Mist v Toleman & Sons (a Firm)

 

Mist v Toleman & Sons (a Firm)

HEALTH; Health and safety at work: INDUSTRY: TORTS; Statutory Duty

COURT OF APPEAL

MACKINNON, TUCKER AND BUCKNILL LJJ

6, 7 DECEMBER 1945

Factories – Statutory duty – Breach – Health regulation for removal of dust – Tubercular condition of workman becoming active – Whether caused by breach

of regulation – Onus of proof – Factories Act, 1937 (c 67), s 47(1).

M was employed by T & Sons, on a spindle machine in their factory. The work on which he was engaged (ie, making heels for shoes) was one in which a

great deal of dust was given off, and proper exhaust appliances were not “provided and maintained, as near as possible to the point of origin of the dust” as

required by the Factories Act, 1937, s 47(1). During the time that he was working in the factory, M coughed badly and began to cough up blood, and, after

about a month, he was found to have tuberculosis. On the medical evidence, his lungs had been infected with the microbe of the disease at least 6 months

before he entered T & Sons’ factory, but it was contended on behalf of M that the alteration of the potentially tubercular condition to an active tubercular

condition was due to the dust given off the machine on which he was working, and that T & Sons were liable to him in damages by reason of the breach of

their statutory duty under sect 47(1) of the 1937 Act. According to medical evidence, exertion was one cause of inherent tuberculosis becoming active; dust in

itself was not a cause, although coughing (which could be due to dust in the atmosphere) would be a cause. While employed in the factory, M had led an

active life apart from his work in the factory and was a member of the Home Guard. It was contended by T & Sons that there was no evidence that M’s

tuberculosis had become active as a result of their breach of the Factories Act, 1937, s 47(1), since it could have become so by any exertion. But on behalf of

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M it was further contended that, since there had been a breach of a statutory regulation by T & Sons, and since his tubercular condition could have become

active as a result of that breach, the onus of proving that the disease was not the result of the breach was on T & Sons, the employers:—

Held – (i) Where there has been a breach of a statutory regulation and a workman is injured in a way that could result from such a breach, the onus of proving

that the injury is not due to the breach, is on the employers, only when that particular injury is the only one which the statutory regulation in question is

designed to guard against or to prevent.

(ii) where, however, the injury is not the very class of accident which the regulation was designed to prevent, the onus is on the workman.

Vyner v Waldenberg Brothers Ltd distinguished.

(iii) the object of sect 47(1) of the 1937 Act was to prevent not merely tuberculosis but every uncomfortable, offensive or injurious effect of dust. The

onus was, therefore, on the workman to prove that the breach of the regulation was the cause of his disease.

(iv) [Bucknill LJ dissenting] on the facts of the case and in view of the medical evidence, M had failed to discharge the onus of proving that his

tuberculosis had become active by reason of the breach of sect 47(1) by the employers.

Notes

It is argued in this case that wherever there is a breach of the provisions of the Factories Act, and a workman is injured in a way which could result from the

breach, the onus of proof shifts to the employer to show that the breach was not the cause. Sect 47 has not before been construed, and the court refuses to

apply the decisions on the fencing provisions to a case of tuberculosis since it is not, in the words of Goddard LJ, in Lee v Nursery Furnishings Ltd, “the very

class of accident that the regulations are designed to prevent.” Sect 47 is designed to prevent the injurious effects of dust and fumes, but quiescent tuberculosis

might become active by reason of many things other than coughing. The onus of proof in those cases is on the workman.

For the Factories Act, 1937, s 47(1), see Halsbury Statutes, Vol 30, p 238.

Cases referred to in judgments

Vyner v Waldenberg Bros Ltd [1945] 2 All ER 547, 173 LT 330.

Lee v Nursery Furnishings Ltd [1945] 1 All ER 387, 172 LT 285.

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Appeal

Appeal by the workman from a decision of Uthwatt J, sitting as an additional judge of the King’s Bench Division, Middlesex, on 10 July 1945. The facts are

fully set out in the judgment of Mackinnon LJ.

S R Edgedale for the appellant.

F W Beney KC, R O L Armstrong-Jones, and Gilbert Dare for the respondents.

