A . C.

367

AND PRIVY COUNCIL.

PAEIS

APPELLANT;
AND

STEPNEY

BOBOUGH

COUNCIL .

RESPONDENTS.

Master and servantAccident to servantSafe system, of workServant

with only one eyeOther eye injuredBisk of greater injury
Master's obligation.
A workman employed as a garage hand had, to the knowledge of
his employers, only one good eye. In working on the back axle of a
vehicle to remove a U-bolt, which had rusted in, he struck it with
a hammer and a metal chip flew off seriously injuring his good eye.
He was not wearing goggles. He claimed damages against his
employers in respect of that injury on the ground that they were
negligent in failing to provide and require the use of goggles as
part of the system of work.
Held, that, in the case of a workman suffering, to the
employer's knowledge, from a disability which, though it did not
increase the risk of an accident occurring, did increase the risk of
serious injury if an accident should befall him, the special risk of
injury is a relevant consideration in determining the precautions
which the employer should take in the fulfilment of the duty of care
which he owes to the workman.
Held, further, (per Lord Normand, Lord Oaksey and Lord MacDermott, Lord Simonds and Lord Morton of Henryton dissenting)
that the evidence was sufficient to sustain the finding that the
employers were negligent in failing to provide this workman with
protective goggles for work of this description, and that ho was
entitled to damages.
Per Lord Simonds and Lord Morton of Henryton. The degree
of risk of any injury, whether to a one-eyed or a two-eyed man, did
not, on the evidence, demand this precaution by the employers.
Decision of the Court of Appeal, [1950] 1 K. B. 320, reversed.
APPEAL from the Court of Appeal (Lord Goddard, C.J.,
Asquith, L . J . , and Vaisey, J . ) .
The facts, as summarized from their Lordships' opinions, were
as follows:On May 13, 1942, the workman (the appellant)
entered the service of the employers (the respondent council) as
a garage hand in their cleansing department, where he worked
as a fitter's m a t e on the maintenance, repair and dismantling of
vehicles. H e was then, for all practical purposes, blind in his
left eye, owing to a p e r m a n e n t defect of its vision, due to his

* Present: LORD SIMONDS, LORD NORMAND,

MORTON OP HENRYTON and LORD MACDERMOTT.

LORD OAKSEY,

LORD

(E,)

1950
Oct. 26, 30;
NOV. 2;
Dec. 13.

368

HOUSE OF LORDS

[1951]

H. L. (B.) having suffered serious injury in May, 1941, as the result of

enemy action, but this fact was not known to the employers at
ig5Q
the time. On or about June 22, 1946, he was medically examined
PARIS

at the instance of his employers with a view to his becoming a

STBPNBX
member of the permanent staff and joining the superannuation
COUNCIL.
scheme. The examination revealed his disablement and also, a
further consequence of his war injuries, limited flexion and loss
of power at the right elbow. On July 22, 1946, the medical
officer reported to Charles Boden, the employers' public cleansing
officer, that the workman was not fit, on account of his disable
ment, to join the superannuation scheme, so that thereafter the
employers had notice of his disability. The workman was not
accepted as a member of the permanent staff, and on May 16,
1947, he was given two weeks' notice, expiring on May 30, 1947,
to terminate his employment.
On May 28, 1947, the workman was engaged in dismantling
the chassis of a gulley cleaner, a large type of vehicle generally
used by local authorities for cleansing and flushing street gulleys
and sewers. The vehicle, which had been brought into the garage
to be stripped for examination, was placed on a platform let into
a pit in the floor from which it was raised, after the vehicle had
been placed on it, to a height of about four or five feet above floor
level. When the platform was in this position the workman set
to work to strip the vehicle. To do this it was necessary for him
to stand with his eyes level with or slightly below the part at
which he was working. He first removed the nuts from the
U-bolt which held the springs of the rear axle in place and
cleared away the dirt from the U-bolt itself. He then, according
to the ordinary practice of the garage, used an ordinary steel
hammer to knock out the rusty bolt. While he was doing this a
fragment of metal was broken off and lodged in his right eye,
which in consequence became completely blind. The work which
the workman was doing on this occasion was similar to that which
he had been doing for the previous five years. Nothing in the
evidence suggested that his pre-accident disabilities had increased
the chances of the accident.
On August 8, 1947, the workman began an action against the
employers claiming damages in respect of their negligence and/or
breach of statutory duty. It was pleaded that it was their duty
to provide a reasonably safe system of working. The particulars
of negligence alleged by the workman included, inter alia, failure
" to provide him with and require him to wear suitable goggles
" to protect his eyes ". The employers put in a defence denying

A . C.

AND PRIVY COUNCIL.

369

both negligence and breach of duty and raising an alternative H. L. (E.)

plea of contributory negligence. This plea was not pursued nor
lg50
was the workman's claim in respect of breach of statutory duty,
which was abandoned at an early stage.

F r o m the evidence it appeared t h a t the employers supplied

STEPNEY
goggles with tinted glasses to protect the eyes of welders against
COUNCIL.
excessive light and t h a t they also supplied goggles for m e n
working on grinding machines, but they supplied no goggles for
men employed on the maintenance and repair of vehicles.
I n the workman's evidence the following passages occurred:
" Q . W h e n you were doing this work under the vehicles, did you
" find t h a t you got grit and dirt, dust and so forth in your hair
" and on your face? A . Y e s . Q . H a d you considered as to
" whether it was dangerous to do this sort of job without eye
" protection? A . W e l l , we were always working through years
" just doing the same thing. I t became natural to get in there
" without protection. Q.You did not think about i t ? A . W e
" had been doing it for years and never thought of it.
Q.Of
" course, if goggles had been provided and you had been told to
" use t h e m for this job because you might get something in your
"eye,
would you have used t h e m ?
A.Yes".
I n crossexamination the workman said that he had not complained of
dirt falling, particularly into his eyes.
Arnold Seeley, a fellow workman at the garage, said t h a t once,
when he was removing corroded rust from a wheel a piece of rust
flew off and caught him in the eye, but he managed to get it out.
H e could not say whether this was before or after the accident
now in question.
Lynskey, J., asked h i m : " Q . W e r e you off
" work at all with your eye? A . O h , no. Q . J u s t t h a t some" thing got into your eye ? A.Yes, and I got it out " .
Thomas Eeay, a motor mechanic employed in the same shop
as the workman, had previously had a small business of his own
in t h a t line and before t h a t had been an apprentice engineer.
I n cross-examination he said: " Q . W h e n you were your own
" employer, did you wear goggles for such work?
A.No.
" Q . F r o m t i m e to time did either you or other workmates have
" occasion to do precisely the same sort of job t h a t Mr. Paris
" was doing? A . Y e s . Q.Did you wear goggles? A . N o .
" Q.Or see others wearing goggles? A . N o " .
Captain Alexander Paterson, a consulting engineer called on
behalf of the workman, had had about thirty-two y e a r s '
experience of maintenance of mechanical transport.
H e said
t h a t he had had personal knowledge of about half-a-dozen eye

