Caswell v Powell Duffryn Associated Collieries Ltd

Lorp ATKIN. My Lords, this is an
appeal from a decision of the Court of Appeal who dismissed
an appeal from a judgment of Travers Humphreys J. in
favour of the defendants at the trial at the Cardiff Assizes in
December, 1937. The appellant, the plaintiff in the action,
is the mother of a young man, Arthur Caswell, who was killed
while working underground at the Pandy Pit of the Naval
Colliery, Penygraig, belonging to the respondents. She sues

. under the Fatal Accidents Acts, and also as administratrix
of his estate to recover damages on the ground that his death
was caused by a breach of a statutory duty imposed upon the
defendants by s. 55 of the Coal Mines Act, 1911. That section

, prescribes "every fly-wheel and all exposed and dangerous
"parts of the machinery used in or about the mine shall be kept
"securely fenced."' Caswell had been employed at the pit
since he was fifteen. At the time of his death he was twenty-
two. Five days before his death he had been given the work
at which he was killed. The facts of the case as they emerged
in this House are as follows. They were not fully ascertained
in the Courts below, a circumstance which is especially
unfortunate in view of the fact that the inquiry was into the
conditions attending the death of a workman. The parties,
however, gave every assistance to place the full facts before
this House. It appears that about fifteen months before
the date of the occurrence in question the defendants had
installed a system of conveyor belts which transported the
coal when gotten from the face to trams in which by a rope
haulage system it was eventually conveyed to the pit bottom.
The conveyor belt, which directly led the coal to the trams, is

158

H. ©. (E.)
1939
——

CASWELL
v.
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES,
Lp.

Lord Atkin.

HOUSE OF LORDS [1940]

the one with which this case is concerned: it was in fact
fed by two other conveyor belts communicating with the face.
The belt, which was rather less than 3 feet wide, passed
along the roadway, being supported on trestles with rollers
until it reached the chute, down which it deposited its load
into trams. The trams were made up in "journeys" of
fifteen trams, and unloaded were drawn in turn beneath the
chute which had a device to check the discharge during the
interval between one tram and the next. The belt itself
during the loading went on revolving. As the belt discharged
its load it passed round a roller or pulley and proceeded on
its return journey immediately below the full portion. It
was, of course, reversed so that the surface which had been
uppermost and in contact with the coal was now undermost.
The belt was driven by a compressed air turbine actuating
three drums, pulleys or rollers, as they have been called in
the case, each of 12 inches diameter and about 3 feet in width.
This engine was at the side of the roadway: the upper belt
with the coal passed over it: the lower belt passed into it
at the top of the engine and passing over the three rollers
received its motive force. It passed into the machine at the
height of about 6 feet. Originally the whole structure was
enclosed, but after a year's working it was found necessary
to have facilities for access to the top roller, the point met
by the belt, for the purpose of cleaning. It was found that
when the coal was damp, portions of coal and slimy stuff
adhering to the surface of the belt would cake into hard
obstructions on the surface of the roller, and cause the belt
to run out of alignment. For this purpose the upper portion
of the plate on the approach side of the engine was made
detachable. The machine remained enclosed up to the height
of about 4 feet 5 inches, and the remaining portion, about
I foot 6 inches, was loose, and was fitted into a slot so as to be
removed and replaced without much difficulty. It was
about 3 feet wide, and to remove or replace it the operator
had to stand in front ; apparently it could not be placed in
the slot from the side. From the line of the plate to the
nearest portion of the roller was a distance of 2 feet. To

