135 / 338
Per Lord Somervell of Harrow and Lord Denning
(Lord Cohen concurring) : Reasons given by a judge
for reaching conclusions on a question of negligence,
which, if the trial were with a jury, the jury would
decide, were not propositions of law and authorities
should not be cited for them.
Per Lord Somervell of Harrow :
When a point
that has not been pleaded is allowed to be taken
in the Court of Appeal, an amendment should be
drafted whether or not the case seems likely to
reach the House of Lords.
When negligence cases were tried with juries, the
judge would direct them as to the law as above. The
question whether, on the facts in that particular case,
there was or was not a failure to take reasonable care
was a question for the jury. There was not, and could
not be, complete uniformity of standard. One jury
would attribute to the reasonable man a greater
degree of prescience than would another. The jury's
decision did not become part of our law citable as a
precedent.
In those days it would be only in
exceptional circumstances that a judge's direction
would be reported or be citable. So far as the law is
concerned they would all be the same. Now that
negligence cases are mostly tried without juries, the
distinction between the functions of judge and jury
is blurred. A judge naturally gives reasons for the
conclusion formerly arrived at by a jury without
reasons. It may sometimes be difficult to draw the
line, but if the reasons given by a judge for arriving
at the conclusion previously reached by a jury are
to be treated as " law " and citable, the precedent
system will die from a surfeit of authorities. In the
present case, and I am not criticising him, the learned
county court judge felt himself bound by certain
observations in different cases which were not, I
diink, probably intended by the learned judge to
enunciate any new principles or gloss on the familiar
standard of reasonable care. It must be a question
on the evidence in each case whether, assuming a
duty to provide some safety equipment, there is a
duty to advise everyone whether experienced or
inexperienced as to its use.
I have come to the conclusion that the learned
judge's first impulse was the right conclusion on
the facts as he found them, and for the reasons which
he gives. I will not elaborate these reasons or some
one might cite my observations as part of the law
of negligence.
Per Lord Denning : My Lords, in 1944, Du Parcq,
L.J., gave a warning which is worth repeating to-day:
" There is a great deal of danger, if I may say so,
particularly in these days when very few cases are
tried with juries, of exalting to the status of propo
sitions of law what really are particular applications
to special facts of propositions of ordinary good
sense."
In the present case, the only proposition of law
that was relevant was the well-known proposition—
with its threefold subdivision—that it is the duty of a
master to take reasonable care for the safety of his
workmen. No question arose on that proposition.
The question that did arise was this :
What did
reasonable care demand of the employers in this
particular case ? That is not a question of law at all
but a question of fact. To solve it, the tribunal of
fact—be it judge or jury—can take into account any
proposition of good sense that is relevant in the
circumstances, but it must beware not to treat it as a
proposition of law.
This is not the first time this sort of thing has
happened. Take accidents on the road. I remember
well that, in several cases, Scrutton, L.J., said that
" If you ride in the dark you must ride at such a pace
that you can pull up within your limits of vision".
That was treated as a proposition of law until the
Court of Appeal firmly ruled that it was not. So,
also, with accidents in factories. I myself once said
that an employer must, by his foreman, " do his
best to keep them up to the mark ".
Someone
shortly afterwards sought to treat me as having
laid down a new proposition of law, but the Court of
Appeal, I am glad to say, corrected the error. Such
cases all serve to bear out the warning which has
been given in this House before :
" We ought to beware of allowing tests or guides
which have been suggested by the court in one state
of circumstances, or in one class of cases, to be
applied to other surroundings .
.
.",
and thus by degrees to turn that which is at-best,
a question of fact into a proposition of law. That
is what happened in the cases under the Workmen's
Compensation Act and it led to a " wagon-load of
cases ".
Let not the same thing happen to the
common law, lest we be crushed under the weight
of our own reports.
(Qualcast Ltd.
v.
Haynes (1959), 2 All E.R. 38.)
REGISTRATION OF TITLE ACTS, 1891
AND 1942 ISSUE OF DUPLICATE LAND
CERTIFICATE
Applications have been received from the register
ed owners mentioned in the Schedule annexed
hereto, for the issue of Certificates of Title in
substitution for the original Certificates issued in
respect of the lands specified in the said Schedule,
which original Certificates, it is alleged, have been
lost or inadvertently destroyed.
A duplicate Certificate will be issued in each case,
except a case in respect of which notification is
received in this Registry within 28 days from the
publication of this notice, that the Certificate of
Title is still in existence, and in the custody of