370

H. L. (E.)
1950
~
.
STEPNEY
COUNCIL.

HOUSE OP LORDS

[1951]

injuries caused by persons using a steel hammer as the workman

had used it, the first about six or seven years previously.
Lynskey, J., asked him: " Q.How many times have you seen
" a man wearing goggles when he was using a hammer to knock
" o u t a r u s t e d bolt in the course of dismantling a car? A.I
" should think on about a dozen occasions. That would be
" working underneath a vehicle ".
Charles Boden, the public cleansing officer of the employers,
had had experience of work in public cleansing departments of
various local authorities since 1913. " Q.Have you seen in
" work of this kind workmen wearing goggles to do such work?
" A.Not in my experience. I have never seen any mechanic
" working in any of the repair shops that I have visited during
'' that thirty-seven years wearing goggles doing that repair
' ; work ". He said he knew that parts, including bolts, got
rusted up and were hard to move. " Q.If you strike with a
" steel hammer another piece of steel, particularly a corroded
" piece of steel, you may chip particles of it off? A.It is
" possible ". Asked whether he had heard that Seeley " had got
" something in his eye ", he said: " It is a common occurrence
" with men in the cleansing department with stuff flying about
" on the vehicles ".
William Parker, until the previous February employed as
mechanical superintendent in the employers' cleansing depart
ment, said: " I have seen [men] underneath a vehicle with
" gggles o n and- preferably if they were laying on their backs
" . . . I can recollect with clarity one ". He assumed it was
" to'prevent dust falling in his eyes ".
Lynskey, J., gave judgment in favour of the workman for
5,2501. damages and costs. He held that the employers,
knowing that the workman had only one useful eye, were, in
the circumstances, under a duty to him to provide and require
the use of goggles, and that, since they had failed in that duty,
the workman had established negligence on their part. The
Court of Appeal set aside this judgment, holding that negligence
was not established. The workman appealed to the House of
Lords.
Beney, K.C., R. M. H. Everett and Fox-Andrews for the
appellant workman. The employers should have provided
goggles for the workman to protect his eyes. Their duty to him
arose out of the contract of service and was accordingly a duty
to exercise reasonable care not unnecessarily to expose him to

A . C.

AND PRIVY COUNCIL.

371

the risk of suffering the injurious results likely to follow an H. L. (B.)

accident to his sound eye, having regard to the fact that he
1950
was known by them to be a one-eyed man. The Court of
~
J

PARIS

Appeal were wrong in rejecting the fact of his only having one
eye
as a relevant matter to be taken into account and in ruling
J
.

it out altogether, for a tiny scratch on the cornea of his remaining

eye might have devastating results. In such a case as this all
the circumstances must be considered. Thus there might be
cases where persons were put onto work involving constant
scratches on the hands and if the question arose whether the
employer was under a duty to provide and require the use of
gloves the possibility that the use of gloves might seriously
impede the work should be weighed against the risk of injury,
but here it is not suggested that goggles would have impeded
the work.
The employer is bound to take account of the known
disabilities of the employee. If an employer knowingly employed
in a quarry a man with a piece missing from his skull he would
be bound to provide him with a head covering to protect him
from falling stones, though the stones would only bruise a normal
man. Since that particular employee would, by reason of his
disability run the risk of very serious injury, a prudent employer
would provide him with special protection. In such questions of
negligence the basis on which the duty is computed is foreseeability: see Smith v. Charles Baker & Sons (1). In Salmond
on Torts (10th ed.), p. 438, n. (q) " the seriousness of the injury
" risked " is set down as a factor to be taken into consideration
as well as "'the likelihood of the injury being in fact caused ".
The present case was considered in 1950 in 66 Law Quarterly
Eeview, pp. 9-10. There it was said that in the case of a ware
houseman storing a first folio of Shakespeare, the duty of care
was not the same as in the case of an ordinary book, and the risk
of greater injury was relevant. There is no such thing as a
duty of care " in the air ". An employer owes a special duty to
a man known to have only one eye. The duty to supply him
with goggles depends on the particular circumstances of the case
and the fact that there is no duty to supply a two-eyed man with
them is not conclusive, because of the degree of seriousness of
the injury risked. Thus in the case of a gas company taking gas
near a chest hospital where the patients would be likely to be more
gravely affected by an escape than other people, that fact would
(1) [1891] A. C. 325.

.
STEPNEY
BOBOUGH

COUNCIL.

372

H. L. (B.)
1950
pA
v.
BOKOUOH
COUNCIL.

HOUSE OF LORDS

[1951]

b e a f ac (; 0r j n assessing the degree of care to be taken by them:

see Northwestern Utilities Ld. v. London Guarantee and Accident
Co. Ld. (2) and Mackintosh v. Mackintosh (3). A man's
disability will render certain work unsuitable for him : see R. Hoe
* Co- Ld- v - Dirs (4)- B u t if > f o r example, the risk of total
loss of sight in the case of a particular man is such that certain
work is unsuitable for him, it may be made suitable by giving
him protection. In assessing the duty one ought to look right
to the end of the chain of causation to the actual result to the
particular man; otherwise there is a serious whittling away of the
protection to which he is entitled in industrial work. The duty
is to take care in all the circumstances of the case and the state
of the man is one of the circumstances to which a prudent
employer should have regard: see also Donoghue v. Stevenson (5); Bourhill v. Young (6) and Glasgow Corporation v.
Muir (7).
R. M. H. Everett following. This claim arises on a contract
of service and the duties flowing from it: see Wilsons & Clyde
Coal Co. Ld. v. English (8). So far the case has developed on
the lines that there is no question that this work was dangerous
for the ordinary man. Lynskey, J., treated this case as a fortiori
to the case of the man with two eyes. Had it been necessary to
decide it he might well have held that this was a dangerous
process for ordinary people.
H. Edmund Davies, K.C., and Alan Stevenson for the
respondent employers. The question in this case is as follows:
"Where a workman known by his employer to suffer from a
physical disability meets with an accident in no way attributable
to that disability, although the consequences are more serious
because of it, is the pre-accident knowledge of the employer
relevant to the question of liability? The answer is that it is not.
The employers need only take account of any disability that
increases the risk of an accident occurring; this is so although
the duty they owe is to the individual and not to a class. Here
they broke no duty which they owed to the workman and did
nothing negligent, for the one-eyed condition of the man played
no part in the accident. He was capable of doing and was doing
the full job of a two-eyed man. The mere possibility of an
accident is not enough to establish liability. In every case there
(2) [1936] A. C. 108, 126.
(3) 1864, 2 M . 1357, 1362.

(6) [1943] A. C. 92.

(7) [1943] A. C. 448.

(4) [1941] 1 K. B. 84, 39.

(8) [1938] A. C. 57, 88.

(5) [1932] A. C. 562.

A . C.

373

AND PRIVY COUNCIL.

is a chance of dust or rust getting into the eye of an employee.

The attitude of the workman to a particular job is relevant in
considering what is the scope and extent of the duty of the
employer; it is not the determining factor but it is an ingredient.
'

At no stage did this man experience or complain of any difficulty.

