(A)lepd. These statements are not on their face easy to reconcile with the judge’s findings (in particular in paras 46-48 and 87). However, they were made in the course of considering the issue of reasonable practicability under section 29, and on the basis that it was irrelevant in that context whether a reasonable employer could reasonably rely upon the Code of Practice as setting an acceptable standard of conduct in relation to exposure of employees to noise: see paras 89 and 100 (quoted in para 75 below). Even if regarded as consistent with the judge’s findings, they do not therefore bear on the question whether the Code of Practice provided such a standard.

…..

“46. … There was evidence given by the expert witness engineers for Courtaulds (Mr Bramer and Mr Currie) about the approach to control of noise in the period from the 1970s in industry. The report of Mr Worthington for Pretty Polly and Guy Warwick is also in evidence. To Mr Bramer, the guidance in ‘Noise and the Worker’ and the 1972 Guidelines provided a ‘clear and consistent recommendation to employers as to how they ought to deal with noise in the workplace’. The result was that in his practice, his invariable advice until the late 1980s, was that ‘the relevant level was a daily personal noise exposure of 90dB(A)’. This approach, he said, was standard during the period up to 1989 among noise professionals, and taught at training courses. In the mid 1980s, when it appeared that EEC regulation would involve a first action level of 85dB(A) his advice changed to reflect that. He was not aware of the NPL tables before the 1980s when he found that they were being used by medical experts writing reports for the purpose of deafness claims. He has never come across them being used in any part of industry. In evidence Mr Bramer said that he gave advice to employers in terms of complying with the 1972 Code. He was speaking to the 90dB(A) level, as were all his colleagues. He agreed that the advice would be to answer the question ‘Tell us how to comply with legislation and the Code of Practice’, rather than ‘Tell me how to avoid reasonably foreseeable risk to my workforce’. He would have recommended 90dB(A) as the cut off point, but would also have said ‘that does not actually stop some more susceptible people from having some small noise induced hearing loss’. If asked about risk, he would have had some difficulty, and regarded the question as more one for medical people.

47. Mr Currie said that the Health and Safety Executive and factory inspectors after the Health and Safety at Work etc Act 1974 concentrated their advice and enforcement on the 90dB(A) level. He was not aware of any instance in which the NPL tables had been used by employers to predict the level of risk for their workforce. In evidence Mr Currie said that good practice won’t necessarily remove all risk. He agreed that there has been no very different understanding about noise induced hearing loss since the 1970s. The first thing to look at when deciding on practices, which is what employers have to do, is to look at the guidance available.

Mr Worthington’s report is to the effect that employers looked to the 90dB(A) limit in the Code of Practice as the maximum acceptable limit, and that the Factory Inspectorate and HSE did not refer employers to the risks below that limit as risks about which they should take action. That was the practice of the day, and employers taking advice, if they did, would be referred to the standard in the Code as being what had to be observed.

48. It is clear from some of the documents referred to above that by the beginning of the 1980s there were still many people employed in industry exposed over 90dB(A)lepd, and that the approach of enforcement agencies was to concentrate on those people. The evidence of the engineers referred to above suggests that that was a common approach until at least into the mid 1980s. That the 90dB(A)lepd level was regarded, as is the effect of the evidence of the engineers referred to above, in industry as the touchstone of reasonable standards that should be attained is evidenced by notes published by the Wolfson Unit for Noise and Vibration Control in the University of Southampton in 1976.”

Mr Bramer and Mr Currie were independent engineers called as witnesses at trial. There is no suggestion that they were employed by or advisers to Courtaulds or any of the other employers involved in this case at any date relevant to liability in this litigation. The judge was clearly impressed by their evidence. Whatever critique might, with hindsight, be directed at the advice or approach they said was being given or taken in respect of employers does not alter the fact that this was the contemporaneous advice and approach, upon which the judge found that reasonable employers could generally rely, unless they fell into his category of employers with “greater than average knowledge”.

The Court of Appeal attached considerable relevance to employers’ awareness of the first draft directive prepared by the Commission in October 1982. As I have observed, the court did not accurately place the position of this directive in the development of legislation at the European level (para 15 above). More importantly, a Commission draft is only a proposal for legislation by the Council of Ministers, and no reliance was or is placed on any underlying material which may, or may not, have been produced in its preparation or support. The first draft directive was proposed by the Commission as a basis for legislation in 1982, proved controversial, and was withdrawn in 1984. It was superseded by a differently framed legislative proposal, agreed by the Council of Ministers in May 1986, which gave member states until 1 January 1990 to bring into force provisions complying with the directive.

In the light of the above, there is, in my opinion, no basis for the court to disturb the judge’s conclusion in para 87 that the Code of Practice was an official and clear guidance which set an appropriate standard upon which a reasonable and prudent employer could legitimately rely in conducting his business until the late 1980s.

Before leaving this aspect, it is also worth noting one further small indication of the consistency of the judge’s conclusion with informed contemporary attitudes. The relevant level of noise exposure above which a reasonable employer should take protective steps was of direct relevance in the early case of noise-induced hearing loss, Kellett v British Rail Engineering Ltd (Popplewell J, 3 May 1984). The strength of the representation attests to the importance attached to the issues. On the facts and in the light of agreed expert evidence, Popplewell J recorded that there had been exposure for long periods initially in the period 1946 to 1955 below 90dB(A) and then in the period 1955 to 1979 above 90dB(A), and proceeded on the basis that “The level of 90 is generally recognised as being a figure above which it is necessary for precautions to be taken”. That was the basis on which it was accepted that the defendants, who had taken no precautions until 1979, were negligent.

(c) What period should be allowed for implementation of any different standard?

It follows, in relation to all the employers before the court, that the date when they should have been aware that it was no longer acceptable simply to comply with the Code of Practice was the date identified by the judge as applicable to Quantum and Guy Warwick, that is “the time when the terms of the 1986 directive became generally known in the consultative document of 1987” (para 87). Dealing with this point, Smith LJ said (para 105):

“I consider that, for the employer with the ordinary or average degree of knowledge, the judge’s conclusion that that period came to an end in 1987, following publication of the second European draft directive, was a reasonable conclusion …”

Adding a further six to nine months for implementing protective measures (instead of the judge’s period of two years), she went on to conclude (para 106) that:

“In case it should ever become material, I would fix the date for breach of common law duty for the average employer at January 1988.”

Leaving aside for the moment the difference in the period allowed for protective measures, that approach does not reflect the nuances of the judge’s finding. The consultative document was issued in 1987, but seeking responses no later than 30 June 1988. Its terms would have become “generally known” during the period of consultation, which was to last to 30 June 1988. The judge was prepared to add a period of two years for “putting a conservation programme into action, accompanied by information and instruction” (para 88). This would bring the period before ear protection would have to be made available to those exposed to noise levels over 85dB(A)lepd to 1 January 1990, the date when the Directive and Regulations under it anyway required such protection to be made available to them. I therefore understand the judge as having held that Quantum and Guy Warwick had no potential common law liability in negligence before 1 January 1990.

The judge, in taking two years as the appropriate period for “putting a conservation programme into action, accompanied by information and instruction”, referred to a further passage in Thompson. Mustill J there said (pp 423-424):

“From what date would a reasonable employer, with proper but not extraordinary solicitude for the welfare of his workers, have identified the problem of excessive noise in his yard, recognised that it was capable of solution, found a possible solution, weighed up the potential advantages and disadvantages of that solution, decided to adopt it, acquired a supply of the protectors, set in train the programme of education necessary to persuade the men and their representatives that the system was useful and not potentially deleterious, experimented with the system, and finally put it into full effect? This question is not capable of an accurate answer: and indeed none is needed, as will appear when the scientific aspects of the case are considered.

Various years were selected as rough markers, for the purpose of argument. I reject without hesitation the notion that the date lay somewhere in the years immediately preceding and following the Second World War. It was not until 1951, with the inconspicuous entry of the V-51R into the United Kingdom market that even a really enlightened employer would have started to ask himself whether something could be done. Even then, I consider that it pitches the standard of care too high to say that an employer would have been negligent, from that date, in failing to find, decide upon, and put into effect a system of using the protectors then available. At the other extreme, I consider that the choice of a date as late as 1973 cannot be sustained. The problem, and the existence of different ways in which it might have been combated, had been well known for years; there had been devices which were both reasonably effective, and reasonably easy to wear; and if the employers did not know precisely what they were they would have had no difficulty in finding out.

All this being so, I conclude that the year 1963 marked the dividing line between a reasonable (if not consciously adopted) policy of following the same line of inaction as other employers in the trade, and a failure to be sufficiently alert and active to measure up to the standards laid down in the reported cases. After the publication of ‘Noise and the Worker’ there was no excuse for ignorance. Given the availability of Billesholm wool and reasonably effective ear muffs, there was no lack of a remedy. From that point, the defendants, by offering their employees nothing, were in breach of duty at common law.”

The Court of Appeal disagreed with HHJ Inglis’s period of two years on the basis that he was “allowing time not merely for the provision of ear protectors but also for the noise measurement and policy decisions which preceded the actual provision of protection” and that, by the time when employers should have appreciated the need for noise protection below 90dB(A), they must “be taken to have known already to which workshops that applied” (para 106). In paras 32 and 48 of her judgment, Smith LJ also noted that Courtaulds’ noise committee had over a period of a year (between March 1983 and March 1984: see para 52 of HHJ Inglis’s judgment) identified areas of over 90dB(A)lepd and areas of 85 to 90dB(A)lepd.

There is a paucity of evidence in this area of the case. It is common ground that some period should be allowed, and the period chosen by the judge fits with periods chosen by courts in other contexts – see e.g. Armstrong v British Coal Corporation [1998] CLY 975, para 2842, Smith v Wright & Beyer Ltd [2001] EWCA Civ 1069, para 6, and Brookes v South Yorkshire Passenger Transport Executive [2005] EWCA Civ 452, paras 22-23 (and, less clearly on this point, Doherty v Rugby Joinery (UK) Ltd [2004] EWCA Civ 147; [2004] ICR 1272, paras 21 and 33-35) – as well as with periods commonly allowed for the implementation of new health or safety measures, e.g. under Directive 86/188/EEC and the Noise at Work Regulations 1989 which gave effect to it domestically. I do not see how it can be said that all employers who exposed their employees to noise levels between 85 and 90dB(A)lepd up to the end of 1987 must, Smith LJ’s words (para 106) “by that time be taken to have known already to which workshops” the provisions of the Directive and Regulations would apply. An employer’s duty towards a particular employee depends upon the circumstances of that particular employee’s employment. Smith LJ appears to have derived the duty to have measured noise levels from the fact or likelihood that there were other employees exposed elsewhere by the relevant employers to noise levels exceeding 90dB(A)lepd (paras 92-93). But the relevant circumstance is that none of the employees to whom this case relates were employed in circumstances where they were exposed to noise levels exceeding 90dB(A)lepd. Accordingly, the relevant employers were not, on the judge’s findings, under any duty to take further steps. The Code of Practice only stipulated that “All places where it is considered the limit in section 4 may be exceeded should be surveyed” (section 5.1.1). The limit referred to in section 4 for continuous exposure was that “If exposure is continued for eight hours in any one day, and is to a reasonably steady sound, the sound level should not exceed 90dB(A)” (section 4.3.1). I do not therefore consider that the basis on which the Court of Appeal interfered with the judge’s conclusion on this point was justified.

……

The Factories Act 1961

In relation to the scope and application of section 29(1) (set out in para 11 above), the Court of Appeal disagreed substantially from the judge, holding that the section involves a significantly more stringent standard of liability than any arising at common law. Several important issues arise on which there is no prior authority at the highest level: whether section 29(1) applies at all, where the claim relates not simply to the workplace, but to activities carried on at it; whether it applies to risks of noise-induced hearing loss arising from such activities in relation to long-term employees working in the place; whether the safety of a place is an absolute and unchanging concept or a relative concept, the practical implications of which may change with time; and what is meant by “so far as is reasonably practicable” and how it relates to the concept of safety.

(i)         Lack of safety arising from activities

The first issue concerns the extent to which a place can be rendered unsafe by activities carried on at it. The appellants rely on the background to section 29(1) to argue that it cannot. Section 29 re-enacts section 26 of the Factories Act 1937, as amended by section 5 of the Factories Act 1959. Section 26, as originally enacted, did not have wording corresponding with the second part of section 29(1). The words “and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there” were added by section 5 of the 1959 Act. The amendment adding them was proposed late in the passage of the bill. It was felt to be “a real fault and a gap in the existing legislation” that it covered only the means of access to, and not the safety of, the place of work. The Minister, Mr Macleod, accepted the idea, and, ultimately accepted in substance the whole amendment (House of Commons Standing Committee B, 12 March 1959, 17th Sitting, cols 747-752). There had been a series of prior cases in which courts had had to distinguish, less than happily, between the place of work and means of access to it, and to reject claims on, for example, the ground that the employee was injured at his workplace on his way to the lavatory, rather than on his way to his workplace: see Davies v de Havilland Aircraft Co Ltd [1951] 1 KB 50; Rose v Colville’s Ltd 1950 SLT (Notes) 72; Dorman Long & Co Ltd v Hillier [1951] 1 All ER 357 and Prince v Carrier Engineering Co Ltd [1955] 1 Lloyd’s Rep 401. Looking at the matter today, one might perhaps have expected responsibility for the safety of the workplace to be a subject for legislative attention even before responsibility for the means of access to it. But, for whatever reason, that was not the original statutory scheme.

The gap was filled by the 1959 amendment. In considering the scope of the words added, Mr Beloff QC, on behalf of the first appellant, submits that the means of access looks to physical dangers or obstructions, that section 29(2) is likewise clearly focused on the physical risks inherent in working at height, and that the whole section is part of a scheme of criminal liability, from which any civil liability only follows “by judicial interpretation” (Taylor v Coalite Oils & Chemicals Ltd (1967) 3 KIR 315, 318, per Diplock LJ). This last point has some, though only limited, force, for two reasons. First, the criminal liability is under the Act imposed on the occupier or, in certain cases not presently relevant, on the owner of the factory. That to my mind suggests that responsibility under section 29 is likely to attach to matters over which an occupier (typically of course the employer him- or itself) would be expected to have control. But such matters would include not merely the physical state of the premises, but also, at least, the carrying on there of regular activities. Secondly, a person is “not to be put in peril upon an ambiguity, however much the purpose of the Act appeals to the predilection of the court” (London and North Eastern Railway Co v Berriman [1946] AC 278, 313-314, per Lord Simonds). However, it is only if the section is ambiguous, unclear or open to two reasonable interpretations that its penal effect may indicate the narrower construction (Franklin v Gramophone Co Ltd [1948] 1 KB 542, 557, per Somervell LJ), and courts should remember that the Factories Act is “a remedial measure passed for the protection of the workmen [which] must, therefore, be read so as to effect its object so far as the wording fairly and reasonably permits” (Harrison v National Coal Board [1951] AC 639, 650, per Lord Porter; McCarthy v Coldair Ltd [1951] 2 TLR 1226, per Denning LJ). Mr Beloff is however also right to remind the Court that it is always necessary to consider in what respects and to what extent the Act involves remedial measures.

Mr Beloff QC submits that there are three possible interpretations of section 29(1): a minimalist, a maximalist and a middle way. The minimalist would involve treating the section as confined to intrinsic aspects of the physical place, ignoring any activities carried on there. With the possible exception of the Delphic rejection of the claim under section 29 by Mustill J in Thompson at p 449C-D, there appears to be no reported case rejecting a claim under that section on this basis. Reference was made to the interpretation given to section 25(1) and by extension section 26(1) of the 1937 Act: in Latimer v AEC Ltd [1953] AC 643, the House held that section 25(1), which in its then form provided: “All floors, steps, stairs, passages and gangways shall be of sound construction and properly maintained”, was not breached when a structurally sound factory floor became wet and oily after a flood due to an unusually heavy rainstorm; and that approach was then applied under section 26(1) in Levesley v Thomas Firth & John Brown Ltd [1953] 1 WLR 1206 (CA), where in the course of some loading operations a block of iron was left temporarily protruding three inches out into a gangway, used as a means of access. This restriction of the word “maintained” in relation to the means of access has been strongly criticised in successive editions of Munkman’s Employer’s Liability at Common Law, and there is no reason to extend it to the words “be made and kept safe” which govern the duty, first introduced in 1959, in relation to the safety of the workplace. Indeed, it is clear from the Parliamentary materials that the words “and kept” were introduced specifically with the Latimer case in mind, and to make clear that employers should so conduct their business as to see that a workplace did not become unsafe. The examples were given of overstocking or slippery substances left on the floor (Factories Bill, Standing Committee B, 12 March 1959, cols 749-750).