7 December 1945. The following judgments were delivered.

MACKINNON LJ. This is an appeal from a judgment of Uthwatt J, sitting as an additional judge of the King’s Bench Division. It is a claim by the plaintiff

against the defendants for damages based upon a breach by the defendants of the statutory provision of the Factories Act, 1937, s 47(1). As in other cases, it is

the duty of the plaintiff to establish his cause of action. Although the judge evidently sympathised with the plaintiff, he finally said that he was not satisfied

that the plaintiff had discharged the onus of proof by establishing his case, and, in the result, he gave judgment for the defendants.

The Factories Act, 1937, s 47(1) provides:

‘In every factory in which, in connection with any process carried on, there is given off any dust or fume or other impurity of such a character and to

such extent as to be likely to be injurious or offensive to the person employed, or any substantial quantity of dust of any kind, all practicable measures

shall be taken to protect the persons employed against inhalation of the dust or fume or other impurity and to prevent its accumulating in any workroom,

and in particular, where the nature of the process makes it practicable, exhaust appliances shall be provided and maintained, as near as possible to the

point of origin of the dust …’

The plaintiff began work with the defendants towards the end of December 1943. Before going to them he had been employed by another firm in a

factory where the organisation of the factory was said to be very highly satisfactory and complied in every respect with the provisions of the Factories Act.

The defendants’ factory was a temporary place and it was found by Uthwatt J, that it was not so equipped as to comply with the provisions of sect 47(1). The

plaintiff was engaged in constructing heels for women’s high-heeled shoes. He had to work on a spindle machine. A lot of dust came off in that process and

in this temporary factory proper exhaust appliances were not “provided and maintained as near as possible to the point of origin of the dust.” Having worked

for a little over a month in the defendants’ factory, the plaintiff began to cough up blood and was discovered to be in a condition of tubercular disease. The

medical evidence was that his lungs were infected with the microbe of that disease at least six months before he came to the defendants’ employ and he was in

a condition potentially tubercular which might become an active disease, as it did in the beginning of February.

The plaintiff’s claim is based upon the proposition that the alteration of this potentially tubercular condition in which he was before he came to the

defendants to an active condition of tubercular disease was due to the dust given off the machine on which he was working, which dust was not dissipated by

the safeguards required by sect 47 of the Act. The medical evidence was in some minor points different, as between a series of medical experts who were

called, but in substance they were agreed upon this: Dust, by itself, does not cause the inherent liability to tuberculosis due to previous infection to become

active and actual. What does cause that unfortunate change is exertion or exercise. As a rather illuminative example, one of the experts said that if the man

was in the most perfect atmospheric surroundings, in a high atmosphere in Switzerland, if he took to such hard exertion as breaking stones, notwithstanding

the admirable atmospheric surroundings, the disease might break out and become active. The medical experts also agreed that an exertion which might cause

this breaking-out of the active disease would be coughing; and it was agreed that dust in the atmosphere might cause a cough. But they also said that besides

coughing many other forms of exertion and exercise might equally do this, and would perhaps more readily cause him to cough. Besides his actual work in

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the factory the plaintiff was leading an ordinary life, and he might well have exerted himself at other things outside the factory. Incidentally, one piece of

evidence was that he was a member of the Home Guard. Those other activities of life, perhaps in the Home Guard, might well cause such exertion as would

bring about this coughing.

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Those being the facts and that being the medical evidence, Uthwatt J came to the conclusion that, although the plaintiff had established that the presence

of the dust unmitigated by compliance with the Factories Act, 1937, s 47(1), might, by causing coughing, have been the cause of this oncoming of the disease,

yet it was also apparent that there were many possible other causes for the outbreak of coughing, inasmuch as the evidence was that any form of exertion and

exercise would cause it. In those circumstances the judge held that the plaintiff had not discharged the burden of establishing that this unfortunate illness to

which he succumbed on 1 February 1944, was caused by the breach by the defendants of sect 47(1) of the 1937 Act.

Counsel for the plaintiff has relied very strongly upon what he says is a statement of principle in regard to these Factory Acts laid down by this court in

Vyner v Waldenberg Brothers Ltd, in which I was a member of the court and the judgment of the court was delivered by Scott LJ. That was a case of a breach

by the employer of two safety regulations (issued by the Secretary of State under the Factories Act, 1901, s 79) providing that any circular saw must be

securely fenced with a guard and that that guard must be lowered over the circular saw to the utmost extent possible when putting wood under the guard so as

to prevent the very obvious danger of a workman cutting his fingers, or his hand, with the circular saw. In that case the guard had not been properly adjusted,

but had been habitually kept at a height of 3 1/2ins above the table on which the wood was pushed forward. The wood on which the workman was working

was very much thinner and the guard could have been put down in accordance with the regulations. In the course of his judgment Scott LJ said ([1945] 2 All

ER 547, at p 549):

‘In these circumstances and but for the consideration of certain other aspects (which he considered and we will consider presently) the judge

indicated that, if the case stopped there, it would mean judgment for the plaintiff. We agree with him. But we go further. If there is a definite breach of

a safety provision imposed on the occupier of a factory, and a workman is injured in a way which could result from the breach, the onus of proof shifts

on to the employer to show that the breach was not the cause.’

