The Gazette 1958-61

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