A workplace may therefore be unsafe because of some feature which is neither structural nor permanent. But this does not determine whether a workplace may be unsafe by reason of operations carried on in or at it. Mr Beloff submits that the law took a wrong turn in Evans v Sant [1975] QB 626, when the Divisional Court initiated what he described as a middle approach which was later followed by the Court of Appeal in Wilson v Wallpaper Manufacturers [1982] CLY para 1364 and Homer v Sandwell Castings Ltd [1995] PIQR P318. In Evans v Sant, the Divisional Court (Lord Widgery CJ, Bridge and Shaw JJ), on a case stated by magistrates after conviction, said that the guiding light in their approach was that

“in deciding whether the place of work was made safe, it is the place qua place that we look at, and not the place qua operation carried on upon the place” (p 635G-H).

But Lord Widgery CJ then went on (pp 635H-636B)

“That does not mean of course that in deciding whether the place is made safe one has total disregard for the activities which go on in the place itself. The safety of the place depends not simply on the construction of the floor or the solidity of the walls, but it also depends in some degree upon the nature of the operations carried on therein. In so far as there is permanent equipment in the place, then its safety can in my judgment reflect on the safety of the place. In so far as there are activities carried on in the place which are constant, regular and recurring, I can well see that they may have their impact on the question of whether the place has been made safe.”

In Evans v Sant, even this relaxed or “middle” approach did not enable the prosecution to succeed. The facts were that, in the course of laying a water-main, a test-head was attached between the pipe and a pump to test the water pressure, but it was insecurely fitted and, as pressure built up, it blew off, causing the death of a workman who ran into the path of a passing car. In allowing the defendant’s appeal against conviction, Widgery CJ said, at p 636, that:

“where, as in the present case, you start with a place safe in every degree, and the only thing which renders it unsafe is the fact that equipment brought upon it for a particular operation, and being used for a particular operation on a particular day, produces an element of danger, it seems to me that that is not enough to justify the allegation, certainly in criminal proceedings, that the place itself has not been made safe.”

In Homer v Sandwell Castings Ltd, a civil claim failed because the danger “did not arise from any static condition of the place of work, but arose from the operation upon which the plaintiff was engaged” (p 320, per Russell LJ). The employee had noticed a slight leak through sand paste, which he had himself introduced to seal a gap, but had carried on working, with the result that an eruption of molten metal through the seal fell onto his foot.

The appellants support their case on section 29(1) by reference to the layout as well as other specific sections of the 1961 Act. These, they submit, are only consistent with a limited interpretation, confining it to physical dangers inherent in the structure. They point out that section 55 addresses “any process or work carried on” or to be carried on in any premises used or intended to be used as a factory; it gives a magistrates’ court power, if satisfied that such process or work “cannot be so carried on with due regard to the safety, health and welfare of the persons employed”, to prohibit the use of the premises for that process or work. They also point to various other sections designed to address problems arising from operations carried on in premises. For example section 4 requires suitable and effective provision for circulation of fresh air, and “for rendering harmless, so far as practicable, all such fumes, dust and other impurities generated in the course of any process or work carried on in the factory as may be injurious to health”; section 14 requires (with immaterial exceptions) “Every dangerous part of any machinery … [to] be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced”; and section 27 requires all parts and working gear to “be of good construction, sound material, adequate strength and free from patent defect, and … properly maintained”.

However, the sections of the Act are not exclusive codes in relation to their particular subject matters (see e.g. Liptrot v British Railways Board [1969] 1 AC 136), and it is not axiomatic that there cannot be overlap between the application of two different sections. It seems to me good sense to describe a workplace as unsafe, if operations constantly and regularly carried on in it make it so. It is unnecessary to comment on the decisions on particular facts, but section 29(1) cannot in my opinion have a narrower meaning than that given it in Evans v Sant and the later cases following Evans v Sant. To take another example, a place may well, as it seems to me, be unsafe by reason of activities carried on in it, e.g. if a shop-floor were to be constantly crossed by fork-lift trucks passing from a store on one side to somewhere else on the other side of it. In the present case, the noise generated by knitting and other machines was a permanent feature of the operations which were intrinsic to the workplace. If the section is directed to noise at all, then such noise must, on the approach taken in Evans v Sant, make the place unsafe. It is unnecessary to say more on the facts of this case.

(ii)        Lack of safety arising from noise

The second issue is whether section 29 is directed to noise. This is more open to question. There is much to suggest that noise was not in the legislature’s mind at all, when section 26(1) of the 1937 Act was expanded to cover the safety of the workplace in 1959 and later re-enacted as section 29(1) of the 1961 Act. Further, the relevant noise is not noise of a literally deafening nature, causing immediate injury. It is noise which would only injure some people and then only if they were exposed to it for continuous periods lasting many years. The appellants submit that a requirement that the workplace “be made and kept safe for any person working there” is inapt to cover a situation where many or all of the persons working there may never be at any risk, because they have not been there long enough and may never be, or because they may not be susceptible to suffering such noise-induced hearing loss.

The appellants further submit that the fact that the principal protective measure suggested consists in the provision of ear protectors, rather than any corrective measures affecting the workplace itself or any regular feature of it, indicates or suggests that section 29(1) is inapplicable. I am not impressed by this point. If a workplace can be unsafe for employees by reason of constant and regular activities carried on at it, I do not see why it should not be rendered safe by counter-acting measures of an equally constant and regular nature relating to the clothes or equipment worn by employees.

On the other hand, the scheme of the 1961 Act does indicate that, even though section 29(1) is to be read as indicated in Evans v Sant, it is essentially dealing with safety, rather than health. Safety typically covers accidents. Health covers longer-term and more insidious disease, infirmity or injury to well-being suffered by an employee. Hearing loss, at least of the nature presently in issue, falls most naturally into this latter category. The 1961 Act is divided into Parts, the first four being headed (I) Health (General Provisions), (II) Safety (General Provisions), (III) Welfare (General Provisions) and (IV) Health, Safety and Welfare (Special Provisions and Regulations). Part I comprising sections 1 to 11 deals with cleanliness, overcrowding, temperature, ventilation, lighting, drainage of floors, sanitary conveniences, and enforcement powers; while Part II contains, in addition to section 29, a wide variety of sections covering inter alia machinery, dangerous substances, hoists, lifts, openings and doorways, chains, ropes, lifting apparatus, floors, passages and stairs, fumes and lack of oxygen in confined spaces, explosive or inflammable dust, vapour or substance, boilers, means of escape and fire. The general distinction between health and safety provisions was also present in the 1937 Act, and significance was attached to it in Clifford v Charles H Challen & Son Ltd [1951] 1 KB 495, 498, per Denning LJ and Ebbs v James Whitson & Co Ltd [1952] 2 QB 877, 886, per Hodson LJ.

As to the legislative mind-set in 1959 and 1961, the government promoting the 1959 Act made no mention of noise. The only relevant reference to noise by any MP in debate concerned the possibility that the minister might take advice on and look more closely at noise, with a view to making regulations under section 60 of the 1937 Act as amended (later section 76 of the 1961 Act), enabling the minister to make regulations where satisfied that, inter alia, any process was “of such a nature as to cause risk of bodily injury”. Likewise, when the Offices, Shops and Railways Premises Bill came before Parliament in November 1962 and March 1963, comments were made on the absence of any provision dealing with noise. Initially, the minister directed attention to the general power to make regulations for securing health and safety, but ultimately section 21 was included, specifically permitting regulations to protect “from risks of bodily injury or injury to health arising from noise or vibrations”. The minister in the House of Lords commented on section 21: “This is a new subject, on which we still have much to learn” (House of Commons, 2nd reading, 15 November 1962, Hansard cols 615, 618-619 and House of Lords 2nd reading, 18 March 1963, Hansard, col 948).

It was not until April 1960 that Sir Alan Wilson’s committee was set up to report on noise, and only in March and July 1963 that it issued interim and final reports. The main focus was on ambient noise and, in discussing the general effects of noise in chapter II, the report said, in relation to noise in a working environment, merely that “it may disturb concentration, and perhaps affect the efficiency of someone working at a difficult or skilful task; it may affect personal safety”. In outlining the law relating to noise in chapter III, the report identified the common law of nuisance and the Noise Abatement Act 1960. However, chapter XIII addressed occupational exposure to high levels of noise. It noted that it had been established that “a permanent reduction of hearing sensitivity can occur in people who are exposed for long periods to noisy environments, such as are found in some industries” (para 513). But it made clear the understanding that there was no existing legislation applicable to such noise and no sufficient basis for introducing any without further research. It said (para 534):

“Although voluntary action is now possible and, indeed, essential, we do not consider that the present knowledge of this complex problem provides a sufficient basis for legislation. Although the levels of continuous, broadband noise which represent a hazard to the hearing of people who are exposed to them for long, unbroken periods have been established within certain margins of error, many uncertainties remain. There is no satisfactory means of predicting the susceptibility of individuals to hearing loss, nor is the distribution of susceptibility known; the comparative danger of noises in which energy is concentrated in narrow frequency bands is not determined; nor is the influence on hearing loss of impulsive noises, which are common in industry. Neither is there much information on the physical properties of industrial noise, the distribution of noise of any given type in industry and the practicability of minimising those properties which are found to be dangerous to hearing. If early legislation were introduced it could do no more than lay down general standards, the effect and cost of which cannot at present be estimated. If the standards adopted proved to be too severe in some respects the industries affected might be exposed to heavy unnecessary expenditure; on the other hand if minimum standards were adopted, these would tend to suggest that compliance with these standards was all that was needed even in parts of industry where there were important hazards at lower sound pressure levels or with shorter exposure. Legislative insistence on the wearing of ear protectors would be particularly difficult to introduce until there is a wider recognition of the need for them in noisy industries. Early legislation would, therefore, have to be very general in its terms and it would be impossible to enforce effectively. We think that, at present, it would not achieve as much as vigorous voluntary action. In our view, before practical legislation could be considered, it would be necessary to establish the extent of the risk to average people of exposure to industrial noise, and the cost and possibility of measures which would effectively reduce this risk to the point which, on balance, was regarded as acceptable.”

In paras 535-536, the report suggested a further research programme, to be followed by more detailed surveys of individual industries and processes, and then, when the results of such surveys were available, consideration by government “whether the time has not then come to lay down by legislation minimum standards to protect workers against damaging noise exposure in industry”.

The Annual Report of HM Chief Inspector of Factories on Industrial Health for 1965 (Cmnd. 3081) also stated at p 79 that

“At present there is no legislation requiring the control of noise in factories, nor is occupational deafness prescribed under the National Insurance (Industrial Injuries) Act 1965. The problem was examined in detail by the Wilson Committee, whose report was published in 1963. They concluded that the knowledge then existing was insufficient to enable legislation to be made. They advocated research and indicated some of the lines this should take. At present a very great deal of research is being conducted by various bodies.…”

The Report of a Committee chaired by Lord Robens in 1970-72 (Cmnd 5034) referred to the Wilson Committee’s words (para 341), but went on to record the research recorded in Prof Burns’s and Dr Robinson’s 1970 report, Hearing and Noise in Industry. The research had “established a system of predicting on a statistical basis the hearing deterioration to be expected for specified exposures within a wide range of industrial noise” and the report had “amongst other things … suggested that workers should not be consistently exposed over long periods to a noise emission level higher than 90dB(A)” (para 342). Robens then mentioned that industrial noise had now become a live issue in the field of compensation claims, referring to a case where “a court awarded damages for the first time” (para 344). This must have been Berry v Stone Manganese and Marine Ltd [1972] 1 Lloyd’s Rep 182, where a claim for common law negligence succeeded in respect of noise which “amounted to about 115 to 120 decibels, whereas the … tolerable noise is about 90” and no ear muffs had been provided (p 184). A claim under section 29(1) was in fact also introduced by amendment at trial. It was not argued on the basis of failure to provide ear muffs, but of alleged failure to reduce the actual noise level as far as reasonably practicable, and it failed on the facts. Robens continued that, since “the relationship between exposure to certain levels of noise and hearing loss [was] now recognised” the time was “ripe to include basic requirements on noise control in occupational safety and health legislation” (para 345).

Lord Robens’s recommendation stimulated the inclusion of regulation 44 in the Woodworking Machines Regulations 1974 (SI 1974/903) made under section 76 of the 1961 Act. In relation to factories using woodworking machines, regulation 44 requires that, “where on any day any person employed is likely to be exposed continuously for eight hours to a sound level of 90dB(A)” or equivalent or greater, then “(i) such measures as are reasonably practicable shall be taken to reduce noise to the greatest extent which is reasonably practicable; and (ii) suitable ear protectors shall be provided and made readily available for the use of every such person”. Later in 1974, there were also made, under agricultural health and safety legislation, the Agriculture (Tractor Cabs) Regulations 1974 (SI 1974/2034), regulation 3(3) of which provided that ministerial approval of safety cabs required ministers to be satisfied that the noise levels inside “would not be more than 90dB(A)”. The existence of specific regulations under section 76 is not necessarily inconsistent with a more general duty of safety existing in respect of noise under section 29(1), though the inter-relationship could give rise to problems and one might have expected or at least hoped that it would be clarified.

HM Chief Inspector of Factories’ report for 1974 (Cmnd 6322) referred to the Woodworking Machines Regulations 1974 as “the first British regulations to contain a legal requirement specifically intended to protect factory workers against the effects of noise” (p 73). Under the heading of Noise and Vibration, it also noted (p 71) that

“The Inspectorate has been mainly concerned with protection of workers against levels of noise exposure likely to cause permanent hearing damage. To this end continuing efforts have been made to encourage voluntary compliance with the Code of Practice …, which recommends that where people are likely to be exposed to sound levels over 90dB(A) for eight hours per day (or to suffer an equivalent exposure) action should be taken to reduce the noise exposure, and ensure that ear protection is provided and used”.

The position is therefore that section 29(1) is part of the statutory provisions dealing with safety, and it was enacted without any appreciation that it could cover noise or noise-induced hearing loss. Noise-induced hearing loss was not a newly discovered phenomenon, at least in heavy industry, where it was evidently regarded as an inescapable fact of life (see e.g. Thompson, p 409A, per Mustill J). An immediately injuring noise (like that which punctured the Duke of Wellington’s ear-drum when he stood too close to the firing of a battery in his honour) could probably only occur as a result of some one-off error or break-down in the workplace, which would not reflect on its safety, although it could give rise to common law liability in negligence. None of the contemporary reports or documents suggests that the possibility of noise was in anyone’s mind or would have been conceived of as an element of safety of the workplace in 1959 or 1961. It follows that there is considerable force in the appellants’ submission that section 29(1) does not refer to safety in a sense depending not upon the current condition of the workplace with its noisy machinery, but upon the periods for which employees have worked, or are likely to continue to work in that, or another, workplace with equivalent or greater noise levels and upon their particular susceptibility to noise. Ultimately, however, I have come to the conclusion that it is not possible to be so categorical, and that the answer to the present issue links up with the next issue, that is how far responsibility under section 29(1) is absolute or relative. If section 29(1) imposes absolute liability, irrespective in particular of current attitudes or standards from time to time, then noise-induced loss appears so far outside the thinking behind and aim of section 29(1) that I doubt whether it would be right to construe the section as covering it. But if liability under section 29(1) is relative, depending in particular on knowledge about and attitudes to safety from time to time, then, as thinking develops, the safety of a workplace may embrace matters which were previously disregarded, but have now become central or relevant to reasonable employers’ and employees’ view of safety.

(iii)       The absolute or relative nature of safety

The third issue is whether the requirements regarding safety in section 29(1) are absolute or relative. In the respondent’s submission, they are absolute: what is safe is objective, unchanging and independent of any foresight of injury; the only qualification on an employer’s liability, where a workplace is unsafe because of employees’ exposure to noise, is if the employer can show that it was not reasonably practicable to reduce or avoid the exposure, e.g. by providing ear protectors. The House of Lords, by a majority, held in Nimmo v Alexander Cowan & Sons Ltd [1968] AC 107 that the onus lies on the employer to plead and prove under section 29(1) that it was not reasonably practicable to make and keep a place safe.