In the case of a two-eyed man the employers owed no duty at all
to supply goggles and there is no greater duty on them in the case
of a one-eyed man. The duty relied on here did not arise from
contract but from a relationship arising from contract. The
action is in respect of tort: see Baker v. James (9) and the Crown
Proceedings Act, 1947, s. 2, sub-s. 1 (6).
The propositions of the writer of the passage cited from the
Law Quarterly Keview are not supported by any authority.
When the question is whether due precautions have been taken
against fire there can be no difference between the case of a
warehouseman storing a bound volume of last year's " Punch "
and one storing a first folio of Shakespeare. On the argument
for the workman if the same fire destroyed both, the owner of
the latter might be able to recover while the owner of the former
might not. In the case of a pawnbroker's duty to prevent
pledges being stolen there would however be a distinction between
the precautions necessary to prevent cheap jewellery from being
stolen and those necessary to protect very valuable objects. The
passage from Holmes on The Common Law, p. 154, cited in the
Law Quarterly Eeview, should be read in its context. So should
the observations of Lord Wright in Northwestern Utilities Ld. v.
London Guarantee and Accident Co. Ld. (10).
In B. Hoe & Co. Ld. v. Dirs (11) the point was different from
that of the present case and there was no identity between the
facts: see per Goddard, L.J. (12). In Salmond on Torts (10th
ed.), p. 438, the second part of n. (q) is supported by no decided
case: see Winfield on Torts (3rd ed.), p. 398, n. (m) and (4th ed.),
p. 412, n. (p) and the cases cited thereunder and the essay on
Negligence by H. T. Terry in 29 Harvard Law Eeview, p. 40 at
p. 42.
The employers' propositions may be summarized as follows:
(a) What is contended for the workman is a completely novel
principle applicable to all branches of negligence and entirely
unsupported by reported decisions, (b) As Lord Wright said
(9) [1921] 2 K. B. 674, 681.
(10) [1936] A. C. 108, 126.

(11) [1941] 1 K. B. 84.

(12) Ibid. 42, 43.

- L - (E-)
1950
p ARIS
v.
RTPPNEY

BOBOUQH
COUNCIL.

374

H. L. (E.)
X950
~
v.
BOROUGH
COUNCIL.

HOUSE OP LORDS

[1951]

i n Bourhill v. Young (13), Lord Atkin's test in Donoghue v.

Stevenson (14) establishes the " general concept of reasonable
" foresight as the criterion of negligence or breach of duty ".
Observations such as those of Lord Dunedin in Morton v.
Wi
Uiam Dixon Ld. (15) need to be read in the light of that test.
(C) The mere possibility of accident is not enough to establish
liability, (d) If on the test of reasonable foresight it cannot be
said that an employer might have foreseen the likelihood of an
accident occurring at all, as in this case, the employer cannot be
liable simply because on an accident occurring the resulting
physical injuries in a particular case are far more serious owing
to a pre-existing physical infirmity, (e) On the basic hypothesis
it is impossible for the employer's pre-accident knowledge of his
servant's infirmity to have any bearing on his legal liability where,
as here, that infirmity played no part in the occurring of the
accident.
Beney, K.C., in reply. The fact that the workman was a
one-eyed man is to be taken into account; how much weight
should be attached to it is a matter of degree. If the risk of
injury is more than a mere outside possibility, it is a matter of
degree what precautions should be taken. The extent of the
possible damage to a one-eyed man is a factor to be considered.
The tests set out in the article cited from the Harvard Law
Eeview fit this case and would impose a liability on the employers
to provide goggles. If there was even a chance of one in a
hundred of an accident such as this occurring that might be
serious enough to a one-eyed man to impose liability on the
employers. The object of the duty imposed is to prevent injury,
not merely to prevent accident, and safeguarding should be
directed to minimizing injury as well as preventing it and the
gravity of the effect of the accident is a matter to be considered.
The judgment of Lynskey, J., covers the ground it should cover
and the House of Lords should not depart from his findings of
fact.
Their lordships took time for consideration.
Dec. 13. LORD SIMONDS stated the facts and continued :My
Lords, the single question is whether the appellant proved
negligence on the part of the respondents, a question answered
(13) [1943] A. C. 92, 107.
(14) [1932] A. C. 562, 580.

(15) 1909 S. C. 807, 809.

A . C.

AND PRIVY COUNCIL.

375

in the affirmative by Lynskey, J., in the negative by the Court H. L. (E.)

of Appeal.
1950
W h a t , then, was the negligence alleged by the appellant and
~
denied by the respondents? I t was t h a t it was the duty of the
v.
respondents to supply the appellant with suitable goggles for the
STEPNEY
protection of his eyes while he was engaged in such work and to
COUNCIL.
require him to use t h e m and that he failed in this duty. I i )0r< |'sJj^ Ild ,
can come at once to the crux of the m a t t e r . I n the s t a t e m e n t
of claim this duty is pleaded as a general duty owed by the
respondents to their employees engaged in this class of work:
the appellant did not allege a particular duty owed to him by
reason of his individual infirmity.
At what stage this plea
emerged is not very clear, but, having more t h a n once read
the judgment of Lynskey, J . , I share the view of the Lord
Chief Justice t h a t t h a t judge decided the case on the ground
t h a t a special duty was owed to him as a one-eyed m a n , and it
is clear t h a t in the Court of Appeal and in this H o u s e this was
the relevant plea. The first formal reason in the appellant's case
asserts t h e respondents' duty " to exercise reasonable care not
'' unnecessarily to expose the appellant to the risk of suffering t h e
" injurious results likely to follow an accident to his sound eye
" having regard to the fact t h a t he was known by t h e m to be a
" one-eyed m a n " .
The issue, m y Lords, is t h u s narrowed down and I will say
at once t h a t I do not dissent from t h e view t h a t an employer
owes a particular duty to each of his employees. His liability in
tort arises from his failure to take reasonable care in regard to
the particular employee and it is clear t h a t , if so, all t h e
circumstances relevant to t h a t employee m u s t be taken into con
sideration. I see no valid reason for excluding as irrelevant t h e
gravity of the damage which the employee will suffer if an
accident occurs, and with great respect to the judgments of the
Court of Appeal I cannot accept the view neatly summarized by
Asquith, L . J . (16) t h a t the greater risk of injury is, but the risk
of greater injury is not, a relevant circumstance. I find no
authority for such a proposition nor does it appear to m e to be
founded on any logical principle.
B u t , m y Lords, the gravity of the injury is only one of the
relevant circumstances and, while I cannot accept the judgment
of t h e Court of Appeal which is based on the view t h a t it is
irrelevant, unlike the majority of your lordships I find it
(16) [1950] 1 K. B. 320, 324.

