134 / 338
Per Harman J. I concur in the conclusion at which
my Lord has arrived. It is always sad to be stripped
of any illusion, and I, like, I expect, most lawyers,
have grown up in the belief that in cases of habeas
corpus the suppliant could go from judge to judge
until he could find one more merciful than his
brethren. That illusion was stripped from me when
I read the report of the decision in the Queen's
Bench Divisional Court last year in this very case.
The decision was based on this, I think, that there
never had been such a right. There had been a right
to go from court to court; there had been a right
in Vacation to go from judge to judge, for the
simple reason that the court was not sitting in
bane; but there had never been a right in term
time to go from one judge to another when the
court was available to which the applicant should
properly apply.
I think that the judgment of the Queen's Bench
Divisional Court did make it clear that this supposed
right was an illusion.
If that be right, the rest
follows. Nobody doubts that there was a right to
go from court to court, as my Lord has already
explained. There are no different courts now to go
to. The courts that used to sit in bane have been
swept away and their places taken by Divisional
Courts, which are entirely the creatures of statute
and rule. Applications for a writ of habeas corpus
are assigned by the rule to Divisional Courts of the
Queen's Bench Division, and that is the only place
to which a suppliant may go. He will, in the first
instance, it is said, have a right to go to one judge,
but the only result of that, except in a case of the
most extreme urgency, would be that the judge
would direct him to go to the proper tribunal,
namely, the Divisional Court. Even if the right to
go from one to another were now existing it would
not, in practice, be any bulwark of the liberty of the
subject, for the only result of going from one judge
to another would be that the applicant would find
himself before the Divisional Court. Nobody doubts
that if he has a decision of the Divisional Court then
he will not be able to get it again.
I concur respectively in what Lord Parker, C.J.,
says at the end of his judgment, namely, that it does
seem a pity that, this being a criminal case, there is
no appeal. It would seem it would be a good step,
as Lord Goddard, C.J., was frequently heard to
observe, if there was a right or some means of taking
a case like this to the House of Lords in order that
the subject should not feel that he had a grievance.
But that is a matter not within our province. All
we can do is to dismiss the application.
(Re Hastings No. 3 (1959) i All E.R. 698).
Note.
—This decision was affirmed by the Court of
Appeal, (Lords Evershed, M.R., and Romer and
Pearce (JJ.) on i5th June, 1959.
Reasons given by a Judge for reaching conclusions on a
question of negligence, which, if the trial were with ajury,
the jury would decide were not propositions of law, and
authorities should not be cited for them.
The respondent was employed at the appellants'
foundry as a moulder. He was thirty-eight years old
and had been a moulder all his working life. While
he was casting at the moulding boxes, the ladle
of molten metal which he was holding slipped, and
some of the metal splashed on to his left foot and,
as he was not wearing protective spats or special
boots, his foot was injured. The appellants kept in
their stores spats which could be had for the asking,
and strong boots which could be had on payment.
The respondent knew that the spats and boots
were available. The appellants had not ordered or
advised the respondent to wear protective clothing,
as he was an experienced worker, and he knew and
appreciated the risks of the metal splashing which
attached to his work. In an action for damages against
the appellants, the respondent alleged negligence on
their part in failing to provide any proper spats
or other sufficient protective clothing, and in failing
to provide a safe system of work and safe and proper
plant and equipment. The county court judge found
that there had been a breach of duty at common law
by the appellants to the respondent, but that the
respondent was guilty of contributory negligence,
and that his share of the responsibility was seventy-
five per cent. He expressed the view that, had he
not been bound by authority, he would have decided
that the respondent was so experienced that he needed
no warning, that what he did was with the full
knowledge of all the risks involved, and that there
was no negligence on the part of the appellants.
Held by the House of Lords (Lord Radcliffe,
Lord Keith of Avonholm, Lord Somervell of
Harrow and Lord Denning, Lord Cohen dissenting,
reversing the Court of Appeal (Lords Evershed,
M.R., Parker and Sellers
L.JJ.) and Judge Norris)
that a failure of duty on the part of the appellants,
as employers of the respondent, had not been
established,
because
the
respondent was
an
experienced moulder and by making protective
spats available
to him,
to his knowledge, the
appellants had on the facts of this case sufficiently
provided proper protective clothing and had ful
filled their duty to take reasonable care for his safety,
despite the fact that they had not brought pressure
to bear on him to wear the spats.