Smith LJ accepted the submission that safety is an absolute. She said that “what is objectively unsafe cannot change with time” (para 78). She also associated lack of safety with the occurrence of injury to a single person, for she continued:

“If 85dB(A)lepd causes deafness to a particular claimant, that claimant’s place of work was not safe for him or her. It might have been safe for another person working alongside. But for the susceptible worker who has in fact been damaged, it can be demonstrated, without more, that his or her place of work was not safe. Looking at matters from the point of view of the work force generally, it is known that a minority of people will suffer appreciable harm as the result of prolonged exposure to 85dB(A)lepd. Therefore, it can be said that the place of work is not safe for the workforce because there is a risk of injury to all of them.”

I do not accept this approach. Whether a place is safe involves a judgment, one which is objectively assessed of course, but by reference to the knowledge and standards of the time. There is no such thing as an unchanging concept of safety. The Court of Appeal’s approach means in reality that any court determining an issue of safety would be applying (retrospectively) whatever happened to be the view of safety current at the time the matter came before it. Further, the fact that a single person has suffered injury due to some feature of the workplace is not, without more, proof that the workplace was unsafe. As Lord Upjohn (one of the majority) said in Nimmo (p 126C-D), “the section requires the occupier to make it [the workplace] 100 per cent safe (judged of course by a reasonable standard of care) if that is reasonably practicable and, if it is not, to make it as safe so far as is reasonably practicable to a lower percentage”.

Prior to the 1959 and 1961 Acts, the requirement, under regulation 5 of the Building (Safety, Health and Welfare) Regulations 1948 (SI 1948/1145), that “sufficient safe means of access shall so far as is reasonably practicable be provided”, had been considered in Sheppey v Matthew T Shaw & Co Ltd [1952] 1 TLR 1272 and Trott v WE Smith (Erectors) Ltd [1957] 1 WLR 1154 (CA). There it was said, by respectively Parker J at p 1274 and Jenkins LJ at p 1159, that safe cannot mean “absolutely safe”, although it must take account of circumstances likely to occur, including the fact that employees do not always behave with reasonable care for their own safety. I also note that in Trott, Jenkins LJ after suggesting that the statutory obligation was stricter than the general duty of reasonable care at common law and anticipating Nimmo by identifying the qualification “so far as is reasonably practicable” as involving a shift of the burden of proof (pp 1158-59), ended his judgment by saying that to regard the standard of care prescribed by regulation 5 and at common law as approximating to each other was “if not absolutely right …. at all events not very far wrong” (p 1162). Likewise, in relation to a similar requirement under the Shipbuilding and Ship-repairing Regulations 1960 (SI 1960/1932), it was argued in Paramor v Dover Harbour Board [1967] 2 Lloyd’s Rep 107 “that if the bare possibility of injury and accident could reasonably be foreseen, then the means of access is not ‘safe'”. In response, Salmon LJ said (p 109) that there “is, of course, a risk of injury and accident inherent in every human operation” but that whether a means of access was safe involved “assessing the risk in all the circumstances of the case” and “must be a question of fact and degree in each case”.

The successor legislation to the 1961 Act, the Health and Safety at Work Act etc 1974 was differently, and on its face more broadly, formulated. It required every employer by section 2(1) to ensure, so far as is reasonably practicable, the health, safety and welfare of all his employees, and by section 3(1) to conduct his undertaking in such a way that other persons were not thereby exposed to risks to their health or safety. The concept of safety was considered in this context in R v Chargot Ltd (trading as Contract Services) [2008] UKHL 73 [2009] 1 WLR 1. Lord Hope, with whose speech all other members of the House agreed, said that the legislation was “not contemplating risks that are trivial or fanciful”, that the statutory framework was “intended to be a constructive one, not excessively burdensome”, that the law “does not aim to create an environment that is entirely risk free” and that the word “risk” which the statute uses “is directed at situations where there is a material risk to health and safety, which any reasonable person would appreciate and take steps to guard against” (para 27).

It would be strange if the earlier, narrower formulation in section 29(1) had a more stringent effect. Similar comments to Lord Hope’s had also been made in the earlier case of R (Junttan Oy) v Bristol Magistrates’ Court [2003] UKHL 55; [2003] ICR 1475, in relation to regulations requiring machinery to be in fact safe, “safe” being defined to mean giving rise to “no risk (apart from one reduced to a minimum) of its endangering the health of or of its being the cause or occasion of death or injury to persons”. Lords Nicholls and Hobhouse (both dissenting on presently immaterial points) made clear in that context that “safe” is not an absolute standard. Lord Nicholls said (para 22): “There may be differences of view on whether the degree of safety of a particular piece of machinery is acceptable”. Lord Hobhouse said (para 103) that:

“to describe questions of safety as simple questions of fact, just as if one was asking whether a given bird is a sparrow or a sparrowhawk, is to make a fundamental and elementary mistake. Safety is a question of opinion. There is no such thing as absolute safety. All safety is relative. Two men can legitimately hold different opinions [as to] whether a machine is safe or unsafe. Different assessments can be and are made of the safety of a particular machine by the authorities in different countries”.

If safety is a relative concept, then foreseeability must play a part in determining whether a place is or was safe. Mr Hendy submits that foresight has no such role; it can come in, if at all, only at the second stage, when considering whether it was reasonably practicable to make and keep the place safe. He also notes that there was in any event, on the judge’s findings, foresight in the present case of some statistical risk of injury. On the role of foresight, there are differing strands of authority. Not long before the 1959 Act, the House had in John Summers & Sons Ltd v Frost [1955] AC 740 considered the requirement under section 14(1) of the 1937 Act that “Every dangerous part of any machinery … shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced”, and had applied to the concept of dangerousness an approach dating back to Hindle v Birtwhistle [1897] 1 QB 192, namely that a machine or part is dangerous “if in the ordinary course of human affairs danger may reasonably be anticipated from the use of them without protection”, and that it was “impossible to say that because an accident had happened once therefore the machine was dangerous”. Lords Reid and Keith at pp 765-766 and 774 expressly endorsed the relevance of determining whether the degree of danger was such that there was “a reasonably foreseeable cause of injury”.

The same approach, again based on Hindle v Birtwhistle, was followed under section 14 in Close v Steel Co of Wales Ltd [1962] AC 367. The claim there failed because “in the ordinary course of human affairs danger could not reasonably be anticipated from the use of the drill unfenced” (p 382, per Lord Denning, with whom Lord Morton agreed on this point at p 398); “the risk of injury, serious and regrettable as it proved to be, was not reasonably foreseeable” (p 389, per Lord Goddard); and “No reasonable employer could have been expected to anticipate any risk of significant injury” (p 412, per Lord Guest).

Close proved controversial on another, presently irrelevant, aspect (whether the duty to fence extended to preventing fragments flying out of a machine) on which it was criticised in paragraph 7 of Appendix 7 to the Robens Report. But the endorsement in Close of the concept of foreseeability taken from Hindle v Birtwhistle was noted without criticism in paragraph 5 of Appendix 7 to the Robens Report and was regarded as correct by contemporaneous commentators in The Solicitors’ Journal (The Duty to fence dangerous machinery: (1961) 105 Sol J 997) and The Modern Law Review (New Wave of Interpretation of the Factories Acts: (1962) 25 MLR 98, commending “the broad common-sense view of danger” taken in Hindle v Birtwhistle), though it was regretted by John Munkman, writing in The Law Journal (The Fencing of Machinery: (1962) LJ 761).

The concept of foreseeability continued to be adopted by courts, most notably, in Taylor v Coalite Oils & Chemicals Ltd (1967) 3 KIR 315. In Allen v Avon Rubber Co Ltd [1986] ICR 695, the Court of Appeal also endorsed it under section 29(1) of the 1961 Act. In Taylor, Diplock LJ said, obiter (pp 319-320):

“‘Safe’ is the converse of ‘dangerous’. A working place is ‘safe’ if there is nothing there which might be a reasonably foreseeable cause of injury to anyone working there, acting in a way in which a human being may reasonably be expected to act, in circumstances which may reasonably be expected to occur: see John Summers & Sons Ltd v Frost [1955] AC 740, per Lord Reid at p 766. In determining, therefore, whether the occupier was under a duty to take any measures to prevent an accident which was caused by the presence at a working place of a particular object, it is necessary to ask, first, whether the possibility of an object of that kind being at that particular place was reasonably foreseeable, and, if so, secondly, whether it was reasonably foreseeable that it would be a cause of injury to a person working there. It is only if both those questions are answered affirmatively that it becomes necessary to consider whether it was ‘reasonably practicable’ to avert the danger.”

More recently, in Robb v Salamis (M & I) Ltd [2006] UKHL 56; [2007] ICR 175, Lord Hope confirmed the relevance of reasonable foreseeability to article 5(1) of the Framework Directive 89/391/EEC (imposing on employers the duty to ensure the safety and health of workers in every aspect related to the work) and article 3(1) of the Work Equipment Directive 89/655/EEC (requiring employers to take the measures necessary to ensure that the work equipment made available to workers is suitable for the work to be carried out), stating that “The obligation is to anticipate situations which may give rise to accidents” (para 24).

The respondent relies on a different stream of authority, consisting of Robertson v RB Cowe & Co 1970 SLT 122, Larner v British Steel plc [1993] ICR 551, Neill v Greater Glasgow Health Board [1994] SLR 673, [1996] SC 185 and Mains v Uniroyal Englebert Tyres Ltd [1995] SC 518. The Court of Appeal in the present case held that it was bound by Larner, as well as expressing agreement with it.

Robertson concerned a trestle erected on a marine slipway which moved causing a workman to fall. Lord Guthrie concluded “from the whole circumstances elicited … as to the position of the staging, the way in which the pursuer worked, the outward movement of the trestle, and where the pursuer fell” that “on a balance of probabilities … the erection was insecure and unsafe” (p 129). Lord Migdale treated the fact that the trestle fell over as proof that it was not safe, and both he and, with hesitation, Lord President Clyde concluded that the decision in Nimmo meant that breach of section 29(1) was established once it was proved that the trestle was not sufficiently stable to support a workman doing his job there normally. There was no plea that it was not reasonably practicable to make or keep the trestle safe, and Lord Guthrie noted the obvious difficulty that such a plea would have faced. Lords Guthrie and Migdale rejected a submission based on the line of authority including John Summers and Close, that the employee had to prove that the accident was reasonably foreseeable. The basic issue was whether the trestle was insecure as erected, or whether it fell because the pursuer over-reached (pp 128-129).

Larner concerned an undetected crack which caused a structure to fall on the plaintiff. The Court of Appeal preferred the reasoning in Robertson to Diplock LJ’s dicta in Taylor and rejected foreseeability as a test of safety. In Mains the injury arose when a piece of machinery made an involuntary and unexpected movement, the cause of which was never ascertained, and so trapped the workman’s hand; and it was common ground that the circumstances of the accident and its cause were not reasonably foreseeable. The Inner House took the same view as in, and followed, Larner.

In so far as Robertson, Larner and Mains stand for a proposition accepted by the Court of Appeal in the present case, that safety is an eternal absolute independent of any judgment based on current standards and attitudes, then I do not accept their correctness. One factor in the decisions in both Larner and Robertson was that the introduction of foreseeability would reduce the “utility of the section”, by frequently limiting success under it to circumstances in which a common law claim for negligence would succeed (Larner, p 560A, per Hirst LJ, and p 562C-D, per Peter Gibson J; Mains, p 531D-E, per Lord Sutherland and p 535G-H and 536H-537B, per Lord Johnston). This begs the question as to the intended scope and effect of the section. Not only does the section introduce criminal sanctions, but, as established in Nimmo, if the workplace is unsafe, then the burden shifts to the employer to show that it was not reasonably practicable to make and keep it safe. It was in this connection that in Nimmo Lord Guest said that he could “not think that the section was intended to place such a limited obligation on employers” as they would have at common law (where it would be for an injured employee to plead and prove failure to take reasonably practicable steps) (p 122F-G), and that Lord Upjohn (whose view that safety is “judged of course by a reasonable standard” I have already quoted in paragraph 64 above) added that “it is not in doubt that the whole object of the Factories Act is to reinforce the common law obligation of the employer to take care for the safety of his workmen” (p 125B).

Further, section 29(1) imposes a non-delegable duty, so that an employer is responsible for achieving or for the taking all reasonably practicable measures to achieve the requisite safety irrespective of whether he chooses to set about doing this through himself, his servants or independent contractors.

There is nothing to show that section 29(1) was intended to go further, and there is no assumption (or, in my opinion, likelihood) that it was intended to. The standard of reasonableness expressed in the qualification “so far as is reasonably practicable” (in respect of which the onus of proof is on the employer) makes it more, rather than less, likely in my view that the concept of safety is itself to be judged, as Lord Upjohn thought obvious in Nimmo, by reference to what would, according to the knowledge and standards of the relevant time, have been regarded as safe (see further paragraph 79 et seq. below).

Peter Gibson J (at p 562G-H) regarded it as surprising that the approach in John Summers, based on section 14(1) of the 1937 Act containing no qualification of reasonable practicability, should have been regarded as relevant under section 29(1) of the 1961 Act which does contain such a qualification. The same point was made in Mains (pp 527A-D and 531D-F, per Lord Sutherland and p 536A, per Lord Johnston). But there was authority pre-dating 1959 which took the same approach to safety where there was such a qualification: see Sheppey v Matthew T Shaw & Co Ltd and Trott v W E Smith (Erectors) Ltd (para 65 above). The force of the point depends in any event upon the effect of the qualification. In Mains it was contemplated that the qualification might enable a defender to “say it was not reasonably practicable to make this place safe, because this particular mishap was not reasonably foreseeable” (p 527C-D, per Lord Sutherland) and that “The unforeseeable accident occurring in an unforeseeable way may well give the defenders a defence under the qualification” (p 637E, per Lord Johnston). Likewise, in the present case the Court of Appeal considered “as a matter of common sense” that “if, the employer does not know of the risk and cannot reasonably have been expected to know of it, it cannot be reasonably practicable for him to take any steps at all” (paras 83 and 91). On that basis, foresight can be very relevant under section 29(1). But, if this is so, then section 29(1) is to that extent merely shifting the onus of proof, which weakens the argument that it must be seen as departing substantially from conceptions of common law negligence.

In summary, safety must, in my view, be judged according to the general knowledge and standards of the times. The onus is on the employee to show that the workplace was unsafe in this basic sense.

(iv) Reasonably practicable

Since it took the view that safety is absolute and unchanging, the Court of Appeal had to consider whether the qualification “so far as is reasonably practicable” enabled the employers to exonerate themselves by showing that reasonable employers would not have considered that there was cause to reduce noise exposure in the workplace below 90dB(A). The Court of Appeal held that the qualification gave no scope for such a defence. It said (para 89):

“Under the statute, the employer must first consider whether the employee’s place of work is safe. If the place of work is not safe (even though the danger is not of grave injury or the risk very likely to occur) the employer’s duty is to do what is reasonably practicable to eliminate it. Thus, once any risk has been identified, the approach must be to ask whether it is practicable to eliminate it and then, if it is, to consider whether, in the light of the quantum of the risk and the cost and difficulty of the steps to be taken to eliminate it, the employer can show that the cost and difficulty of the steps substantially outweigh the quantum of risk involved. I cannot see how or where the concept of an acceptable risk comes into the equation or balancing exercise. I cannot see why the fact that a responsible or official body has suggested that a particular level of risk is ‘acceptable’ should be relevant to what is reasonably practicable. In that respect, it appears to me that there is a significant difference between common law liability where a risk might reasonably be regarded as acceptable and statutory liability where the duty is to avoid any risk within the limits of reasonable practicability.”

Smith LJ reiterated the point at the end of para 100, when rejecting the relevance of the Code of Practice to the question whether it was reasonably practicable to provide protection.