Counsel for the plaintiff argues that that is a pronouncement as regards any breach of any of the provisions of the Factories Act and that, therefore, inasmuch

as it is established that there was a breach of sect 47(1) of the 1937 Act, as regards the ventilation to be provided where dust is produced, and since the

activation of tuberculosis could result from that breach, the onus of proving that it did not result from that breach is cast upon the employer.

In my view, that is a misapplication of the words of Scott LJ, which were directed to the particular case then under consideration. The statutory

regulations, which were under consideration in that case, directed that a guard must be provided and kept properly adjusted to prevent a workman from cutting

his fingers off by the circular saw. There was no possibility that his fingers could be cut off by any other cause than the circular saw and, therefore, when

Scott LJ said, “If there is a definite breach of a safety provision … and a workman is injured in a way which could result from the breach,” his mind was

directed to the breach of the regulations regarding the adjustment of the guard to the circular saw to prevent the workman from cutting his fingers and the

workman cutting his fingers by reason of the incorrect adjustment of that guard. That that is clearly what Scott LJ had in mind is, I think, shown by the

sentence which he then quoted ([1945] 2 All ER 547, at p 549), from the judgment of Goddard LJ, in Lee v Nursery Furnishings, Ltd ([1945] 1 All ER 387, at

p 390):

‘In the first place I think one may say this, that where you find there has been a breach of one of these safety regulations and where you find that the

accident complained of is the very class of accident that the regulations are designed to prevent, a court should certainly not be astute to find that the

breach of the regulation was not connected with the accident … ’

The regulations which Scott LJ was considering were for the provision and adjustment of a guard to a circular saw to prevent people from cutting their fingers

by the circular saw, and since the accident—ie, the cutting of the fingers—was the very class of accident which the regulations were designed to prevent, the

court should not be astute to find that the breach was not connected with the accident.

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Tuberculosis, however, is not the very thing that sect 47(1) is designed to guard against or to prevent. The object of sect 47(1) is to provide against every

possible uncomfortable, offensive or injurious effect due to the presence of dust. Tuberculosis is not the very class of injury which, and which alone, is

contemplated as the danger to be guarded against by this section for the removal of dust. The dust is a factor which may cause coughing, which coughing may

be one of the many things which may activate a quiescent tuberculosis. But I think it is quite wrong to transfer the words of Scott LJ, in Vyner v Waldenberg

Brothers, and similarly the words of Goddard LJ, in Lee v Nursery Furnishings Ltd, directed as they were to that particular rule about fencing a circular saw,

so as to lay down a general proposition as regards any section in the Factories Act, with the result that, where any breach of the Factories Act is proved and

that breach may be one of the causes which brought about the subsequent injury to the workman, the onus is then cast upon the employer to show that it did

not do so.

In my opinion, therefore, the onus of disproving the possibility that this presence of dust may have been a cause contributing to or activating the

tubercular condition of the plaintiff was not cast upon the defendants, but remained with the plaintiff; as it is the duty of every plaintiff to prove his cause of

action. I agree with the judge that, in the circumstances and upon the evidence, the plaintiff did not satisfactorily establish his cause of action. Therefore, the

judgment of Uthwatt J was right and the appeal must be dismissed.

TUCKER LJ. I agree. Counsel for the plaintiff submits that, in any event, it is open to this court, and it is the duty of this court, to reconsider the evidence

that has been given before Uthwatt J, and he invites us on reconsideration to come to a different conclusion. He says that this is not the kind of case where the

trial judge is in any more advantageous position than this court, because this is not a case of disbelieving the evidence on one side or the other. That is no

doubt correct, but, having considered the details of this case, the judge was left in doubt with regard to many matters. In the first instance, he was left in doubt

as to whether the active tuberculosis had flared up after the plaintiff came into the defendants’ employment. He only noticed his condition (ie, in regard to

coughing up blood, and so forth) after he had entered the defendants’ employ; but he told one of the the doctors called by the defendants that he had been run

down from the outset of his employment with the defendants. I think that, on the evidence, the matter was left in doubt. It is a possibility as to which there

was no very conclusive evidence one way or another. Apart from that, the judge was satisfied that the dust in the defendants’ premises had caused the plaintiff

to cough; but he was not satisfied that the coughing, any more than any other physical effort on the part of the plaintiff, had brought about his tubercular