376
H. L. (E.)
1950
~
,

HOUSE OP LORDS

[1951]

impossible to uphold the judgment of the trial judge. For he, I

think, ignored a consideration which was essential to a proper
determination of the duty of the respondents to the appellant.
If the gravity of the damage is relevant, so also is the seriousness
STEPNEY
0f the risk, and in the consideration of this question I think that
COUNCIL.
the judge fell into error. As I have already said, it is difficult to
, ."T-" . be sure what was in the mind of the judge, for, having stated
(correctly, as I think) that the respondents owed a duty to the
appellant individually, not to a class, he added: " In this case
" the real question is whether the employers in adopting this
" system and not providing or requiring the use of goggles for
" the workers on this system were taking reasonable care to
" provide a suitable system of work and provide a suitable
" plant ". But he then, without coming to any conclusion upon
this question, appears to decide in favour of the appellant on the
ground of his particular disability, for he concludes by saying:
" I am satisfied here that there was, so far as this particular
" plaintiff was concerned, a duty upon the employers to provide
" goggles and require the use of goggles as part of their system ".
Your lordships must be left in doubt what view the judge
held on what he had described as the real question, yet it was,
if not the real question, a matter of fundamental importance in
determining what was the nature of the risk which was run by
two-eyed and one-eyed men alike. It is a question which I will
now consider.
My Lords, a study of the evidence leaves me in no doubt that
an employer could not be held guilty of negligence if he did not
generally provide goggles for the use of his employees engaged in
this kind of work. The respondents' public cleansing officer,
Mr. Boden, to whom I have already referred, a witness of wide
experience, being asked, " Have you seen in work of this kind
" workmen wearing goggles to do such work? " replied, " Not in
" my experience. I have never seen any mechanic working in
" any of the repair shops that I have visited during that thirty " seven years wearing goggles doing that repair work ". A Mr.
Eeay, having served his time in the shops where he had neither
himself worn nor seen others wearing goggles for such work, set
up in business for himself. He was asked, " When you were
'' your own employer, did you wear goggles for such work ? '' and
be answered, " N o " . The appellant himself gave evidence,
which, so far as it bears on the obviousness of the risk and
corresponding duty, cannot be disregarded. I make nothing of
the fact that he did not complain that goggles were not provided,

A. 0.

377

AND PRIVY COUNCIL.

for he might well hesitate to do so. But being asked, " Have H. L. (E.)
" you considered as to whether it was dangerous to do this sort
1950
" of job without eye protection? ", he answered, " Well, we were
~
" always working through years just doing the same thing. It
v,
" became natural to get in there without protection ". Then he
STEPNEY
0

r
t

was asked, " You did not think about it? ", and answered, " We
" had been doing it for years and never thought of iu ". It is
true that he added that if goggles had been provided and he had
been told to use them, he would have done so. But this does
not appear to carry the matter any further. For the appellant, a
Captain Paterson said, in answer to the judge, that in the whole
of his experience he had about a dozen times seen a man wearing
goggles when he was using a hammer to knock a rusted bolt in
dismantling a car, adding that that would be when working under
a vehicle. It is not clear whether on these occasions the man
was wearing goggles for fear of a splinter of metal piercing his
eye or of grit or dirt falling into it. Mr. Parker, at the relevant
time the mechanical superintendent of the respondents' cleansing
department, while asserting that it was not normal practice
to wear goggles for the work in question, said he had seen men,
who were working underneath a vehicle, wearing goggles. That
was " preferably if they were laying on their backs ". Of the
single instance that he could distinctly remember he assumed
that the man was doing it to prevent dust getting into his eyes.
The evidence in regard to practice appears to me overwhelm
ing. But however unlikely such an event may be in such an
organized community as ours is today, it is possible that the
practice, however widespread, is carried on in disregard of risks
that are obvious. Let me then examine this aspect of the
evidence. There was undisputed evidence that, when a piece of
steel, and particularly of steel corroded with rust, is struck with
a steel hammer, chips or splinters of steel may fly off. It could
hardly be otherwise. But the question is what is the risk.
Captain Paterson, whom I have already mentioned, deposed to
having had personal knowledge of about half-a-dozen eye injuries
in the course of thirty-two years' experience, the first of them
having taken place some six or seven years before. A Mr. Seeley,
a fellow-employee of the appellant, had a somewhat similar
accident, though for him happily the consequences were trivial,
at a date which could not be fixed whether before or after the
appellant's accident. There is no reason to suppose that the
respondents knew or ought to have known of Captain Paterson's
experiences and there was nothing else.

BOROUGH

COUNCIL.
L o r d ~^ o n d 8

378

HOUSE OF LORDS

[1951]

H. L. (B.)
On this evidence, my Lords, no other conclusion can be
I960
reached t h a n t h a t the respondents were not under a duty to
provide goggles for their workmen engaged on this work, at least
_
if they were two-eyed men, and the reason why they were under
STEPNEY
no such duty was because the risk was not one against which a
COUNCIL.
reasonable employer was bound to take precautions. I t was from
-
this premise that the inquiry should proceed, whether, nevertheless, in the case of a one-eyed m a n they were bound to do so.
This clearly must depend on whether it should be manifest to
the reasonable employer t h a t in the case of a one-eyed workman
the possible damage in the event of accident was so much graver
than in the case of a two-eyed workman t h a t in the former case
he ought to take precautions though in the latter case he need
not. I see no justification for such a conclusion. A two-eyed
m a n might, if a splinter struck him in the eye, suffer an injury
which in any scale would be considered very grave. H e might
even suffer injury in both eyes either by immediate damage to
both or by the infection of one from the other. The eye which
was left to him might have perfect vision or might be defective
in a degree varying from the slightest imperfection to almost total
blindness. B u t , however grave, even calamitous, the damage
t h a t he suffered by the loss of one eye, the two-eyed m a n would
have no remedy.
The question therefore is not of a contrast
between damage in the case of one m a n trivial and in the case
of another very grave, but rather of an accident so serious in its
consequence to any man, whether one-eyed or two-eyed, that,
if the risk of it was appreciable, it would be the clear duty of
the employer to provide and enforce the use of proper precautions
against it. Yet the risk was not guarded against, for it was
regarded, and rightly regarded, as a risk which could reasonably
be run. And this was so whatever the posture which the work
m a n assumed in doing his job. Eisk cannot be assessed in terms
of scientific accuracy; one speaks of " conceivable " danger and
" p r o b a b l e " danger and the boundaries are blurred; one must,
I concede, have regard to the degree of injury t h a t an accident
may cause, a difficult task enough.
Taking these things into
consideration and starting, as the judge did not, from the fact
that, to use the familiar though inapt phrase, it was not part of
the system of work to provide goggles for two-eyed men because
the degree of risk did not demand t h a t precaution in a reasonable
employer, I do not think there was evidence on which it could
fairly be held t h a t the same reasonable employer was bound at his
peril to provide goggles for one-eyed men. For these reasons I

A . C.

AND PRIVY COUNCIL.

would dismiss this appeal. But as the majority of your lordships

are in favour of allowing the appeal, the judgment of Lynskey, J.,
upon liability must be restored and it will remain for the Court
of Appeal to deal with the appellant's appeal upon the quantum
of damages.

379
H. L. (E.)
^50
PABIS

STEPNEY
BOEdUGH
COTJNOIL.