In the light of my conclusion that safety is a relative concept, the correctness of these passages does not strictly arise for consideration in this case. Had it arisen, I would have regarded the qualification as wide enough to allow current general knowledge and standards to be taken into account. Even the Court of Appeal in its formulation acknowledged the quantum of risk involved as material in the balancing exercise. But this can only mean that some degree of risk may be acceptable, and what degree can only depend on current standards. The criteria relevant to reasonable practicability must on any view very largely reflect the criteria relevant to satisfaction of the common law duty to take care. Both require consideration of the nature, gravity and imminence of the risk and its consequences, as well as of the nature and proportionality of the steps by which it might be addressed, and a balancing of the one against the other. Respectable general practice is no more than a factor, having more or less weight according to the circumstances, which may, on any view at common law, guide the court when performing this balancing exercise: see Swanwick and Mustill JJ’s statements of principle, set out earlier in this judgment, and also Charlesworth on Negligence (12th ed) (2010), chapter 7, The Standard of Care, both generally and especially at para 7.38. It would be strange if the Court of Appeal was right in suggesting that, under the statutory formulation, this one factor is irrelevant, when the whole aim of the balancing exercise must, in reality, be to identify what is or is not acceptable at a particular time.

That the qualification “so far as may be reasonably practicable” may, if necessary, receive a broad interpretation is also indicated by the reasoning of the House in Marshall v Gotham Co Ltd [1954] AC 360. Under the Metalliferous Mines General Regulations 1938 (SR & O No 630) the roof and sides of every travelling road in a mine were required to be made secure. An employee was killed by a fall of roof, due to the presence of an unusual geological condition known as “slickenside”, which there was no known means of detecting prior to a fall. It was argued that the mine-owner could have propped all roofs, and that “reasonably practicable” meant no more than “practicable” (p 364). The argument was rejected. Lord Oaksey at p 370 agreed with Jenkins LJ’s statement, [1953] 1 WB 167, 179, that what “is ‘reasonably practicable’ in this context is no more nor less than what is capable of being done to make roofs and sides secure within the limits of what it is reasonable to do; and it cannot be reasonable to do for this purpose anything more than that which it appears necessary and sufficient to do according to the best assessment of what is necessary and sufficient that can be made at the relevant time, that is, in the present instance a point of time immediately prior to the accident”. Lord Reid at p 373 said that “if a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable” and took into account that the danger was a very rare one, that the trouble and expense involved in the use of the precautions, while not prohibitive, would have been considerable, that the precautions would not have afforded anything like complete protection against the danger, and that their adoption would have had the disadvantage of giving a false sense of security. Lord Keith considered at p 378 that there was “no general rule or test that can safely be relied on for measuring the discharge of such a duty”, but that he “could not, as at present advised, accept … that the measure of an employer’s liability can satisfactorily be determined by having regard solely to the proportion which the risk to be apprehended bears to the sacrifice in money, time or trouble involved in meeting the risk”. Lord Tucker (with whom Lord Cohen agreed at p 377) said at pp 374-375 “that the word ‘secure’ does not involve security from the effects of earthquake or an atom bomb”, but added that “it must include security from all the known geological hazards inherent in mining operations”. At p 376 he echoed the list of factors which Lord Reid had identified in support of his conclusion that the precautions were not reasonably practicable.

A further aspect of para 84 in Smith LJ’s judgment is the suggestion that “there must be at least a substantial disproportion” before the desirability of taking precautions can be outweighed by other considerations. This theme was developed in paras 82 to 84 of her judgment, on the basis of dicta in two cases prior to Marshall v Gotham. But it represents, in my view, an unjustified gloss on statutory wording which requires the employer simply to show that he did all that was reasonably practicable.

In deciding the appeal in favour of the respondent, the Court of Appeal relied upon HHJ Inglis’s estimation of the quantum of risk below 90dB(A). HHJ Inglis said that

“the description given to the risk to hearing of exposure below 85dB(A) … as ‘minimal’ is one that I accept and adopt. Above 85dB(A) the risk accelerates up to 90dB(A). In the high 80s, given long enough exposure, significant hearing loss may be expected in at least a substantial minority of individuals.”

On that basis, Smith LJ said that, assuming (as she did) that the employers well knew that some of their workforce stayed in their employment over many years, they would, if they had asked a suitably qualified expert, have received advice conveying to them that a substantial minority of their workforce in the relevant departments were likely to suffer significant hearing loss, and could not then have hoped “to establish that the burden of providing ear protectors was substantially disproportionate to the quantum of risk to their employees” (para 98). Advice of this nature as to the quantum of the risk should have been received by late 1976 or early 1977 (para 101). To this, Smith LJ added six to nine months, for reasons already discussed, putting Quantum in breach of its statutory duty under section 29(1) from 1 January 1978.

Neither Quantum nor any other of the employers before the court exposed their workforce to noise levels in the “high 80s”. The exposure found was in the case of Mrs Baker to levels of 86dB(A). As I have already stated, every 3dB(A) represents a doubling of the sound pressure level of the energy involved in the noise, even though it will not be appreciated as such by the hearer. More importantly, the approach taken by the Court of Appeal requires employers to take expert advice and to identify the quantum of risk in circumstances in which current standards and thinking did not expect any such steps. And if risks which are not currently regarded by responsible employers as calling for any action are required to be addressed, then, despite Smith LJ’s references to the balancing of the quantum of risk against other factors, any employer who was or should have been aware of any risk at all greater than de minimis would be obliged to address it unless the trouble and cost involved were prohibitive.

This is highlighted by consideration of the arguments which can be made if one has regard simply to the statistical tables in BS 5330: 1976 upon which the respondent and the Court of Appeal have relied to show the risk attaching at levels of exposure between 85 and 90dB(A) lepd: see para 31 above. The respondent, as I understand, accepts that the logic of her case is that the risks below 85dB(A) cannot and should not have been regarded as immaterial. But this highlights how independent her case on section 29(1) is of contemporary standards of behaviour or thought. Only since 2005 have employers been obliged to require ear protectors to be worn by workers exposed to 85dB(A) and obliged to make them available on request to workers exposed to 80dB(A) (see para 14 of the Court of Appeal’s judgment, quoted in para 15, above).

There is nothing in the history of section 29(1) or the mischief to which it was addressed to suggest that the legislature in 1959 or 1961 intended in this way to detach the penal liability which it then introduced in respect of the workplace from the ordinary understanding of reasonable employers. Contrary to the Court of Appeal’s view, I consider that HHJ Inglis was correct in the approach he took to section 29(1), which followed that taken by Rose J in Fazakerley.

Conclusion

I would allow the appellants’ appeals both at common law and under section 29(1). At common law, Quantum, and other employers in a similar position such as Guy Warwick, were not in breach of their duty of care or of their duty under section 29(1) in not implementing measures to protect their employees in respect of noise exposure at levels below 90dB(A) prior to 1 January 1990. As regards Meridian and Pretty Polly, in reflection of the common ground between Lord Dyson, Lord Saville and myself (paragraphs 25 and 43 above), the appeal will be allowed by restoring the judge’s decision that they were in breach of duty in not having implemented such measures as from 1 January 1985.”

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O’Keeffe -v- Hickey

[2008] IESC 72

SC Hardiman J.

“……

Vicarious liability.

We have seen, above, that the plaintiff’s case was presented under three headings, the second of which related to vicarious liability alleged to exist for the criminal and plainly unauthorised acts of the first-named defendant, but also for the alleged negligence of the curate Fr. O’Ceallaigh who was the de facto acting manager in respect of his alleged failure to take any step on foot of a complaint made to him of a similar nature, in relation to another child, in 1971. This is the only remaining claim.

The principles of vicarious liability are stated as follows in chapter 43 of the Law of Torts by McMahon and Binchy, 3rd Edition, (Dublin, 2000) at p. 1091:-

“The law is sometimes prepared to hold one person liable for the wrong committed by another person even though the person held liable is not at fault in the accepted sense of the word. Thus, the law may hold the employer liable for the wrongs of an employee, the principal liable for the wrongs of an agent or the firm liable for the wrongs of its partner in spite of the fact that the employer, the principal or the firm may not have been at fault in any way. When the law imposes liability in these circumstances we speak of an employer, principal or firm being ‘vicariously liable’.”

The generally accepted basis on which vicarious liability is imposed has come to be known as “the Salmond test” after the distinguished academic of that name. This may be expressed as follows:

“An employee’s wrongful conduct must, to render the employer liable, fall within the course and scope of his or her employment. It will do this where it consists of either

(i)         Acts authorised by the employer or

(ii)        Unauthorised acts that are so connected to the acts that the employer has authorised that they may rightly be regarded as modes – although improper modes – of doing what has been authorised.”

In the following paragraph of their text book, McMahon and Binchy go on to endorse what they see as a new and more acceptable theory of vicarious liability, by comparison with an older and (to them) less satisfactory one in the following words:-

“Historically speaking this example of strict liability can be traced to earliest times although its modern form in England dates from the end of the seventeenth century. It survived the ‘no liability without fault’ era, to some extent as an anomaly, but nowadays with the trend towards no-fault concepts it can be sustained by more modern justifications such as risk creation and enterprise liability. In other words, the concept of vicarious liability has dovetailed nicely with the more modern ideas that the person who creates the risk, or the enterprise which benefits from the activity causing the damage, should bear the loss. Such persons or enterprises are in a good position to absorb and distribute the loss by price controls and through proper liability insurance. Liability in these cases should, it is felt, follow ‘the deep pocket’.”

I do not feel the unqualified enthusiasm which the learned authors evince for what they believe to be the modern theory of vicarious liability. The fact that a person or entity may have some resources (if only a private dwelling-house) does not in and of itself, in my opinion, convert him, her or it into a “deep pocket”. More fundamentally, even if the pocket is genuinely deep, that fact cannot in ordinary justice support the imposition of liability on such a person where it would not be imposed on a poorer person. And it is, with every respect, fatally easy for a writer in his study to dismiss another person as a “deep pocket” when that other is not such and does not so regard himself.

I do not consider that companies, institutions or even the State itself are necessarily to be considered in a different light than an individual. A finding of liability for perhaps veryserious or gross injuries is not a light thing and has an effect quite separate from its consequences in damages. The fact or risk of such a finding may have a “chilling effect” even on State, private or charitable initiatives and will certainly have an effect on the cost of insurance. Nor can public funds, contributed originally by individual tax payers, be regarded as a separate type of fund, infinite in extent and invulnerable to an extension of the grounds of liability. Firstly, these funds are in fact finite, secondly justice surely demands that they, like private or charitably held funds, should be paid out only in response to a genuine claim and not have to meet a situation in which the very existence of the funds is a factor tending to expose them to a new species of liability. Finally, I do not consider that the second quotation from McMahon and Binchy, above, is at all apt to describe the factual circumstances of this case. That extract, on the contrary, deals exclusively with commercial ventures. I am not to be taken as agreeing with it, even in the commercial context. But in the circumstances of this case it is, in my opinion, nonsensical to speak of “risk creation”. I do not accept that the State, in performing its constitutional duty to provide for free primary education is creating a risk: this is further discussed below. Nor do I consider that the State is to be equated to an “enterprise” which “benefits from” the provision of free primary education. In other words I consider that, even if a new species of vicarious liability should be introduced in a commercial context based on a theory (surely not a legal one) of “risk creation”, of which I am utterly unconvinced at present, it would not apply in (what it has become fashionable to call) the factual matrix of the present case.

In any event, the learned authors of the work cited go on to quote with unqualified enthusiasm the majority judgment in this Court in Moynihan v. Moynihan [1975] 1 I.R. 192 in support of the proposition, at p.1092, that:

“Other instances of vicarious liability can arise, where the law will hold one person liable for the wrongs of another even though no formal legal relationship exists between the parties in question. Indeed, it seems that in Ireland a person may be vicariously liable whenever he or she has sufficient control over the activities of another.”

……

It appears to me that the following observations can be made about tortious liability for an injury suffered by another:

(1)       Such liability has consequences beyond the obligation to pay a cash sum. It is salutary to remember that a tortfeasor – joint or single, is referred to in the Civil Liability Acts as a ‘wrongdoer’ and the stigmatisation of the paying party as such is, in my view, legally and morally a condition precedent to an order to compensate for one’s own act. (See Civil Liability Act 1961, s.2)

(2)       Apart from financial or reputational loss, the very possibility of tortious liability, and especially such liability on a strict or no-fault basis, constrains the legitimate actions of individuals, professions and other groups and even public authorities by what the American jurisprudence describes as a ‘chilling effect’. This, for instance, is said to have given rise to ‘defensive’ medicine and its equivalent in other fields.

(3)       Unpredictable liability in tort creates huge social and economic problems including that of correctly estimating one’s insurance needs and of sudden unpredicted liabilities occurring which may be very damaging to an individual group or corporation, whether State run or otherwise.

(4)       Vicarious liability is a form of strict liability which can be immensely burdensome on the party upon whom it is imposed. It cannot in my view justly occur at all except in a situation where the paying party said to be vicariously liable has a real and actually exercisable power of control, in the relevant area of behaviour, over the person for whom it is said to be vicariously liable.

The foregoing are observations on vicarious liability as it is known in Irish law at present. Broader aspects of this concept, such as what the learned authors cited above describe as “enterprise liability” or “risk creation liability” will be discussed separately. But it is worth noting that the eternal quest for a “deep pocket” which can be made liable not merely proceeds apace, but at an ever increasing pace: one learns through the internet of Australian litigation directed at demonstrating that the manufacturer of a mobile phone has a vicarious liability for injury caused by a driver who loses control of his vehicle while speaking on a mobile phone. And on the 22nd October, 2008, it is reported in the Irish Times that a Circuit Court judge in Cork predicted that if parents continued to sue for playground accidents, children would not be allowed to run or play in school yards.

Control.

By reason of the foregoing the first exercise which is to be carried out in deciding the present case is whether or not the Minister, the most directly involved of the State defendants, is in a relationship with the first-named defendant sufficient to make the Minister, and thereby the public purse, liable for his (Hickey’s) crimes and torts.

We have already seen, in the historical portion of this judgment, that the State involvement in the governance of national schools, for historical reasons, is indirect not to say oblique and general rather than particular. The role which the State might otherwise have occupied is, by their own urgent desire, occupied by the Churches and other voluntary bodies, in this case the Catholic Church.

For many years the common law world applied the test for vicarious liability taken from Salmond and Heuston’s work on torts in Salmond and Heuston on the Law of Torts (19th Edition., 1987) at pp. 521 to 522. This was applied in the Canadian case to be discussed below Bazley v. Curry [1999] 174 D.L.R. (4th) 45.

There, the rule is stated as follows:-

“An employee’s wrongful conduct is said to fall within the course and scope of his or her employment where it consists of either (1) acts authorized by the employer or (2) unauthorized acts that are so connected with acts that the employer has authorized that they may rightly be regarded as modes – although improper modes – of doing what has been authorized: Canadian Specific Railway Company v. Lockhart, [1942] AC 591 at 599.”

Thus, in Ireland, in Williams v. Morrissey [1903] 37 I.L.T.R. 65 the defendant was held liable when his employee, who was driving his (the employer’s) cow threw a stone at the cow to divert the animal and hit the plaintiff. The classic limitation on this form of liability was when the employee went on what was somewhat quaintly described as ‘a frolic of his own’, though the cases on this topic were far from consistent.

It was, however, until recently almost universally considered that an employer would not be liable for a forbidden act, and in particular one amounting to a criminal offence. Thus, in the second, penultimate, edition of McMahon and Binchy’s work on torts, it is said at p.757:

“Although there is some authority for saying that the master’s prohibition forbidding the servant from acting as he did does not automatically exonerate the master from liability, the majority of Irish cases where the master’s prohibition was a factor have resulted in the Court holding that the servant acted outside the scope of his authority.”

Speaking generally on the topic of “conduct outside the scope of employment”, the same authors say at p.758:-

“If the servant acts outside the scope of his employment the master will not be liable. Sometimes it is said that, provided the servant is doing the kind of thing he is employed to do, then the master remains liable even if he does it improperly, but that the master is not liable if the servant is doing something different in kind from that which he is employed to do.”

It is scarcely necessary to say that sexually abusing a pupil is something quite different in kind from what a school teacher is employed to do.

On the same page the learned authors discussed the case of Lawlor v. O’Connor [1929] 63 I.L.T.R. 103. There a driver assaulted a third party by grabbing her and holding her on the running board of a moving truck, later dropping her without stopping. The authors comment:-

“The bizarre facts in this case may not make it very useful as a precedent, but it may indicate reluctance on the part of the Irish Courts to saddle the master with liability where the servant commits an intentional tort (or a crime) against the person of the plaintiff.” (Emphasis added)

…”

Fennelly J.