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condition. That is a very difficult question, as almost all questions of causation are, and I do not feel disposed to differ from the conclusion at which the judge

arrived. Whether or not I should have come to exactly the same conclusion if I had tried the case and heard the witnesses, I do not know; but I do not feel that

there is sufficient material to justify me in saying that the judge came to an erroneous conclusion on this evidence.

In regard to the onus of proof, if counsel for the plaintiff is right in his submission, it would appear that if coughing had brought about a rupture in a

man—he being in a condition whereby he was disposed to be ruptured—once it was established that a rupture had occurred and that coughing was a possible

cause of rupture—one amongst many other possible causes—the onus would shift to the defendants to disprove that the rupture had been caused by their

breach of sect 47(1). The answer of counsel for the plaintiff to that was that sect 47(1) was not designed to deal with that class of accident or disability, but

was primarily designed to prevent the very thing that had happened in this case viz, tuberculosis. From a laymen’s point of view, I should have been inclined

to be attracted at first sight by that argument, but the medical evidence in this case shows quite clearly that it is erroneous. Sect 47(1) is not designed against

the contraction of tuberculosis any more than against the contraction of any other disease, because the medical evidence shows that it is not dust which brings

about tuberculosis or hastens its onset, but that it is the coughing which may result from dust, or from many other things, that activates 􀂭 142􀀉 tuberculosis;

ie, it is the physical effort and not the mere inhalation of dust. Therefore, I think that it is wrong to say that there has resulted, in this case, the very disease

against which sect 47 was directed.

For these reasons, in my view, this appeal fails.

BUCKNILL LJ. In my view this appeal should be allowed. The gist of the judgment of Uthwatt J is in the following sentence:

‘In the result, I find myself left in considerable doubt on the question whether the coughing due to dust had anything to do with the matter at all and

in these circumstances the action must be dismissed.’

With great respect to the judge, I think the evidence should have satisfied him that the coughing had a great deal to do with the matter, and that he was in error

in so directing himself. In my view, the evidence establishes that the coughing contributed to the flare-up. I say that for these reasons. The man himself said:

‘When I started at Tolemans I was in perfect health and it was several days, perhaps a fortnight, before the cold came on me and then after that I

developed a cough.’

The judge does not reject that evidence. In fact, I think he accepts it, because in his judgment he says:

‘Before his entry into the defendants’ employment, he was employed for some time by Hamptons and I am satisfied that the working conditions at

Hamptons were not such as in any way to bring about tuberculosis or to cause an existing tubercular condition to flare up. I am also satisfied that the

plaintiff was not at any time before he entered the defendants’ employment conscious that he had tubercular trouble.’

It is true that, without knowing it, the plaintiff had got tubercular trouble and probably had had it six months before he went to the defendants’ factory.

Uthwatt J in his judgment, said that he was doubtful whether the tubercular condition had flared up before the plaintiff entered the defendants’ employment.

There is no evidence, however, that the tubercular condition had flared up before he worked in the defendants’ factory. I think that all the evidence goes to

show that it flared up after he went there. In my view the judge also misdirected himself on that point.

The plaintiff has proved three things. (i) He proved a breach of the statutory duty not to allow excessive dust in the factory. (ii) He proved that he

coughed and coughed badly, during the 38 days that he was working there and that excessive dust produces coughing. (iii) He proved that the cough, like

every physical exertion, is likely to cause a flare-up. Having proved those three things, I think that he established a cause of action. He has proved negligence

and he has proved damage resulting from the negligence. In my view, the point that he might have had a flare-up in any event does not decide the question of

liability, but only affects the amount of damages. He was tuberculous, but the disease might very well have never had a flare-up but for the coughing caused

by the negligence of the defendants.

For these reasons I think that the appeal should be allowed.

Appeal dismissed with costs. Leave to appeal to the House of Lords granted.

Solicitors: Shaen, Roscoe & Co (for the appellant); Hewitt, Woollacott & Chown (for the respondents).

F Guttman Esq Barrister.

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[1946] 1 All ER 144