LORD NORMAND. My Lords, this appeal involves a question

of general importance affecting the common law duty which an
employer owes to his employee. It is this: a workman is suffer
ing, to the employer's knowledge, from a disability which, though
it does not increase the risk of an accident's occurring while he is
at work, does increase the risk of serious injury if an accident
should befall him; is the special risk of injury a relevant con
sideration in determining the precautions which the employer
should take in fulfilment of the duty of care which he owes to
the workman?
The appellant's case is that for the sort of work that he was
doing the respondents ought to have supplied him with goggles
to protect his eyes. The respondents supplied goggles with tinted
glasses to protect the eyes of welders against excessive light and
they supplied goggles for men working on grinding machines.
But they supplied no goggles for men employed on the mainten
ance and repair of vehicles. There was evidence from each side
on the question whether it was usual for employers to supply
goggles to men employed in garages on that sort of work. The
weight of the evidence is decidedly against the appellant on that
point. On the other hand there is proof that individual men
working under a vehicle in the respondents' garage did occasionally
take a pair of goggles from a cupboard in the garage and wear
them to. protect the eyes, and that it was known to the respon
dents' responsible officials that dirt did sometimes get into the
men's eyes and also that when bolts were removed pieces of metal
might sometimes fly. Thus, according to the public cleansing
officer, it was a common occurrence that men got dirt into their
eyes, and one such accident is proved by the victim, but it is not
clear whether it took place before or after the accident to the
appellant. The appellant depones that dirt and grit fell on to his
face and into his hair when he was working under the vehicles,
but he never complained about this, and never thought of the
danger to his eyes.
Lynskey, J., in his judgment made no reference to the
evidence of the practice followed by other employers, nor did he
hold that the respondents ought to have supplied goggles to all

380

HOUSE OP LORDS

H. L. (E.)
1950
T
v.
BtToij8*

[1951]

the workers engaged on the same sort of work as the appellant.

After mentioning the risk of pieces of metal flying out, and the
position in which the men had to work with their eyes on a level
with or below the part of the vehicle at which they were working
(matters which apply to all the workmen), he emphasized the
COUNCIL,
importance of the appellant's having, to the respondents' knowLord Normand. le<lge> o m v o n e useful eye. His conclusion is: " T h e result is,
" in my view, in this case, on the evidence, . . . that I am
" satisfied here that there was, so far as this particular plaintiff
" was concerned, a duty upon the employers to provide goggles
" and require the use of goggles as part of their system ".
In the Court of Appeal the Lord Chief Justice said (17): '' The
" ground on which the judge has decided the present case, and
" on which Mr. Beney has endeavoured to uphold the judgment,
" is that because the plaintiff had only one eye the defendants
" owed him a greater duty than they owed to other employees,
" since the consequences of an accident would be so much more
" serious ". If I may respectfully say so, I think that the Lord
Chief Justice correctly interpreted the judgment.
The Court of Appeal reversed the judgment for reasons which
are very clearly stated by Asquith, L.J. (18): " T h e plaintiff's
" disability could only be relevant to the stringency of the duty
" owed to him if it increased the risk to which he was exposed.
'' A one-eyed man is no more likely to get a splinter or a chip in
" his eye than is a two-eyed man. The risk is no greater although
" the damage may be to a man with only one good eye than to
" a man with two good eyes. But the quantum of damage is one
' ' thing and the scope of duty is another. A greater risk of injury
" is not the same thing as a risk of greater injury; the first alone
" is relevant to liability ". Whether that is a correct view is of
considerable importance, for the ratio of the judgment will apply
not only where the duty of care arises from the relationship of
master and servant but in many other cases of alleged negligence.
It is not disputed that the respondents' duty of care is a duty
owed to their employees as individuals. But the respondents
contend that, though it is not a duty owed to the employees
collectively, they must take account in fulfilling the duty only
of any disability that increases the risk of an accident's occurring.
For that proposition no authority was cited and in my opinion it
is contrary to principle. The test is what precautions would
the ordinary reasonable and prudent man take. The relevant
(17) [1950] 1 K. B. 320, 322-8.

(18) Ibid. 324.

A . C.

381

AND PRIVY COUNCIL.

considerations include all those facts which could affect the con- H. L. (E.)
duct of a reasonable and prudent m a n and his decision on the
1350
precautions to be taken. Would a reasonable and prudent m a n
~
be influenced, not only by the greater or less probability of an
.
accident occurring, but also by the gravity of the consequences if
T^^OO*
a n accident does occur? I n Mackintosh v . Mackintosh (19) Lord
COUNCIL.
Neaves, considering a case of alleged negligence in muir-burning, L o r d Norm and.
said: " I t m u s t be observed t h a t in all cases the amount of care
" which a prudent m a n will take m u s t vary infinitely according
" to circumstances. No prudent m a n in carrying a lighted candle
" through a powder magazine would fail to take more care t h a n
" i f he was going through a damp cellar. The amount of care
" will be proportionate to the degree of risk run and to the
" magnitude of the mischief t h a t may be occasioned " . I n Northwestern Utilities Ld. v. London Guarantee and Accident
Co.
Ld. (20) Lord Wright, dealing with the risk of grave damage
which may be caused by gas escaping from a main, said: " The
" degree of care which t h a t duty involves m u s t be proportioned to
" the degree of risk involved if the duty should not be fulfilled " .
The learned editor of Salmond on Torts (10th ed.), p. 438, n. (q),
similarly s a y s : '' There are two factors in determining the mag" nitude of a r i s k t h e seriousness of the injury risked, and the
" likelihood of the injury being in fact caused " .
These are,
in my opinion, accurate s t a t e m e n t s both of the law and of the
ordinary m a n ' s conduct in taking precautions for his own safety.
" No reasonable m a n handles a stick of dynamite and a walking" stick in the same way " (Winfield on Torts (5th ed.), p . 412).
The court's task of deciding what precautions a reasonable and
prudent m a n would take in the circumstances of a particular case
may not be easy. Nevertheless the judgment of the reasonable
and prudent m a n should be allowed its common everyday scope,
and it should not be restrained from considering the foreseeable
consequences of an accident and their seriousness for the person
to whom the duty of care is owed. Such a restriction, if it might
sometimes simplify the task of the judge or jury, would be an
undue and artificial simplification of t h e problem to be solved.
If the courts were now to take the narrow view proposed by the
respondents, the cleavage between the legal conception of the
precautions which a reasonable and prudent m a n would take and
t h e precautions which reasonable and prudent m e n do in fact
take would lessen the respect which the administration of justice
(19) 1864, 2 M. 1357, 1362-3.
[1951] A. C.

(20) [1936] A. C. 108, 126.