“….Vicarious liability

26.       In order to fix the State with responsibility for the criminal assaults committed upon her by Mr Hickey, the appellant invokes the principle of vicarious liability as it has been developed in the common law. Assuming Mr Hickey, as the principal teacher of a national school, to have been acting in the capacity of a servant or employee of the State, it is claimed that vicarious liability is sufficiently capacious to bring the claim home against the State. It will be necessary to test the assumption mentioned in the preceding sentence.

27.       Firstly, however, I will discuss the principles which apply to vicarious liability for acts of the sort at issue in this case.

28.       The notion that a person should be made responsible to an injured party for the effects of acts he has expressly or impliedly authorised provides the original basis for vicarious liability. Over time, the master’s liability for his servant’s acts ceased to be based on any assumption that he had authorised the wrongdoing. It sufficed if the servant had been acting in the course of his employment. Courts have on occasion explained the principle in terms of the Latin maxims, respondeat superior and qui facit per alium facit per se. These have been criticised as unhelpful (see Salmond on Torts, Fourteenth Edition, R.F.V. Heuston, Sweet & Maxwell, London 1965, page 644 for a selection of comments). Nonetheless, they are, to my mind, useful brief statements. They enshrine the notions of responsibility—respondeat–of a principal for the acts of an agent and action carried out on behalf of another. A person in authority may be answerable for the acts of his servant.

……

41.       I pause at this point before considering the more recent authorities, to take stock of the ordinary rule concerning vicarious liability for the illegal acts of an employee. The second leg of the Salmond test has served the law well. It asks whether the act complained of is an unauthorised mode, adopted by the servant, of performing the work of the employer. Strict logic might suggest that fraud on the client (as in Lloyd v Grace Smith) or theft of the customer’s goods (as in Morris v C.W. Martin & Sons Ltd) could not be so considered. The law adopts a solution which is not strictly logical in this sense. Clearly theft of the customer’s property is not, in the ordinary sense, a mode of performing a service for that customer. The law asks, however, whether the act of the servant is “closely connected” to the employer’s work. It says that, where two parties (the cheated customer and the employer of the dishonest servant) are innocent, it is just, when assessing whether the servant was acting within the scope of his employment, that the employer, who employed the dishonest servant, rather than the customer should bear the loss.

….

62.       Ultimately, I am satisfied that it is appropriate to adopt a test based on a close connection between the acts which the employee is engaged to perform and which fall truly within the scope of his employment and the tortious act of which complaint is made. That test, as the cases have shown, has enabled liability to be imposed on the solicitor’s clerk defrauding the client (Lloyd v Grace Smith & Co); the employee stealing the fur stole left in for cleaning (Morris v C.W. Martin & Sons Ltd) and the security officer facilitating thefts from the premises he was guarding (Johnson & Johnson v C.P. Security). In each of these cases, the action of the servant was the very antithesis of what he was supposed to be doing. But that action was closely connected with the employment. In Delahunty v South Eastern Health Board [2003] IEHC 132, O’Higgins, rightly in my view, held that there was no such close connection. The employee of the orphanage had abused a visitor, not an inmate.

63.       The close-connection test is both well established by authority and practical in its content. It is essentially focussed on the facts of the situation. It does not, in principle, exclude vicarious liability for criminal acts or for acts which are intrinsically of a type which would not be authorised by the employer. The law regards it as fair and just to impose liability on the employer rather than to let the loss fall on the injured party. To do otherwise would be to impose the loss on the entirely innocent party who has engaged the employer to perform the service. The employer is, of course, also innocent, but he has, at least, engaged the dishonest servant and has disappointed the expectations of the person to whom he has undertaken to provide the service. There is no reason, in principle, to exclude sexual abuse from this type of liability. That is very far, as I would emphasise, from saying that liability should be automatically imposed. The decision of O’Higgins J provides an excellent example of practical and balanced application of the test. All will depend on a careful and balanced analysis of the facts of the particular case. In Bazley, the employees of the care home were required to provide intimate physical care for the residents. The sexual abuse was held to be closely connected.

64.       In the present case, there is no claim against the manager or patron of the school. It is not, therefore, appropriate to decide whether vicarious liability should be imposed on the direct employer of the first-named defendant. In such a case, all the facts would have to be carefully considered or, to recall the words of Lord Steyn already quoted, there must be “an intense focus on the connection between the nature of the employment and the tort of the employee…” It may be relevant to consider whether it matters that the music lessons were not part of the ordinary school curriculum and were provided outside normal hours. Mr O’Driscoll Senior Counsel, on behalf of the second to fourth defendants referred to the residential setting of the abuse in both Bazley and Lister. Clearly, that may be a material factor. However, I express no concluded view.

65.       The important question in the present appeal is whether liability can be imposed on the second to fourth-named defendants or on any of them, in other words, on the State. It is immediately necessary to note that, in each and every one of the cases on close connection, a direct employment relationship existed. The first-named defendant was not employed by the second-named defendant or by any of the other defendants. He was, in law, the employee of the manager, Canon Stritch. It is true that he was required to possess qualifications laid down by the second-named defendant and to observe the detailed and minute provisions of the Rules for National Schools. The State had disciplinary powers in relation to him pursuant to those Rules. However, the State did not have the power to dismiss him; nor was he originally engaged by the State. The scheme of the Rules and the consistent history of national schools is that the day-to-day running of the schools is in the hands of the manager. The inspection regime does not alter that. The department inspectors do not have power to direct teachers in the carrying out of their duties.

66.       All of this is quite graphically confirmed by the facts of this case. It seems clear that no report was ever made to the second-named defendant or his Department of the complaints of sexual abuse against Mr Hickey, either the original single complaint made to Fr O’Ceallaigh in 1971 or the many complaints which surfaced in 1973. All that happened was that Fr O’Ceallaigh wrote a letter to the second-named defendant on behalf of Canon Stritch on 14th January 1974 informing him that the Mr Hickeyhad “given notice of his resignation…effective from Jan 31st 1974.” The same letter named the proposed replacemet teacher: Fr O’Ceallaigh said: “I plan to appoint…” All this further implies that the parents made their complaints, not to the second-named defendant, but to the manager, i.e., either Canon Stritch or, more likely, Fr O’Ceallaigh who was considered to be acting as de facto manager.

67.       There was no employment relationship between Mr Hickey and the second-named defendant. Hardiman J discusses the principles concerning the degree of control over a person’s actions for the purposes of establishing vicarious liability. I prefer to express no opinion on the decision of this Court in Moynihan v. Moynihan [1975] IR 192, other than to observe that it is based on highly unusual facts. This Court was not asked, at the hearing of the appeal, to over-rule it. I cannot see that it establishes any precedent capable of being applied to the present case. On normal principles, the State has no vicarious liability for the acts of a teacher appointed by the manager of a national school under the system of management of national schools. I do not, of course, exclude the possibility of liability if it were to be established that, for example, an inspector was on notice of improper behaviour by a teacher and neglected to take action. That would not, however, be vicarious liability.

68.       There is no legal basis in this case for the imposition of vicarious liability. For the same reason, insofar as it is necessary to say so, there can be no liability for the failure of Fr O’Ceallaigh to report the 1971 complaint. Fr O’Ceallaigh was not the employee of the second-named defendant.

69.       For these reasons, I would dismiss the appeal. “

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McMahon v. Irish Biscuits Ltd.

[2002] IEHC 15

O’Donovan J.

“4. Insofar as Irish Biscuits Limited are concerned, it is settled law that, as the Plaintiff’s employers, they owed him a duty, as was stated by the Supreme Court in the unreported case of Dalton v Frendo (judgment delivered on the 15th of December 1977) “to take reasonable care for the servants’ safety in all circumstances of the case”. This does not mean that Irish Biscuits Limited are the insurers of the safety of the Plaintiff in the course of his employment with them but, in my view, it does mean that they were required to take all reasonable steps to ensure that he was not exposed to avoidable risk of injury in the course of his employment.

5. To that end, it is my view that they had a duty to acquaint themselves of the facilities which were provided by their customers to enable their (Irish Biscuits Ltd) sales staff to carry out duties, which were for their mutual benefit, and to satisfy themselves that those facilities and the system operated by their customers whereby their sales staff carried out their duties did not pose a threat to their well being. In my view, Irish Biscuits Ltd. fell down badly with regard to that duty. In this regard, it was clear from the evidence of Ms. Derbhla O’Brien, the National Sales Manager for Irish Biscuits Ltd. at the material time, that she and, presumably, her employers did not consider it necessary to visit their various sales outlets to ensure that the facilities afforded to their sales staff were appropriate. Indeed, in the circumstance that Irish Biscuits Ltd. appear to have 1,000 outlets for their product, Ms. O’Brien maintained that it was not practicable for them to inspect all those outlets. I do not agree. However difficult it might be, it is my opinion that the duty of care which Irish Biscuits Ltd. owed to its employees obliged them to ensure that the facilities afforded to their employees by their customers to enable their employees to carry out duties for the mutual benefit of themselves and their customers did not threaten the safety of their employees. This, it appears, Irish Biscuits Ltd. did not do; at least, insofar as the Plaintiff was concerned. However, the Plaintiff’s immediate superior at the material time, Mr. Michael McHugh, was aware of the risks which the Plaintiff was taking and, indeed, he gave evidence that he passed on the Plaintiff’s complaints in that regard to his superior; a Mr. Freehill so that the fact of the matter appears to be that while Irish Biscuits Ltd. do not, as a matter of practice, inspect all of the facilities afforded by their customers for their sales staff; insofar as the Plaintiff was concerned, senior management in Irish Biscuits Ltd. were aware of the risks to which the Plaintiff was exposed while checking stock in the Quinnsworth warehouse and, yet, they did nothing about it. In my view, their failure to do so amounted to negligence which significantly contributed to the Plaintiff’s fall and the resultant injuries which he suffered. In this regard, I reject the submission by Counsel for Irish Biscuits Ltd that, in the absence of any relevant complaint, it is unreasonable to expect an employer to inspect premises of a third party in which members of the employers staff are expected to carry out duties on behalf of the employer, or to make enquiries with regard to the system of work maintained for members of their staff on the premises of the third party for the purpose of satisfying themselves that their staff are not exposed to avoidable risks. If that were so, it seems to me that an employer would be entitled to abrogate the duty of care he owes to his employee in favour of a third party which I do not perceive to be the law in this country and neither do I think that the judgment of the Court in the case of  Mulcare v Southern Health Board (1988 ILRM at page 689), to which I was referred, is authority for that proposition. Accordingly, it is my view that, not only were Irish Biscuits Ltd negligent for their failure to act upon the complaint made by Mr McMahon but I think that they were also negligent for failing to appraise themselves of the system of work involving their employee which was tolerated in the Quinnsworth warehouse.

6. Insofar as Powers Supermarkets are concerned, there is no doubt but that they were in control of the situation at the time of the Plaintiff’s accident and I have no doubt but that members of their staff, including members at managerial level, were aware of the manner in which the Plaintiff was accustomed to checking stocks of biscuit and, being aware of that, they must also have been aware of the risk of injury to which the Plaintiff was exposed and, yet, they did nothing to avoid that risk. In my view, that also was a negligent omission which contributed to the Plaintiff’s accident, and indeed, was the main contributing factor. In my view, as between Irish Biscuits Ltd. and Powers Supermarkets, insofar as blame worthiness is concerned, in the circumstance that Powers Supermarkets were in control of the situation at the material time and had the immediate opportunity of doing something which might have avoided the accident which befell the Plaintiff, I think that they are the more to blame. In this regard, I am very much influenced by the fact that the Plaintiff’s visit to the Quinnsworth warehouse on a Monday morning was a scheduled visit of which Powers supermarket were well aware and a scheduled visit during which the Plaintiff would be under severe constraints with regard to the time within which he had to do whatever was necessary to ensure that they (Powers Supermarkets) got a fresh supply of biscuits on the following Wednesday, as the second-named Defendants were also well aware. Accordingly, they should have ensured that their premises were in a state of preparedness for the Plaintiff which they, obviously, were not.

7. In the light of the foregoing, I would apportion fault for the Plaintiff’s accident as to 60% against Powers Supermarkets, 30% against Irish Biscuits Ltd, and, notwithstanding that the negligence of the Defendants would, in my view, also amount to breach of their statutory obligations under the relevant provisions of the Factories Acts and Regulations made thereunder, I find that the blameworthiness of the Plaintiff to which I have already referred amounts to contributory negligence to the extent of 10%. ….“

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Ian Barclay v. An Post and Martin Murray

 [1998] 2 I.L.R.M. 385

McGuinness J

“Counsel for the plaintiff also referred the court to the possibility of An Post bringing in a scheme under s. 70 of the 1983 Act which would regulate the size and position of letter boxes. However, I would accept that, as submitted by Mr McGovern, schemes under this section deal with the charges to be imposed for postal services and similar matters. I do not consider that the section could be extended to cover specifications in regard to letter boxes.

As far as the case law is concerned, the classic case in this jurisdiction on the standard of care owed by an employer to an employee in regard to safety is Bradley v. CIE [1976] IR 217 . In that case the plaintiff, a railwayman, was injured when he fell from a ladder attached to a signal post. Engineering evidence suggested that a protective cage would have prevented such a fall but there was no evidence that such cages were provided by other railway companies. There had been no similar accidents within the previous 10 years. The Supreme Court, as is stated in the head note, held that the suggested precaution had not been shown either to have been one which had been commonly taken by other railway operators or to have been one which a reasonably prudent employer would think was obviously necessary in the prevailing circumstances for the protection of its employees. At p. 223 of the report Henchy J stated:

The law does not require an employer to ensure in all circumstances the safety of his workmen. He will have discharged his duty of care if he does what a reasonable and prudent employer would have done in the circumstances.

Henchy J went onto say:

Even where a certain precaution is obviously wanted in the interest of the safety of the workmen, there may be countervailing factors which would justify the employer in not taking that precaution.

However, as was submitted by Mr Trainor, more recent cases have taken a somewhat less harsh line. In Kennedy v. Hughes Dairy Ltd [1989] ILRM 117 , where an employee suffered a cut from broken glass at a bottling plant, the Supreme Court held that there was sufficient evidence to enable a jury reasonably to conclude that there had been a foreseeable risk of injury to the plaintiff in the area in which he was injured, because of the nature of his work. The learned McCarthy J (at p. 123 of the report) stated:

the essential question in all actions of negligence is whether or not the party charged has failed to take reasonable care whether by act or omission.

In Dunne v. Honeywell Control Systems Ltd [1991] ILRM 595 , Barron J dealt with the situation where an employee is working on a third party’s premises. At p. 600 of the report he stated:

An employer has a duty to take reasonable care for the safety of his employees. Where an employee is working on premises other than that of his employer the duty of the employer to use reasonable care for his safety does not in any way diminish. Nevertheless what might be reasonable for an employer to do for the safety of his employee on his own premises may no longer be reasonable where the employee is working elsewhere.

Dr White, in his book, Civil Liability for Industrial Accidents (Vol. 1, p. 434) summarises the situation of the worker on a third party’s premises thus:

The employer owes the like duty of care with regard to the safety of the premises of third parties on which he requires his servants to work as he does in respect of his own premises, but what reasonable care requires in relation to the latter is not necessarily the same as what reasonable care requires in relation to the former.

Having referred to Dunne v. Honeywell , he then goes on (at p. 486) to deal with the situation where, as in the instant case, the employer is aware of the hazard. He refers to the English case of Smith v. Austin Lifts Ltd [1959] 1 All ER 81 , where the plaintiff employee had reported to the employer a faulty door mechanism on the third party’s premises. When the employee was injured as a result of the hazard, the House of Lords held that the employer had indeed been negligent. Lord Denning said:

Notwithstanding what was said in Taylor v. Sims & Sims [1942] 2 All ER 375 , it has since been held, I think rightly, that employers who send their workmen to work on the premises of others cannot renounce all responsibility for their safety. The employers still have an over-riding duty to take reasonable care not to expose their men to unnecessary risk. They must, for instance take reasonable care to devise a safe system of work (see General Cleaning Contractors v. Christmas [1952] 2 All ER 1110 ) and, if they know or ought to know of a danger on the premises to which they send their men, they ought to take reasonable care to safeguard them from it. What is reasonable care depends of course on the circumstances: see Wilson v. Tyneside Window Cleaning Co. [1958] 2 All ER 265 .

