The Gazette 1958-61

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.

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).