26

382
H. L.. (B.)
.1960
.
STEPNEY
COUNCIL.
Lord l^Tmanci.

. HOUSE OP LORDS

[1951]

ought to command. To guard against possible misunderstanding

it may be well to add here t h a t the seriousness of the injury or
damage risked and the likelihood of its being in fact caused may
not be the only relevant factors. For example, Asquith, L . J . ,
j n Daborn v. Bath Tramways Motor Co. Ld. (21), pointed out
t h a t it is sometimes necessary to take account of the consequence
of

not

assuming a risk.
I am unable, therefore, to reject the conclusion arrived at by
Lynskey, J., on the ground on which the Court of Appeal pro
ceeded. B u t t h a t does not end the appeal. For there remains
the question whether, assuming t h a t the fact t h a t the appellant
was to the knowledge of the respondents a one-eyed m a n was a
relevant circumstance, the judgment of Lynskey, J . , was in
accordance with the evidence. The kind of evidence necessary to
establish neglect of a proper precaution was considered in Morton
v . William Dixon Ld. (22) by Lord President Dunedin. T h a t
was an action by a miner against his employers alleging negligence
in failing to take precautions against the fall of coal from the top
of the shaft into the space between the side of the shaft and the
edge of the cage. I t was, of course, a Scotch case, b u t in my
opinion there is no difference between the law of Scotland and
the law of England on this point. The Lord President said (23):
" Where the negligence of the employer consists of what I may
" call a fault of omission, I think it is absolutely necessary t h a t
" the proof of t h a t fault of omission should be one of two kinds,
" either to show t h a t the thing which he did not do was a thing
" which was commonly done by other persons in like circum" stances, or to show t h a t it was a thing which was so obviously
" wanted t h a t it would be folly in anyone to neglect to provide
" it " . The rule is stated with all the Lord President's trenchant
lucidity. I t contains an emphatic warning against a facile finding
t h a t a precaution is necessary when there is no proof t h a t it is
one taken by other persons in like circumstances. B u t it does
not detract from the test of the conduct and judgment of the
reasonable and prudent man. If there is proof t h a t a precaution
is usually observed by other persons, a reasonable and prudent
m a n will follow t h e usual practice in the like circumstances.
Failing such proof the test is whether the precaution is one which
the reasonable and prudent m a n would think so obvious t h a t it
was folly to omit it.
(21) [1946] 2 All E. E. 333, 336.
(22) 1909 S. C. 807.

(23) Ibid. 809.

A . C.

AND PRIVY COUNCIL.

383

In the present case, as I have already said, the balance of H. L. (E.)

the evidence inclines heavily against the appellant on the question
ig50
of the usual practice of others. But that evidence necessarily
dealt with the normal case when the employee suffers from no
v
special disablement. In the nature of things there could scarcely
STEPNBY
be proof of what was the usual precaution taken by other emcouNoit.
ployers if the workman had but one good eye. Since Lynskey, J.,
did not deal with the evidence on practice and made no finding
about the precautions which should be taken in the ordinary case
and without reference to individual disability, I think that his
judgment is essentially a finding that the supply of goggles was
obviously necessary when a one-eyed man was put to the kind
of work to which the appellant was put.
The facts on which the judge founded his conclusion, the
known risk of metal flying when this sort of work was being done,
the position of the workman with his eyes close to the bolt he was
hammering and on the same level with it or below it, and the
disastrous consequences if a particle of metal flew into his one
good eye, taken in isolation, seem to me to justify his conclusion.
But even for a two-eyed man the risk of losing one eye is a very
grievous risk, not to speak of the foreseeable possibility that both
eyes might be simultaneously destroyed, or that the loss of one
eye might have as a sequel the destruction of vision in the other.
It may be said that, if it is obvious that goggles should have been
supplied to a one-eyed workman, it is scarcely less obvious that
they should have been supplied to all the workmen, and therefore
that the judgment rests on an unreal or insufficient distinction
between the gravity of the risk run by a one-eyed man and the
gravity of the risk run by a two-eyed man. I recognize that the
argument has some force but I do not assent to it. Blindness is
so great a calamity that even the loss of one of two good eyes
is not comparable; and the risk of blindness from sparks of metal
is greater for a one-eyed man than for a two-eyed man, for it is
less likely that both eyes should be damaged than that one eye
should, .and the loss of one eye is not necessarily or even usually
followed by blindness in the other.
What precautions were needed to protect two-eyed men, and
whether it could properly be held, in the teeth of the evidence of
the usual practice, that goggles should have been supplied for
them were not questions which the judge had necessarily to
decide. Therefore, though there might have been advantages of
lucidity and cogency if the precautions needed for the protection
of the two-eyed men had first been considered and the increased

384

HOUSE OP LORDS

[1951]

H. L. (E.) risk of damage to which the one-eyed man is exposed had been
expressly contrasted, I would allow the appeal and restore the
1950
judgment of Lynskey, J.
PARIS

r.
STEPNEY
BOROUGH

LORD OAKSEY. My Lords,

J US J. (delivered by my noble and

I agree entirely with the opinion

learned friend Lord Normand.
The duty of an employer towards his servant is to take
reasonable care for the servant's safety in all the circumstances
of the case. The fact that the servant has only one eye, if that
fact is known to the employer, and that if he loses it he will be
blind, is one of the circumstances which must be considered by
the employer in determining what precautions if any shall be
taken for the servant's safety. The standard of care which the
law demands is the care which an ordinarily prudent -employer
would take in all the circumstances. As the circumstances may
vary infinitely it is often impossible to adduce evidence of what
care an ordinarily prudent employer would take. In some cases,
of course, it is possible to prove that it is the ordinary practice
for employers to take or not to take a certain precaution, but in
such a case as the present, where a one-eyed man has been
injured, it is unlikely that such evidence can be adduced. The
court has, therefore, to form its own opinion of what precautions
the notional ordinarily prudent employer would take. In the
present case the question is whether an ordinarily prudent
employer would supply goggles to a one-eyed workman whose job
was to knock bolts out of a chassis with a steel hammer while
the chassis was elevated on a ramp so that the workman's eye
was close to and under the bolt. In my opinion Lynskey, J.,
was entitled to hold that an ordinarily prudent .employer would
take that precaution. The question was not whether the precau
tion ought to have been taken with ordinary two-eyed workmen
and it was not necessary, in my opinion, that Lynskey, J., should
decide that questionnor did he purport to decide it, although it
is true that he stated the question in one sentence too broadly
as " whether the employers in adopting this system and not
. '' providing or requiring the use of goggles for the workers on this
system were taking reasonable care to provide a suitable system
" of work and to provide a suitable plant ".
The risk of splinters of steel breaking off a bolt and injuring a
workman's eye or eyes may be and, I think, is slight and it is
true that the damage to a two-eyed workman if struck by a
splinter in the eye or eyes may be serious, but it is for the judge
at the trial to weigh up the risk of injury and the extent of the

A . ,C.

AND PRIVY COUNCIL.

385

damage and to decide whether, in all t h e circumstances, including H. L. (E.)

the fact t h a t t h e workman was known to be one-eyed and might
1950
become a blind m a n if his eye was struck, an ordinarily prudent
~
employer would supply such a workman with goggles. I t is a
_
simple and inexpensive precaution t o take to supply goggles, and
STEPNEY
a one-eyed m a n would not be likely, as a two-eyed m a n might be,
COUNCIL.
to refuse to wear t h e goggles. Lynskey, J . , appears to m e to j ^ J - ^
have weighed t h e extent of t h e risk and of t h e damage to a oneeyed m a n and I am of opinion t h a t his judgment should be
restored.
LORD MORTON OF HENRYTON.