Applying this principle, I think that the judge was entitled in this case to find the employers liable. If the workmen had not reported any difficulty or defect on the premises, the employers would not have been responsible. They would have been entitled to assume that the means of access provided by the occupiers was reasonably safe. But when the workmen reported — as they did — that the machine house door was broken and needed re-fixing in position, the employers were, I think, put on enquiry whether the means of access provided by these doors was reasonably safe. They ought to have done something but they did nothing beyond report the defect to the occupiers. Report after report, four in all, produced no results. Thereupon the employers ought, I should have thought — and, indeed, as the judge thought — to have gone themselves to see if the means of access was reasonably safe. They had done so they would have found it unsafe and would have done something. They might have insisted on the door being mended, or they might have sent a long ladder to enable the men to get safely to the machinery. Having done nothing, they cannot escape liability.

Mr McGovern, for the first named defendant, referred to Charlesworth on Negligence (9th ed.) at paragraph 6–18, where the learned author refers to the necessity of balancing the risk against the measures necessary to eliminate it, as follows:

Very few activities can be done without some risk. Crossing the street in a town incurs a risk but the street must be crossed. Cleaning the windows of a high building is a risk and yet the windows must be cleaned. Going to sea is a risky occupation but shipping must be carried on, regardlessly …. There are some cases where the risk can be reduced or eliminated only at great cost. But the question then arises, at what point can the matter of costs be taken into account when considering the degree of care to be taken?

The learned author then considers a number of cases in which this question arose and concludes at paragraph 6–21:

In taking stock of the situation, including the difficulty or cost of remedial measures, it is necessary to take into account not only the risk but also the importance of the object to be attained by the activity which creates the risk. If the activity in question is of little or no national importance, it might be that costs should not be taken into account, but in other cases there must be, as in practice there is, a point beyond which further remedial measures are prohibitive by reason of cost.

At paragraph 6–23 he concludes:

It is a question of degree in each case to be considered, together with the importance of the object to be achieved.

An Post, counsel submitted, had taken all possible and reasonable measures and could not be held liable for its failure to eliminate the risk.

Conclusion 

It is necessary to consider the evidence in the light of the case law set out above. It is accepted by the first named defendant that the positioning of letter boxes a few inches from the ground causes both extreme inconvenience and also a hazard to the health and safety of postmen; a moment’s thought would convince one that this form of door design is totally contrary to common sense. An Post had received numerous complaints from the employees’ trade union and from individual postmen; the matter had been raised in Dáil Éireann by Deputy James Tully as early as 1971. The hazard was therefore known to the first named defendant and the risk was a foreseeable one. The first named defendant from its own research and that of its consultants was aware that the practice in other jurisdictions was to regulate the size and position of letter boxes by statute or statutory regulation.

An Post and its predecessor the Department of Posts and Telegraphs did, however, make some response to the situation. By 1976 the department had succeeded in having proper height and other specifications included in the Irish Standard. Over many years efforts were made to deal with the problem through building regulations or the planning code. It is true that until the late 1980s or early 1990s these efforts were somewhat lethargic and some blame for this attaches to the first named defendant, but the main difficulty in my view lay with other bodies in whose hands the remedy lay — the Oireachtas and the Department of the Environment. Given the wide terms of s. 3 of the Building Control Act 1990 , I find it difficult to disagree with the contention of counsel for the plaintiff that the relevant regulations could have been made under that Act. However, the power to make such regulations lay outside the remit of the first named defendant. Finally, in more recent times the first named defendant has made sustained and genuine efforts to improve the situation in regard to letter boxes generally in both urban and rural areas. It has not succeeded in eliminating the hazard but that has not been due to any major negligence on its part. It has, in addition, provided a training course in manual handling to the plaintiff and his fellow workers. The course may not have been ideal but it warned of the hazards of bending and twisting and I was impressed by the level of commitment and enthusiasm shown by Mr Bolger in his evidence. It is true that he did not provide a satisfactory answer to the problem of delivering letters to low letter boxes, but if one thing emerges from the evidence in this case it is that there is in fact no practical satisfactory answer to this problem other than to eliminate low letter boxes.

On balance, therefore, up to the time of the plaintiff’s injury in June 1993 I conclude that the first named defendant had taken reasonable care in the circumstances to deal with the undoubted hazard. The first named defendant has, in general terms, continued to deal with the matter with reasonable care in so far as lies within its power. It can only be hoped that cases such as this may per suade the legislature to take the relevant action.

As far as this particular plaintiff is concerned, however, that is not the end of the matter. He had suffered a severe injury to his back in June 1993; he had reported this matter to his supervisor; he had attended the company doctor; he had been forced to take time off work. His injury and his consequent vulnerability were by late August/early September 1993 well known to his employers. Yet on 21 October 1993 he was sent out on overtime to deliver mail to the development at Mount Argus, where some 350 houses had low letter boxes. This overtime delivery to Mount Argus was not, on the evidence, a sudden emergency. It was a regular part of the system at the Fortfield Office because no arrangements had yet been made to set up a separate round for Mount Argus. The plaintiff accepts that he took on this overtime duty voluntarily; he could have refused it. But he had been out of work for some time and he needed the extra money.

The question of voluntary assumption of risk is dealt with in convenient summary by McMahon and Binchy in their work, The Irish Law of Torts (2nd ed.) at p. 336 as follows:

Formerly the defence of voluntary assumption of risk was fairly readily accepted in cases dealing with employer’s liability. In recent years however, the defence ‘has virtually disappeared in such cases which turn on common law negligence’ (O’Hanlon v. ESB [1969] IR 75 ). The courts, even before the statutory reform of 1961, had shown an increasing sympathy for the dilemma of an employee who was aware of a dangerous work practice for which his employer was responsible. If he said nothing, he might be held to have accepted the risk; if he protested, he might lose his livelihood. Today only a communicated waiver of a right of action will constitute a voluntary assumption of the risk; an uncommunicated determination will not suffice. The employee may, however, still be defeated by holding that, having regard to the risks inherent in a particular business, the employer was not in breach of his duty of care to the employee.

In the particular circumstances of the plaintiff in this case it seems to me that the first named defendant’s duty of care towards Mr Barclay included a duty to ensure that, at least in the short term after his illness, he did not take up duties which would put undue and extraordinary strain on his back. The delivery to 350 low letter boxes in Mount Argus was eminently such a duty. The original inspector, Mr Parnell, had left Fortfield Office in September 1993 and I did not hear evidence from the inspector in charge in October 1993. However, my impression from the evidence of Mr Parnell and Mr Bolger was that the attitude of An Post’s inspectors to the working postmen and their problems was distinctly uneven. Mr Bolger, when he was an inspector, clearly took a great interest in the welfare of his postmen; I did not get the same impression from Mr Parnell’s evidence. It should be part of the duty of care of higher management to ensure that line management executives such as inspectors bear in mind the welfare, health and safety of ordinary postmen.

In summary, I find that the first named defendant did not properly discharge the employer’s reasonable duty of care in the case of the plaintiff’s second injury and as such the first named defendant is liable for that injury.”

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Walsh v. Securicor (Ireland) Ltd.

[1993] 2 I.R. 509

Egan J.

“This is an appeal from a finding of negligence on the part of the defendant made by Barrington J. In the course of his judgment he stated as follows:

 “This case arises out of an ambush which took place on the 14th April, 1983, on a Securicor armoured vehicle. The ambush was carried out with ruthless military precision and involved an attack not only upon the Securicor van but also upon the garda escort which the robbers succeeded in neutralising so far as the protection of the van was concerned.”

 On the date in question in the course of his employment with the defendant, the plaintiff, having collected a large amount of money from a bank in Cork City, was driving the van on the road from Cork to Cobh with the object that he would deliver money to clients or customers of the defendant including smaller banks and the post office in Cobh. He had another employee of the defendant with him in the van.

 He suddenly found in the course of his journey that the road in front of him was blocked by a tractor and the road behind him was cut off and bullets were being fired at him through the windscreen which began to shatter. He was eventually forced to open the door of the van and was hit on the head with what he believed to be the butt-end of a rifle. He was knocked unconscious. The robbers then made off with most of the money in the van.

 The learned judge went on to say:

 “All the experts on security who have given evidence before me are satisfied that the ambush was one which could not have been carried out without planning and foreknowledge of the movements of the armed vehicle in question, which had been passing along this route towards Cobh with proper precision about the hour of 10 a.m. every Thursday morning for the previous seven years. The route was known to both the defendant and to the police to be what was referred to in the evidence as a high risk route.”

 Damages were awarded to the plaintiff and there is no appeal against the amount thereof. The only appeal is against the finding that the defendant was negligent. In the course of the trial the defendant was criticised in many ways but in the final analysis the plaintiff was compelled to rely on one single allegation of negligence, i.e., that the journey in question should not have been scheduled to be undertaken at precisely the same time on every Thursday for the seven years prior to the incident in question. This practice had the result that on every Thursday at about 10 a.m. or certainly within minutes of that time the Securicor van would arrive at the exact location where the incident occurred. It was accepted that this fact would inevitably have become known to prospective wrongdoers. The learned trial judge held that the plaintiff had made out his case so far as the rigidity of the time factor was concerned. He was satisfied as a matter of probability that it made the ambush possible and resulted in the plaintiff sustaining the injuries which he did sustain.

 The defendant argued that the provision of a garda escort minimised any risk but it could not, of course, argue that it eliminated the risk. It also argued that it had no flexibility to avail of in the matter of time, as in relation to at least some of its deliveries it was tied by contract to being consistent in regard to time. The learned trial judge, however, found that whereas decisions, including the time factor, were apparently made at high management level in the bank and in the security firm, there was no evidence at all of any discussions at the appropriate levels about the  desirability of reviewing or changing the times of delivery from time to time. The evidence justified this finding.

 In the context of the provision of the garda escort it was argued initially that this could only be arranged if the company agreed to tie itself to specific times but the learned trial judge found, particularly on the evidence of Sergeant O’Driscoll, that this was not the attitude of the gardaí and that they appeared to be quite flexible if given even very short notice of alteration in time. There was evidence to support this finding. In any event, this was a high risk operation and the defendant was bound to avail of every safety precaution, not just the provision of a garda escort.

 In what I might class as a last stand, reliance was placed on the fact that to the knowledge of the defendant no attack had been made during the previous seven years upon a van accompanied by a garda escort. The learned trial judge did not deal specifically with this argument in his judgment. It was made on the basis of foreseeability but, as already stated, the provision of a garda escort minimises risk but does not eliminate it. Every device or precaution must be taken in a high risk operation such as this and there was expert evidence to the effect that it was unwise to retain a clockwork precision in relation to the time factor.

 In the case of  Ryan v. Ireland  [1989] I.R. 177, Finlay C.J. was dealing with a case in regard to which he stated that considerations of standards of care drawn from the experience of the workplace might be of little assistance. He stated, however, as follows (at p. 183):

 “There could, I think, be no objective in a master and servant relationship which would justify exposing the servant to a risk of serious injury or death other than the saving of life itself.”

 It need hardly be emphasised that this is a very high duty indeed.

 I am satisfied on the evidence which the learned trial judge was entitled to accept and on the inferences which he was justified in making that his decision was correct and that this appeal should be dismissed.”

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Fairchild v Glenhaven Funeral Services Ltd & Ors

[2002] UKHL 22[2002] 3 WLR 89, [2003] 1 AC 32, [2003] AC 32

LORD BINGHAM OF CORNHILL

“Principle

In a personal injury action based on negligence or breach of statutory duty the claimant seeks to establish a breach by the defendant of a duty owed to the claimant, which has caused him damage. For the purposes of analysis, and for the purpose of pleading, proving and resolving the claim, lawyers find it convenient to break the claim into its constituent elements: the duty, the breach, the damage and the causal connection between the breach and the damage. In the generality of personal injury actions, it is of course true that the claimant is required to discharge the burden of showing that the breach of which he complains caused the damage for which he claims and to do so by showing that but for the breach he would not have suffered the damage.

The issue in these appeals does not concern the general validity and applicability of that requirement, which is not in question, but is whether in special circumstances such as those in these cases there should be any variation or relaxation of it. The overall object of tort law is to define cases in which the law may justly hold one party liable to compensate another. Are these such cases? A and B owed C a duty to protect C against a risk of a particular and very serious kind. They failed to perform that duty. As a result the risk eventuated and C suffered the very harm against which it was the duty of A and B to protect him. Had there been only one tortfeasor, C would have been entitled to recover, but because the duty owed to him was broken by two tortfeasors and not only one, he is held to be entitled to recover against neither, because of his inability to prove what is scientifically unprovable. If the mechanical application of generally accepted rules leads to such a result, there must be room to question the appropriateness of such an approach in such a case.

In March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 at 508, Mason CJ, sitting in the High Court of Australia, did not “accept that the ‘but for’ (causa sine qua non) test ever was or now should become the exclusive test of causation in negligence cases” and (at p 516) he added:

“The ‘but for’ test gives rise to a well-known difficulty in cases where there are two or more acts or events which would each be sufficient to bring about the plaintiff’s injury. The application of the test ‘gives the result, contrary to common sense, that neither is a cause’: Winfield and Jolowicz on Tort, 13th ed (1989), p. 134. In truth, the application of the test proves to be either inadequate or troublesome in various situations in which there are multiple acts or events leading to the plaintiff’s injury: see, e.g., Chapman v Hearse, Baker v Willoughby [1970] AC 467; McGhee v National Coal Board; M’Kew (to which I shall shortly refer in some detail). The cases demonstrate the lesson of experience, namely, that the test, applied as an exclusive criterion of causation, yields unacceptable results and that the results which it yields must be tempered by the making of value judgments and the infusion of policy considerations.”

In Snell v Farrell [1990] 2 SCR 311 at 320, Sopinka J, delivering the judgment of the Supreme Court of Canada, said:

“The traditional approach to causation has come under attack in a number of cases in which there is concern that due to the complexities of proof, the probable victim of tortious conduct will be deprived of relief. This concern is strongest in circumstances in which, on the basis of some percentage of statistical probability, the plaintiff is the likely victim of the combined tortious conduct of a number of defendants, but cannot prove causation against a specific defendant or defendants on the basis of particularized evidence in accordance with traditional principles. The challenge to the traditional approach has manifested itself in cases dealing with non-traumatic injuries such as man-made diseases resulting from the widespread diffusion of chemical products, including product liability cases in which a product which can cause injury is widely manufactured and marketed by a large number of corporations.”

McLachlin J, extra-judicially (“Negligence Law – Proving the Connection”, in Torts Tomorrow, A Tribute to John Fleming, ed Mullany and Linden, LBC Information Services 1998, at p 16), has voiced a similar concern:

“Tort law is about compensating those who are wrongfully injured. But even more fundamentally, it is about recognising and righting wrongful conduct by one person or a group of persons that harms others. If tort law becomes incapable of recognising important wrongs, and hence incapable of righting them, victims will be left with a sense of grievance and the public will be left with a feeling that justice is not what it should be. Some perceive that this may be occurring due to our rules of causation.

…………………

In the course of the present appeals much argument was directed to the decision of the House in McGhee v National Coal Board [1973] 1 WLR 1. The earlier stages of that case are reported at 1973 SC(HL) 37 and are important in understanding what the House decided. Mr McGhee had been employed by the National Coal Board for about 15 years, almost always working in pipe kilns. For some 4½ days he then worked at a brick kiln, giving up because of a dermatitic condition which had by then developed. The work inside the kiln was very hot and very dusty. The heat made men sweat profusely and the operation of the fan caused them to be covered in dust and grit. The pursuer contended that his dermatitis had been caused by his period of working in the brick kiln, short though it had been. The employers contended that his work had not caused the dermatitis and that it was non-occupational in origin. There was at the trial a conflict of medical evidence but the Lord Ordinary (Lord Kissen) held that the pursuer had contracted the dermatitis in the course of his work at the brick kiln and as a result of his exposure to dust and ashes when working there (p 39). Counsel for the pursuer accepted at trial that he could not establish a breach of statutory duty nor a breach of common law duty based on a failure to ventilate, but relied on two alleged breaches by the employers: of a duty to take care that the kiln had cooled sufficiently before men went in to work in it and of a duty to take reasonable care to provide adequate showers to enable men to remove dust from their bodies. The Lord Ordinary rejected the first of these complaints on a number of grounds, including the lack of proof that the breach of duty, even if established, had caused or materially contributed to the dermatitis: it was not enough that a reduction of heat would have lessened the risk (p 41). The Lord Ordinary concluded that the employers were at fault in failing to provide showers (p 42) but found against the pursuer on the basis of evidence given by two expert dermatologists, Dr Hannay and Dr Ferguson, called by the pursuer and the employers respectively. He said (at pp 42-43):

“As I have maintained earlier, the pursuer, in order to succeed, must also establish, on a balance of probabilities, that this fault on the part of the defenders ’caused or materially contributed to his injury’, that is to his contracting dermatitis. Dr Hannay’s evidence was that he could not say that the provision of showers would probably have prevented the disease. He said that it would have reduced the risk materially but he would not go further than that. Dr Ferguson said that washing reduces the risk. Pursuer’s counsel maintained that a material increase in the risk of contracting a disease was the same as a material contribution to contracting the disease and that Dr Hannay established this by his evidence. I think that defenders’ counsel was correct when he said that the distinction drawn by Dr Hannay was correct and that an increase in risk did not necessarily mean a material contribution to the contracting of the disease. The two concepts are entirely different. A material increase in risk may refer only to possibilities and may not make a possibility into a probability. It may strengthen the possibility but that cannot mean that in all such cases the possibility has become a probability. What the pursuer has to show is that, as he avers, he would not have contracted the disease but for the defenders’ breach of duty. He has to show that this was probable and the degrees of risk have no relevance unless they make the contraction of the disease more probable than not contracting the disease. He cannot succeed if the only inference from the evidence is that lack of shower baths is a possibility as a cause of his having contracted the disease and the provision of shower baths would have increased the possibility but not made it a probability. That is the only inference which I can draw from Dr Hannay’s evidence and that was the best evidence for the pursuer. Causal connection between fault and the contraction of the disease has not been established.”

The pursuer appealed to the First Division against the dismissal of his claim. The medical evidence given at the trial was reviewed in detail, and in particular an exchange between cross-examining counsel and Dr Hannay ( pp 43-44, 47, 50):

“Q. Do I understand you to say you are not in a position to say that the provision of showers would probably have prevented his contracting this skin trouble?

A. No one could say that that would prevent that man developing the condition. It would be likely to reduce the chances.”

In answer to further questions the doctor repeated his opinion that he could only say that the provision of showers would have reduced the chances of the pursuer contracting dermatitis and that that was as far as he was able to go. In the course of his judgment the Lord President, Lord Clyde, considered the pneumoconiosis cases and expressed his conclusion (at p 44):

“But in contrast to the pneumoconiosis cases, the present case is essentially concerned with proof of the causal connection between the fault alleged (i.e. inadequate washing facilities) and the development of dermatitis. Even if the pursuer had established (as he did not) that the absence of washing facilities increased the risk of the pursuer getting dermatitis, that would clearly not prove that the absence of these facilities caused the disease, nor indeed would it go any distance towards proving it. For risk of dermatitis and causation of dermatitis are two quite separate matters.”

Lord Migdale was of the same opinion (at pp 47-48):

“Counsel for the pursuer contended that as it was now accepted that the failure to provide a shower was a breach of the duty which the defenders owed to the pursuer to take reasonable steps for his well-being, the doctors’ evidence that it would have materially reduced the risk of dermatitis is enough to link the failure with the injury. Counsel for the defenders, on the other hand, contended that the test of causal connection between the breach and the injury is whether the provision of a shower would, on a balance of probabilities, have prevented the dermatitis. The Lord Ordinary says an increase in risk does not mean a material contribution to the contracting of the disease. A material increase in risk may refer only to possibilities and it does not make a possibility into a probability. ‘What the pursuer has to show is that, as he avers, he would not have contracted the disease but for the breach of duty’. He has to show this on a balance of probabilities.

In my opinion this is correct. Unless the pursuer can point to evidence that shows that a shower would more probably have avoided the disease than not, he cannot succeed and I do not find that evidence in this case.”

Lord Johnston was more hesitant, but in view of the other opinions did not feel inclined to take the view that the evidence was sufficient to allow him to hold that the test of the balance of probability had been satisfied (p 50).

On appeal to the House counsel for the pursuer faced the problem, as he had at trial and in the First Division, that his own evidence precluded a finding that the absence of a shower had probably caused the pursuer’s dermatitis. Mr Davidson QC accordingly relied on the evidence that provision of a shower would have materially reduced the risk to contend that he had made out a prima facie case. The contrary argument for the employers was advanced by Mr James Mackay QC, as reported at p 51:

“It was accepted that [the provision of washing facilities] would have been a reasonable precaution, but it did not follow that this would have eliminated the risk. The employee might have developed dermatitis in any event. If the precaution would not have prevented the disease, the appellant was not entitled to damages. In the case of pneumoconiosis the inhalation of dangerous dust inevitably created a basis for the disease by accumulation, whereas in the case of dermatitis a particle of grit would cause the disease only if there were an abrasion which opened up the layer below the horny outer layer of the skin. In the case of pneumoconiosis all the particles could be blamed. It was not so in the case of dermatitis. The mere fact that shower baths would have reduced the chances of the contraction of the disease did not mean that what was probable would thereby have been rendered improbable.”

Thus the issue, as presented to the House, was whether the pursuer could succeed despite his inability to show that he would probably not have suffered dermatitis but for the defenders’ failure to provide the showers which they should have provided.

In the House, opinions were given by all five members of the Appellate Committee which heard the appeal and the appeal was allowed: [1973] 1 WLR 1. Lord Reid, giving the first opinion, described the pursuer’s complaint based on the failure to provide shower facilities as raising “a difficult question of law” (p 3). He pointed out that the breach of duty in relation to showers was admitted, and it was admitted that the disease was attributable to the work which the pursuer had performed in the brick kiln, but it was contended that the pursuer had not proved that the defenders’ failure to carry out the admitted duty had caused the onset of the disease (p 3). Lord Reid’s understanding of the evidence, and his view of the proper approach to it, appear from the following passage of his opinion (at pp 4-5):

“In the present case the evidence does not show – perhaps no one knows – just how dermatitis of this type begins. It suggests to me that there are two possible ways. It may be that an accumulation of minor abrasions of the horny layer of the skin is a necessary precondition for the onset of the disease. Or it may be that the disease starts at one particular abrasion and then spreads, so that multiplication of abrasions merely increases the number of places where the disease can start and in that way increases the risk of its occurrence.

I am inclined to think that the evidence points to the former view. But in a field where so little appears to be known with certainty I could not say that that is proved. If it were, then this case would be indistinguishable from Wardlaw’s case. But I think that in cases like this we must take a broader view of causation. The medical evidence is to the effect that the fact that the man had to cycle home caked with grime and sweat added materially to the risk that this disease might develop. It does not and could not explain just why that is so. But experience shows that it is so. Plainly that must be because what happens while the man remains unwashed can have a causative effect, though just how the cause operates is uncertain. I cannot accept the view expressed in the Inner House that once the man left the brick kiln he left behind the causes which made him liable to develop dermatitis. That seems to me quite inconsistent with a proper interpretation of the medical evidence. Nor can I accept the distinction drawn by the Lord Ordinary between materially increasing the risk that the disease will occur and making a material contribution to its occurrence.

There may be some logical ground for such a distinction where our knowledge of all the material factors is complete. But it has often been said that the legal concept of causation is not based on logic or philosophy. It is based on the practical way in which the ordinary man’s mind works in the everyday affairs of life. From a broad and practical viewpoint I can see no substantial difference between saying that what the defender did materially increased the risk of injury to the pursuer and saying that what the defender did made a material contribution to his injury.”

Lord Wilberforce acknowledged the need for the pursuer to establish both a breach of duty and a causal connection between the default and the disease complained of (p 5), and also the difficulties of proof which the pursuer faced (pp 5-6):

“[The pursuer’s medical expert] could not do more than say that the failure to provide showers materially increased the chance, or risk, that dermatitis might set in.”

Lord Wilberforce accepted that merely to show that a breach of duty led to an increase of risk was not enough to enable a pursuer to succeed, but continued (at page 6):

“But the question remains whether a pursuer must necessarily fail if, after he has shown a breach of duty, involving an increase of risk of disease, he cannot positively prove that this increase of risk caused or materially contributed to the disease while his employers cannot positively prove the contrary. In this intermediate case there is an appearance of logic in the view that the pursuer, on whom the onus lies, should fail – a logic which dictated the judgments below. The question is whether we should be satisfied, in factual situations like the present, with this logical approach. In my opinion, there are further considerations of importance. First, it is a sound principle that where a person has, by breach of a duty of care, created a risk, and injury occurs within the area of that risk, the loss should be borne by him unless he shows that it had some other cause. Secondly, from the evidential point of view, one may ask, why should a man who is able to show that his employer should have taken certain precautions, because without them there is a risk, or an added risk, of injury or disease, and who in fact sustains exactly that injury or disease, have to assume the burden of proving more: namely, that it was the addition to the risk, caused by the breach of duty, which caused or materially contributed to the injury? In many cases, of which the present is typical, this is impossible to prove, just because honest medical opinion cannot segregate the causes of an illness between compound causes. And if one asks which of the parties, the workman or the employers, should suffer from this inherent evidential difficulty, the answer as a matter of policy or justice should be that it is the creator of the risk who, ex hypothesi must be taken to have foreseen the possibility of damage, who should bear its consequences.”

Having referred to Wardlaw’s and Nicholson’s cases Lord Wilberforce concluded (at page 7):

“The present factual situation has its differences: the default here consisted not in adding a material quantity to the accumulation of injurious particles but by failure to take a step which materially increased the risk that the dust already present would cause injury. And I must say that, at least in the present case, to bridge the evidential gap by inference seems to me something of a fiction, since it was precisely this inference which the medical expert declined to make. But I find in the cases quoted an analogy which suggests the conclusion that, in the absence of proof that the culpable addition had, in the result, no effect, the employers should be liable for an injury, squarely within the risk which they created and that they, not the pursuer, should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequence of their default.”

Lord Simon of Glaisdale considered that Wardlaw’s and Nicholson’s cases established a rule (at page 8)

“that where an injury is caused by two (or more) factors operating cumulatively, one (or more) of which factors is a breach of duty and one (or more) is not so, in such a way that it is impossible to ascertain the proportion in which the factors were effective in producing the injury or which factor was decisive, the law does not require a pursuer or plaintiff to prove the impossible, but holds that he is entitled to damages for the injury if he proves on a balance of probabilities that the breach or breaches of duty contributed substantially to causing the injury. If such factors so operate cumulatively, it is, in my judgment, immaterial whether they do so concurrently or successively.”

Lord Simon then continued (page 8):

“The question, then, is whether on the evidence the appellant brought himself within this rule. In my view, the failure to take steps which would bring about a material reduction of the risk involves, in this type of case, a substantial contribution to the injury. In this type of case a stark distinction between breach of duty and causation is unreal. If the provision of shower baths was (as the evidence showed) a precaution which any reasonable employer in the respondents’ position would take, it means that such employer should have foreseen that failure to take the precaution would, more probably than not, substantially contribute towards injury: this is sufficient prima facie evidence.”

Lord Simon regarded “material reduction of the risk” and “substantial contribution to the injury” as mirror concepts. Any other conclusion would mean that the defenders were under a legal duty which they could, on the present state of medical knowledge, ignore (page 9).

Lord Kilbrandon appears to have adopted a more orthodox approach to tortious liability. He said (at page 10):

“When you find it proved (a) that the defenders knew that to take the precaution reduces the risk, chance, possibility or probability of the contracting of a disease, (b) that the precaution has not been taken, and (c) that the disease has supervened, it is difficult to see how those defenders can demand more by way of proof of the probability that the failure caused or contributed to the physical breakdown … In the present case, the pursuer’s body was vulnerable, while he was bicycling home, to the dirt which had been deposited on it during his working hours. It would not have been if he had had a shower. If showers had been provided he would have used them. It is admittedly more probable that disease will be contracted if a shower is not taken. In these circumstances I cannot accept the argument that nevertheless it is not more probable than not that, if the duty to provide a shower had not been neglected, he would not have contracted the disease. The pursuer has after all, only to satisfy the court of a probability, not to demonstrate an irrefragable chain of causation, which in a case of dermatitis, in the present state of medical knowledge, he could probably never do.”

In Lord Salmon’s opinion the question before the House was whether the pursuer’s dermatitis was proved to have been caused or materially contributed to by the defenders’ negligence (page 11). He rejected the view, expressed by the Lord President (see paragraph 18 above) that to increase the risk of injury was not, in the circumstances of this case, to cause the injury. In such a case he regarded it as unrealistic and contrary to ordinary common sense to hold that the negligence which materially increased the risk of injury did not materially contribute to causing it (pages 11-12). He observed (at page 12):

“I think that the approach by the courts below confuses the balance of probability test with the nature of causation. Moreover, it would mean that in the present state of medical knowledge and in circumstances such as these (which are by no means uncommon) an employer would be permitted by the law to disregard with impunity his duty to take reasonable care for the safety of his employees.”

Lord Salmon’s conclusion (pages 12-13) was expressed in these terms:

“In the circumstances of the present case, the possibility of a distinction existing between (a) having materially increased the risk of contracting the disease, and (b) having materially contributed to causing the disease may no doubt be a fruitful source of interesting academic discussions between students of philosophy. Such a distinction is, however, far too unreal to be recognised by the common law.”

This detailed review of McGhee permits certain conclusions to be drawn. First, the House was deciding a question of law. Lord Reid expressly said so (page 3). The other opinions, save perhaps that of Lord Kilbrandon, cannot be read as decisions of fact or as orthodox applications of settled law. Secondly, the question of law was whether, on the facts of the case as found, a pursuer who could not show that the defender’s breach had probably caused the damage of which he complained could nonetheless succeed. Thirdly, it was not open to the House to draw a factual inference that the breach probably had caused the damage: such an inference was expressly contradicted by the medical experts on both sides; and once that evidence had been given the crux of the argument before the Lord Ordinary and the First Division and the House was whether, since the pursuer could not prove that the breach had probably made a material contribution to his contracting dermatitis, it was enough to show that the breach had increased the risk of his contracting it. Fourthly, it was expressly held by three members of the House (Lord Reid at page 5, Lord Simon at page 8 and Lord Salmon at pages 12-13) that in the circumstances no distinction was to be drawn between making a material contribution to causing the disease and materially increasing the risk of the pursuer contracting it. Thus the proposition expressly rejected by the Lord Ordinary, the Lord President and Lord Migdale was expressly accepted by a majority of the House and must be taken to represent the ratio of the decision, closely tied though it was to the special facts on which it was based. Fifthly, recognising that the pursuer faced an insuperable problem of proof if the orthodox test of causation was applied, but regarding the case as one in which justice demanded a remedy for the pursuer, a majority of the House adapted the orthodox test to meet the particular case. The authority is of obvious importance in the present appeal since the medical evidence left open the possibility, as Lord Reid pointed out at page 4, that the pursuer’s dermatitis could have begun with a single abrasion, which might have been caused when he was cycling home, but might equally have been caused when he was working in the brick kiln; in the latter event, the failure to provide showers would have made no difference. In McGhee, however, unlike the present appeals, the case was not complicated by the existence of additional or alternative wrongdoers.

In Wilsher v Essex Area Health Authority a problem of causation arose in a different context. A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. The baby suffered a condition (abbreviated as RLF) of a kind which that breach of duty could have caused, and the breach of duty increased the risk of his suffering it. But there were a number of other factors which might have caused the injury. In the Court of Appeal ([1987] QB 730 at 771-772) Mustill LJ concluded a detailed review of McGhee by making this statement of principle:

“If it is an established fact that conduct of a particular kind creates a risk that injury will be caused to another or increases an existing risk that injury will ensue; and if the two parties stand in such a relationship that the one party owes a duty not to conduct himself in that way; and if the first party does conduct himself in that way; and if the other party does suffer injury of the kind to which the risk related; then the first party is taken to have caused the injury by his breach of duty, even though the existence and extent of the contribution made by the breach cannot be ascertained.”