My Lords, it cannot be doubted

that there are occupations in which t h e possibility of an accident

occurring to any workman is extremely remote, while there are
other occupations in which there is constant risk of accident t o
the workmen. Similarly, there are occupations in which, if an
accident occurs, it is likely to be of a trivial nature, while there
are other occupations in which, if an accident occurs, t h e results
to t h e workman m a y well be fatal. W h e t h e r one is considering
the likelihood of an accident occurring, or t h e gravity of t h e
consequences if an accident happens, there is in each case a
gradually ascending scale between t h e two extremes which I have
already mentioned.
I n considering generally t h e precautions which an employer
ought t o take for t h e protection of his workmen it m u s t , in m y
view, be right t o take into account both elements, t h e likelihood
of an accident happening and t h e gravity of t h e consequences.
I take as an example two occupations in which t h e risk of an
accident taking place is exactly e q u a l ; if an accident does occur
in t h e one occupation, t h e consequences to t h e workman will be
comparatively trivial; if an accident occurs in t h e other occupa
tion t h e consequences to t h e workman will be death or mutilation.
Can it be said t h a t t h e precautions which it is t h e duty of an
employer to take for t h e safety of his workmen are exactly t h e
same in each of these occupations? My Lords, t h a t is not m y
view. I think t h a t t h e more serious t h e damage which will
happen if an accident occurs, t h e more thorough are t h e
precautions which an employer m u s t take.
If I a m right as to this general principle, I think it follows
logically t h a t if A and B , who are engaged on t h e same work,
r u n precisely t h e same risk of an accident happening, but if t h e
results of an accident will be more serious to A t h a n to B ,
precautions which are adequate in t h e case of B may not be

386

H.: L. (E.)
1950
~
v,
B8OH

HOUSE OP LORDS

[1951]

adequate in the case of A, and it is a duty of the employer to

take such additional precautions for the safety of A.as may be
reasonable. The duty to take reasonable precautions against
injury is one which is owed by the employer to every individual
workman.

In the present case it is submitted by counsel for the appellant

Lord Morton that although the appellant ran no greater risk of injury than
' the other workmen engaged in the maintenance work, he ran a
risk of greater injury. Counsel points out that an accident to
one eye might transform the appellant into a blind man, and this
event in fact happened. A similar accident to one of his
comrades would transform that comrade into a one-eyed man,
a serious consequence indeed but not so serious as the results
have been to the appellant.
My Lords, the Court of Appeal thought that the one-eyed
condition of the appellant, known to his employers, was wholly
irrelevant in determining the question whether the employer did
or did not take reasonable precautions to avoid an accident of
this kind. I do not agree. Applying the general principle which
I have endeavoured to state, I agree with your Lordships and with
Lynskey, J., that the condition of the appellant was a relevant
fact to be taken into account.
There still remains, however, the question whether the judge
rightly came to the conclusion that there was, " so far as this
" particular plaintiff was concerned, a duty upon the employers
'' to provide goggles and require the use of goggles as part of their
" system ". He thought, as I read his judgment, and as the
Court of Appeal read it, that there was no duty upon the
employers to provide goggles' for two-eyed men who were
employed on the same work as the appellant. With this latter
view the Court of Appeal agreed, and I take the same view.
The evidence given at the trial has already been analysed by
my noble and learned friend on the woolsack, and I shall only
add that, although Captain Paterson had knowledge of about
half-a-dozen eye injuries in the course of thirty-two years'
experience, he did not say whether any of them was of a serious
nature. The only other eye injury deposed to was that of
Mr. Seeley. He was asked by the judge " Were you off work at
" all with your eye? ", and he answered " Oh, no ". " Just that
" something got into your eye? " said the judge. " Yes, and I
" got it out " replied the witness.
My Lords, is it really possible to draw a distinction, on the
COUNCIL.

A . C.

AND PRIVY COUNCIL.

'S 8 7

facts of the present case, between a two-eyed man and a one- H- L. (B.)
eyed man? If the employers were not negligent in failing to
1950
provide goggles for two-eyed men doing this work, during all the
~
years prior to this accident, did they become negligent, so far as
v.
regards the appellant alone, as from July 22, 1946, when BQBODGH
Mr. Boden, their public cleansing officer, became aware for the COUNCIL.
first time that the appellant had practically no vision in his left Lord Morton
eye? The loss of an eye is a most serious injury to any man,
and I can only see two alternatives in this case: (a) that the
employers were negligent throughout in failing to provide goggles
and insist on their use by all men employed in this type of work;
or (b) that the risk of an eye injury to any man was so remote
that no employer could be found negligent in failing to take these
precautions.
My Lords, I think the first alternative must be rejected.
Applying the test laid down by Lord Dunedin in Morton v.
William Dixon Ld. (24), already quoted by my noble and learned
friend Lord Normand, I cannot find that the provision of goggles
" was a thing which was commonly done by other persons in like
" circumstances ". The evidence is conclusive to the contrary.
Nor does the evidence support the view that it was " a thing
" which was so obviously wanted that it would be folly in any" one to neglect to provide it ". Although I recognize that the
one-eyed condition of the appellant was a factor to be taken into
account, I think alternative (b) is correct. I cannot reach the
conclusion that a one-eyed man, but not a two-eyed man, has a
remedy against the employer for so serious an injury. I think it
must be both or neither, and on the facts of the present case I
agree with the conclusion of the Court of Appeal, that the
evidence does not establish any negligence on the part of the
respondents.
I would dismiss the appeal.
LORD MACDERMOTT [after stating the facts: ] My Lords, the
decision of the Court of Appeal appears to have been based on
two conclusionsfirst, that on the evidence there was no duty on
the respondents to provide goggles for the. ordinary, two-eyed
workman engaged on this work; and, secondly, that there was
therefore no such duty on the respondents in respect of the
appellant because, though the consequences for him were more
(24) 1909 S. C. 807, 809.

388

HOUSE OF LORDS

[1951]

H. L. (E.) serious, the risk of the accident occurring was no greater in his
I960
case than it was in the case of his two-eyed fellows.
~
The proposition underlying the second conclusion is succinctly
v.
stated by Asquith, L.J., in a passage which, I believe, represented
tne unan mous
BORODOH
i
opinion of the court. It reads as follows (25):
COUNCIL.
'' The plaintiff's disability could only be relevant to the stringency
Lord
" of the duty owed to him if it increased the risk to which he
' " was exposed. A one-eyed man is no more likely to get a
" splinter or a chip in his eye than is a two-eyed man. The risk
" i s no greater although the damage may be greater to a man
with only one good eye than to a man with two good eyes. But
" the quantum of damage is one thing and the scope of the
" duty is another.
A greater risk of injury is not the same
" thing as a risk of greater injury; the first alone is relevant to
" liability ".
This view of the law raises a question of far-reaching
importance for, if sound, it must, in my opinion, pervade, if not
the whole domain of negligence, at least a very large part of it.
It was, however, stated only in connexion with the duty of care
imposed on an employer of labour and it will be sufficient for
present purposes to consider it in relation to that particular
branch of the law and without engaging on the wider question of
its compatibility with the concept of reasonable care.
My Lords, the general nature of the obligation resting upon an
employer regarding the safety of those who work for him under a
contract of service is not in dispute. It is, in the words of
Lord Wright in Wilsons & Clyde Coal Co. Ld. v. English (26),
" to take reasonable care for the safety of his workmen ". In
Smith v. Charles Baker & Sons (27), Lord Herschell described
the same duty somewhat more fully but without any material
difference when he said: " I t is quite clear that the contract
" between employer and employed involves on the part of the
" former the duty of taking reasonable care to provide proper
" appliances, and to maintain them in a proper condition, and so
" to carry on his operations as not to subject those employed by
" him to unnecessary risk ". It is no less clear that the duty
is owed to the workman as an individual and that it must be
considered in relation to the facts of each particular case.
Now, if the law is as stated by the Court of Appeal, it means
that this duty of reasonable care can be discharged without regard
(25) [1950] 1 K. B. 320, 324.
(26) [1938] A. C. 57, 84.