Omitted from this statement is any reference to condition (5) in the composite question formulated in paragraph 2 at the outset of this opinion. It was on this omission that Sir Nicolas Browne-Wilkinson V-C founded his dissenting opinion (at page 779):

“To apply the principle in McGhee v National Coal Board [1973] 1 WLR 1 to the present case would constitute an extension of that principle. In the McGhee case there was no doubt that the pursuer’s dermatitis was physically caused by brick dust: the only question was whether the continued presence of such brick dust on the pursuer’s skin after the time when he should have been provided with a shower caused or materially contributed to the dermatitis which he contracted. There was only one possible agent which could have caused the dermatitis, viz, brick dust, and there was no doubt that the dermatitis from which he suffered was caused by that brick dust.

In the present case the question is different. There are a number of different agents which could have caused the RLF. Excess oxygen was one of them. The defendants failed to take reasonable precautions to prevent one of the possible causative agents (e.g. excess oxygen) from causing RLF. But no one can tell in this case whether excess oxygen did or did not cause or contribute to the RLF suffered by the plaintiff. The plaintiff’s RLF may have been caused by some completely different agent or agents, e.g. hypercarbia, intraventicular haemorrhage apnoea or patent ductus arteriosus. In addition to oxygen, each of those conditions has been implicated as a possible cause of RLF. This baby suffered from each of those conditions at various times in the first two months of his life. There is no satisfactory evidence that excess oxygen is more likely than any of those other four candidates to have caused RLF in this baby. To my mind, the occurrence of RLF following a failure to take a necessary precaution to prevent excess oxygen causing RLF provides no evidence and raises no presumption that it was excess oxygen rather than one or more of the four other possible agents which caused or contributed to RLF in this case.

The position, to my mind, is wholly different from that in the McGhee case [1973] 1 WLR 1, where there was only one candidate (brick dust) which could have caused the dermatitis, and the failure to take a precaution against brick dust causing dermatitis was followed by dermatitis caused by brick dust. In such a case, I can see the common sense, if not the logic, of holding that, in the absence of any other evidence, the failure to take the precaution caused or contributed to the dermatitis. To the extent that certain members of the House of Lords decided the question on inferences from evidence or presumptions, I do not consider that the present case falls within their reasoning. A failure to take preventative measures against one out of five possible causes is no evidence as to which of those five caused the injury.”

On the defendants’ appeal to the House, this passage in the Vice-Chancellor’s judgment was expressly approved by Lord Bridge of Harwich, who gave the only opinion, with which Lord Fraser of Tullybelton, Lord Lowry, Lord Griffiths and Lord Ackner concurred, and the appeal was allowed: [1988] AC 1074,1090-1092. It is plain, in my respectful opinion, that the House was right to allow the defendants’ appeal in Wilsher, for the reasons which the Vice-Chancellor had given and which the House approved. It is one thing to treat an increase of risk as equivalent to the making of a material contribution where a single noxious agent is involved, but quite another where any one of a number of noxious agents may equally probably have caused the damage. The decision of the Court of Appeal did indeed involve an extension of the McGhee principle, as Mustill LJ recognised: [1987] QB 730, 771-772. Lord Bridge was also, as I respectfully think, right to describe the observations of Lord Wilberforce on reversal of the burden of proof (see paragraph 20 above) as expressing a “minority opinion” (p 1087), if Lord Wilberforce was suggesting more than that the proof of an increased risk can found a prima facie case which casts an evidential burden on the defendant. But much difficulty is caused by the following passage in Lord Bridge’s opinion in which, having cited the opinions of all members of the House in McGhee, he said (p 1090):

“The conclusion I draw from these passages is that McGhee v National Coal Board [1973] 1 WLR 1 laid down no new principle of law whatever. On the contrary, it affirmed the principle that the onus of proving causation lies on the pursuer or plaintiff. Adopting a robust and pragmatic approach to the undisputed primary facts of the case, the majority concluded that it was a legitimate inference of fact that the defenders’ negligence had materially contributed to the pursuer’s injury. The decision, in my opinion, is of no greater significance than that and to attempt to extract from it some esoteric principle which in some way modifies, as a matter of law, the nature of the burden of proof of causation which a plaintiff or pursuer must discharge once he has established a relevant breach of duty is a fruitless one.”

This is a passage to which the Court of Appeal very properly gave weight ([2002] 1 WLR 1052, 1080, para 103), and in argument on these appeals counsel for the respondents strongly relied on it as authority for their major contention that a claimant can only succeed if he proves on the balance of probabilities that the default of the particular defendant had caused the damage of which he complains. As is apparent from the conclusions expressed in paragraph 21 above, I cannot for my part accept this passage in Lord Bridge’s opinion as accurately reflecting the effect of what the House, or a majority of the House, decided in McGhee, which remains sound authority. I am bound to conclude that this passage should no longer be treated as authoritative.

………

Policy

The present appeals raise an obvious and inescapable clash of policy considerations. On the one hand are the considerations powerfully put by the Court of Appeal ([2002] 1 WLR 1052 at 1080, para 103) which considered the claimants’ argument to be not only illogical but

“also susceptible of unjust results. It may impose liability for the whole of an insidious disease on an employer with whom the claimant was employed for quite a short time in a long working life, when the claimant is wholly unable to prove on the balance of probabilities that that period of employment had any causative relationship with the inception of the disease. This is far too weighty an edifice to build on the slender foundations of McGhee v National Coal Board [1973] 1WLR 1, and Lord Bridge has told us in Wilsher v Essex Area Health Authority [1988] AC 1074 that McGhee established no new principle of law at all. If we were to accede to the claimants’ arguments, we would be distorting the law to accommodate the exigencies of a very hard case. We would be yielding to a contention that all those who have suffered injury after being exposed to a risk of that injury from which someone else should have protected them should be able to recover compensation even when they are quite unable to prove who was the culprit. In a quite different context Lord Steyn has recently said in Frost v Chief Constable of Yorkshire [1999] 2 AC 455, 491 that our tort system sometimes results in imperfect justice, but it is the best the common law can do.”

The Court of Appeal had in mind that in each of the cases discussed in paras 14-21 above (Wardlaw, Nicholson, Gardiner, McGhee) there was only one employer involved. Thus there was a risk that the defendant might be held liable for acts for which he should not be held legally liable but no risk that he would be held liable for damage which (whether legally liable or not) he had not caused. The crux of cases such as the present, if the appellants’ argument is upheld, is that an employer may be held liable for damage he has not caused. The risk is the greater where all the employers potentially liable are not before the court. This is so on the facts of each of the three appeals before the House, and is always likely to be so given the long latency of this condition and the likelihood that some employers potentially liable will have gone out of business or disappeared during that period. It can properly be said to be unjust to impose liability on a party who has not been shown, even on a balance of probabilities, to have caused the damage complained of. On the other hand, there is a strong policy argument in favour of compensating those who have suffered grave harm, at the expense of their employers who owed them a duty to protect them against that very harm and failed to do so, when the harm can only have been caused by breach of that duty and when science does not permit the victim accurately to attribute, as between several employers, the precise responsibility for the harm he has suffered. I am of opinion that such injustice as may be involved in imposing liability on a duty-breaking employer in these circumstances is heavily outweighed by the injustice of denying redress to a victim. Were the law otherwise, an employer exposing his employee to asbestos dust could obtain complete immunity against mesothelioma (but not asbestosis) claims by employing only those who had previously been exposed to excessive quantities of asbestos dust. Such a result would reflect no credit on the law. It seems to me, as it did to Lord Wilberforce in McGhee [1973] 1 WLR 1 at 7, that

“the employers should be liable for an injury, squarely within the risk which they created and that they, not the pursuer, should suffer the consequence of the impossibility, foreseeably inherent in the nature of his injury, of segregating the precise consequence of their default.”

Conclusion

To the question posed in paragraph 2 of this opinion I would answer that where conditions (1)-(6) are satisfied C is entitled to recover against both A and B. That conclusion is in my opinion consistent with principle, and also with authority (properly understood). Where those conditions are satisfied, it seems to me just and in accordance with common sense to treat the conduct of A and B in exposing C to a risk to which he should not have been exposed as making a material contribution to the contracting by C of a condition against which it was the duty of A and B to protect him. I consider that this conclusion is fortified by the wider jurisprudence reviewed above. Policy considerations weigh in favour of such a conclusion. It is a conclusion which follows even if either A or B is not before the court. It was not suggested in argument that C’s entitlement against either A or B should be for any sum less than the full compensation to which C is entitled, although A and B could of course seek contribution against each other or any other employer liable in respect of the same damage in the ordinary way. No argument on apportionment was addressed to the House. I would in conclusion emphasise that my opinion is directed to cases in which each of the conditions specified in (1) – (6) of paragraph 2 above is satisfied and to no other case. It would be unrealistic to suppose that the principle here affirmed will not over time be the subject of incremental and analogical development. Cases seeking to develop the principle must be decided when and as they arise. For the present, I think it unwise to decide more than is necessary to resolve these three appeals which, for all the foregoing reasons, I concluded should be allowed.

For reasons given above, I cannot accept the view (considered in the opinion of my noble and learned friend Lord Hutton) that the decision in McGhee was based on the drawing of a factual inference. Nor, in my opinion, was the decision based on the drawing of a legal inference. Whether, in certain limited and specific circumstances, a legal inference is drawn or a different legal approach is taken to the proof of causation, may not make very much practical difference. But Lord Wilberforce, in one of the passages of his opinion in McGhee quoted in paragraph 20 above, wisely deprecated resort to fictions and it seems to me preferable, in the interests of transparency, that the courts’ response to the special problem presented by cases such as these should be stated explicitly. I prefer to recognise that the ordinary approach to proof of causation is varied than to resort to the drawing of legal inferences inconsistent with the proven facts.”

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Ryan v. Ireland

[1989] I.R. 178         

S.C. Finlay C.J.

“This is an appeal brought by the plaintiff against the order of the High Court made on the 5th November, 1986, by Keane J. which dismissed his claim for damages for negligence against the defendants. The plaintiff was a member of the Defence Forces serving as a volunteer with the United Nations Interim Force in Lebanon when, on the 18th April, 1979, he was seriously wounded by a mortar attack launched by hostile forces on a camp at Naquora in the Lebanon where the Irish soldiers, including the plaintiff, were on duty. He alleges that his wounds were due to the fact that he was negligently exposed to unnecessary risk by being placed in an unprotected billet close to a target area consisting of a machine gun, at a time when an attack was apprehended as being imminent. The case was withdrawn from the jury by the learned trial judge at the conclusion of the defendants’ evidence. The ground for that decision was that the plaintiff had failed to establish that the Irish Army rather than the United Nations was responsible on the occasion for his safety and welfare. It was against that decision that the plaintiff appeals.

……..

 Having regard to these decisions and the submissions made, two questions of law, in my view, arise. 1. Does the common law applicable in Ireland appear to create an immunity for the State in the circumstances of the instant case? 2. If it appears so to do, could such immunity be consistent with the provisions of the Constitution? In my view, the answer to both these questions must be in the negative.

 By virtue of the provisions of s. 4 of the Defence (Amendment) Act, 1960, a soldier serving with the United Nations Emergency Forces is deemed, for the purpose of the Defence Act, 1954, to be “on active service.” The consequence of this provision is largely related to discipline and the punishment for military offences. The provision does not, however, in any way, equate service with the United Nations with war, nor do considerations of the defence of the State arise in such service. No question of a dominant priority for the effectiveness of armed action against an enemy occurs.

 Article 28 of the Constitution provides the most ample and unrestricted powers to the Oireachtas to legislate to secure public safety and the preservation of the State in time of war, as there defined, or in time of armed rebellion. Nothing in the Constitution shall be invoked to invalidate such legislation expressed to be for such purposes.

 It is impossible, having regard to these provisions, to accept the application of a common law doctrine arising from the necessity to ensure the safety of the State during a period of war or armed rebellion, which has the effect of abrogating constitutional rights. In so far, therefore, as the principle apparently supporting some of the decisions to which we have been referred is the question of the dominant priority in regard to the defence of the State, such decisions would not appear to be applicable and cannot be applied to the question of service with the United Nations peacekeeping force.

 Section 111 of the Defence Act, 1954, provides certain conditions applicable,inter alia, to actions or other proceedings in respect of any alleged neglect or default in the execution of the Act. No argument was presented to the Court with regard to any possible relevance of this section, and these proceedings clearly do not come within it. It would appear, however, to me to be inconsistent with the existence of any common law principle giving immunity from suit for the purpose of preserving the discipline and morale of the Defence Forces.

 I, therefore, conclude that an immunity from suit by, or the negation of any duty of care to, a serving soldier in respect of operations consisting of armed conflict or hostilities has not been established as part of our common law. Even if it had, I conclude that in the blanket form which has been contended for it would be inconsistent with the guarantees by the State to respect, defend and vindicate the rights of the citizens contained in Article 40, s. 3, sub-ss. 1 and 2 of the Constitution. This ground of appeal must therefore fail.

Voluntary assumption of risk

 Having regard to the decision of this Court in  O’Hanlon v. Electricity Supply Board  [1969] I.R. 75, for the defendants to succeed in this defence it would be necessary for them to establish that the plaintiff by enlisting and by volunteering for United Nations service, had entered into a contract waiving his right to sue if injured by the negligence of his superior officers. No express contract to that effect is suggested and, while it is correct to say that by enlisting and subsequently volunteering the plaintiff accepted the risks inherent in the possibility of being involved in armed conflict, it cannot be implied that he accepted the risk of being unnecessarily exposed to injury by negligence. This ground of appeal also fails.

Prima facie evidence of negligence

 Having concluded that the plaintiffs superior officers (which must, of course, include all persons with authority over him) owed a duty of care to him, it is necessary before considering the detailed facts of this case to consider the general nature and, to an extent, the parameters of that duty. In broadest terms the duty can be stated to be to take such care for the safety of the plaintiff as is reasonable in all the circumstances of their relationship and the activity in which they were engaged. Quite clearly those circumstances in this case are unusual for they are the circumstances of military service in which the carrying out of the task allotted to the forces concerned could involve an unavoidable risk of death or serious injury. In such situations considerations of standards of care drawn from the experience of the workplace may be of little assistance. There could, I think, be no objective in a master and servant relationship which would justify exposing the servant to risk of serious injury or death other than the saving of life itself. In the execution of military service exposing a soldier to such risk may often be justified by the nature of the task committed to the forces concerned. Furthermore, there can, in relation to armed conflict, be many situations where those in authority must make swift decisions in effect in the agony of the moment. Mere proof of error in such decisions would not of itself establish negligence. Importance may be attached, I am satisfied, in regard to alleged negligence in a military situation, to the question as to whether the role of the soldier at the time of the alleged negligence is one of attack or defence, or, to put the matter in another way, whether he is engaged actively in armed operations or is only passively engaged in them. Where, as occurred in this case, the plaintiff was, whilst on guard duty, acting in a defensive role and was in effect standing by, I am satisfied that his commanding officer owed to him a duty to take such precautions as were reasonable and practical, having regard to the functions which as a member of the guard the plaintiff was obliged to perform, to try and reduce the risk of his being wounded or killed. If, it seems to me, the plaintiff has established as a prima facie matter, that one or more such precautions falling within that category were omitted at a time when the commanding officers concerned had time and opportunity to consider the proper protection of the plaintiff, he would have established negligence.

…..

The plaintiff asserts that there were places of safety in which he could have been put with as easy access to such duties of reinforcement of the guard or otherwise as might arise in the event of an attack. He asserts that further shelters could and should have been provided with ease by sandbagging or the creation of a bunker, and that the situation had been for a sufficient period sufficiently tense to warrant that as a reasonable precaution. He gave evidence that other forces in separate parts of the encampment belonging to the armies of other nations were better provided with shelter. He gave evidence that persons at the headquarters had shelters available, and evidence was given that a number of persons took shelter in shelters effectively protecting them against mortar fire at the time of the earlier attack. With that evidence which I have very shortly summarised, I am satisfied that there was a case to go to the jury of breach of the standard of care which I have outlined in this judgment and that, therefore, this ground of appeal must fail.

 I would, therefore, allow the plaintiff’s appeal against the withdrawal of the case from the consideration of the jury. I would disallow the defendants’ cross-appeal and I would direct a new trial of all issues in this case.

Hamilton P.

 I agree.

Walsh J.

 I agree.

Griffin J.

 I agree.

Hederman J.

 I agree.

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Fanning -v- Myerscough & Anor