(27) [1891] A. C. 325.

A . C.

AND PRIVY COUNCIL.

389

to the gravity of the harm which is likely to fall upon the workman
concerned. Eeasonable care is, indeed, to be taken in respect
of risk that may cause injury; but the requisite degree of care is
determinable irrespective of the likely consequences for the
particular workman. In short, where the risk of an injuryproducing event is the same for all, the standard of reasonable
care is the same towards all, and the foreseeable extent of the

H. L. (B.)
1950
v_

STBPNEX
COUNCIL.

;7
Lord

resulting injury in any given case becomes irrelevant to the issue MacDermott.
of liability.
My Lords, this doctrine finds no support in authority and is,
in my opinion, entirely alien to the character of the relationship
to which it has been applied by the. Court of Appeal. For work
man and employer alike such expressions as " risk ", " danger "
and " safety " would lose much of their everyday meaning if
divorced from the results to life and limb. In this sphere they
must surely, in the very nature of things, connote consequences
as well as causes. If a bricklayer says that the risk is greater at
the top of a building he means that a slip there is more likely to
bring him death or injury, and if he says that a particular form
of scaffolding is dangerous or not safe he means not merely that
it may fall, but that those who use it may get hurt. "What may
happen to those engaged is no less important than how it may
happen. It is the consequences that necessitate the precautions
in this field. The habitual association of cause and effect in
workshop and factory is perhaps nowhere more clearly recognized
than in the nature of some of the safeguards in common use.
Suitable goggles, for example, must be worn by those employed
at grinding machines. The particles that fly upward may strike
the cheeks as readily as the eyes, but the eyes are protected and
the cheeks are not, because the eyes are delicate organs and the
consequences of their being struck are likely to be serious. Again,
special precautions to prevent electric leakage are the usual
practice in places like wash-houses where those working are
well " earthed " and a shock might prove fatal. Instances of this
sort could be multiplied, but I think it is enough to say that the
employer's duty to take reasonable care for the safety of his
workmen is directedand, I venture to add, obviously directed
to their welfare and for that reason, if for no other, must be
related to both the risk and the degree of the injury. If that
is so and if, as was very properly conceded, the duty is that owed
to the individual and not to a class, it seems to me to follow that
the known circumstance that a particular workman is likely to
suffer a graver injury than his fellows from the happening of a
[1951] A. C.

27

390

HOUSE OP LORDS

[1951]

H. L. (E.) given event is one which must be taken into consideration in

J950
assessing the nature of the employer's obligation to that
workman.
PARTS

v.

For these reasons I am of opinion that the Court of Appeal

g a n d t h ^ Lynskey, J., was right regarding the relevance
of the respondents' knowledge of the appellant's eye defect. It
Lord
remains to consider whether the trial judge's finding of negligence
' is justified on the evidence. As I read his judgment he did not
- find that the respondents were under a duty to provide goggles
for other workmen engaged on the same work who had, or might
be taken as having, the use of both eyes. Whether the evidence
would have warranted such a finding is, I think, a question of
some difficulty. On the one hand, the whole trend of the testi
mony indicates that it was not the general practice in garages
and establishments of the kind to provide protection for the eyes
in such circumstances. On the other, it is clear that the wearing
of goggles would not have hampered the work in question and
there is, I think, material from which it might reasonably be
inferred that, for men working underneath these vehicles and in
close proximity to the parts they were stripping, the provision of
suitable goggles would have been a sensible and obvious way of
keeping falling dirt and flying particles out of their eyes. I
incline to the view that a jury weighing these considerations
would not be perverse in finding that it was the duty of the
employers to make such provision.

BOBOBOH
COUNCIL.

w a s wron

The point, however, is a balanced one and I will proceed on

the assumption that the Court of Appeal was right on this aspect
of the case and that the respondents were not under any general
obligation of this kind. On that assumption, the question then
arises whether the additional element, the fact that the respon
dents knew that the appellant was a one-eyed man, made it
proper to arrive at a different conclusion regarding their duty to
him. In my opinion it did. Not merely was the risk of this sort
of accident occurring to those engaged upon this work known; it
was also known that that risk was fraught with much graver
consequence for the appellant than for his two-eyed companions.
His chances of being blinded were appreciably greater and blind
ness is an affliction in a class by itself which reasonable men will
want to keep from those who work for them if there are
reasonable precautions which can be taken to that end. To my
mind whatever may be said of the respondents' duty to their

A. C.

AND PRIVY COUNCIL.

391

two-eyed employees, there was ample evidence t o sustain t h e H. L. (E.)

view t h a t they failed in their duty t o t h e appellant. I would
ig50
allow t h e appeal and restore t h e finding as t o liability of t h e

Judge-

BIS
Appeal

allowed.

STEPNEY
BOROUGH
COUNOIL.

Solicitors: Thomas

V. Edwards;

W. H. Thompson.

[HOUSE OF LORDS]

H. L. (E.)*

1950
PRESTON-JONES

APPELLANT;

NOV. 6, 7;
Dec

AND

PEESTON-JONES

li

RESPONDENT.

Husband and wifeDivorceAdulteryBirth

of
childHusband's
absence for period between 360 and 186 days before birthChild
apparently full-time and labour normalPeriod between coition
and conceptionAbsence of medical evidenceJudicial notice of
facts of naturePossibility of birth 360 days after coition.
On a husband's petition for divorce on the ground of his wife's
adultery, which she denied, it was established by evidence that
during the period between 186 and 360 days before the birth of a
child to her he had been continuously absent abroad, and that
there had been no opportunity for intercourse between them.
Evidence given by the wife that her husband had visited her about
nine months before the birth was rejected by the court. The child
was normally delivered and appeared a normal, healthy, full-timechild. The allegation of adultery was based solely on the circum
stances of its birth. A general medical practitioner, giving evidence
on behalf of the husband, said, i n answer to questions by the judge,
that in the vagina spermatozoa would not live more than a few
days at the most, and that they would be unlikely to get into
the uterus; he further said that he could not give an opinion as
to the maximum possible interval between the time of sexual inter
course and the time of impregnation of the ovum, but that he
thought it would be a few hours; he added that he had never
studied that aspect. The judge said that he was not satisfied by
the evidence beyond reasonable doubt that adultery had been com
mitted. The Court of Appeal having ordered a new trial, the
husband appealed to the House of Lords.
* Present -. LOUD ISIMONDS, LOUD NORMAND, LORD OAKSEY, LORD
MORTON OF HBNEYTON and* LORD MACDERMOTT.