A. C. AND PRIVY COUNCIL.

the bite of the roller and the belt was 2 feet 9 inches. Part
of Caswell's duty was to clean this upper roller when necessary.
For this purpose he was provided with two iron scrapers
which were produced at the hearing. They were heavy
implements about 4 feet in length, shaped like a hoe, the
scraper end was about 6 inches in width; at the other end
there was a rough handle in the shape of a ring. They were
sufficiently heavy to make it improbable that a man would
seek to handle them with only one hand. He could not, of
course, clean the roller without removing the movable plate.
The machine was about 12 yards away from the chute end
of the belt. It was put in motion and off again, not at the
machine itself, but by a lever at this chute which was in charge
of an assistant foreman, at this time Christopher Williams.
The remaining work of Caswell was to bale the water that
accumulated at this part of the roadway. The tramway
was laid on sleepers laid transversely in the usual way; but
sleepers were put down by the side of the tram lines and
parallel with them to afford a footing, and intervals were left
between these sleepers to afford a sump or sumps from which
the water could be withdrawn. For this purpose Caswell
was provided with a bucket with which he baled the water
either into a cask on one of the trams at the beginning of the
first shift and afterwards into any empty tram that might
be standing by. As far as his duties of cleaning the roller
were concerned, it was proved that he had received instruction
that he was not to clean while the machinery was in motion
and that he was to replace the plate when he had finished.
On the day in question four journeys had been completed.
The men were engaged in loading the fifth journey; they
had loaded three out of the fifteen trams, the fourth was
under the chute when the machinery stopped. They went
to the machine, and there they found the dead body of the
unfortunate Caswell ; his right hand was outstretched, caught
between the belt and the roller and his head was drawn up
against the roller ; his neck was broken. The body was drawn
up so that his feet were two feet from the ground, and beneath
his feet and lying in water beneath his feet was one of the iron

g

cs

159

H. L. (E.)

1939

——
CASWELL
v.
POWELL
DUFFRYN
ASSOCIATED
COLMIERIES,
LD:

Lord Atkin.

160

Heyica (E.)

1939
—

CASWELL
Vv.
POWELL
DuFFRYN
ASSOCIATED
COLLIERIES,
Lp.

Lord Atkin.

HOUSE OF LORDS [1940]

scrapers. The movable plate was standing up against the
fixed plate below.

It is in these circumstances that this action was brought.
It seems to me quite clear that this machinery when unfenced
and in motion was dangerous; that it was not fenced at the
time and therefore was not left fenced ; and that the omission
to keep the machine fenced " materially contributed to the
'injury or death complained of," to use the text of Lord Watson
in Wakelin v. London and South Western Ry. Co. (1) It would
appear, therefore, that the defendants would be liable unless
they proved—(a) under the terms of s. 102, sub-s. 8, of the Coal
Mines Act that it was not reasonably practicable to avoid or
prevent the breach, or (0) that a contributory cause of death
was the negligence of the deceased workman. It will be
convenient to deal with the second defence first, for the
principal discussion in the case was on that topic.

There were four ways in which it was possible for Caswell to
have cleaned the roller. The first, the forbidden way, was to
scrape the dirt off the roller while it was in motion, i.e., while
the conveyor beit was actually discharging into the trams.
This was, as the assistant manager proved, forbidden. The
plaintiff called three trustworthy trade union officials who
deposed interviews with the manager in which he had said
that this was the only way in which the roller could be cleaned.
The manager deposed that he was misunderstood. He was
referring to another method which is later to be described.
The learned judge who saw the witness accepted the manager's
explanation, and we cannot differ from his finding. The
plaintiff also called a witness, Howells, who was at the time of
the accident working at the mine. He not only spoke of this
practice but said that no scrapers were provided—only a long
rod; that the movable plate was always absent, and that
cleaning was constantly done by hand. The trial judge
entirely disbelieved this witness with good reason. The
defendants' witnesses made it plain that the dirt on the roller
caked into hard excrescences which could not be flicked off
by the hand but had to be hit off with the scraper. There is

(xr) (1886) 12 App. Cas. 41, 47.

A. C. AND PRIVY COUNCIL.

no evidence that Caswell ever cleaned the roller while in
motion, and it seems reasonably clear that at any rate at the
time of this accident he was not doing so. It would, according
to the defendants' own evidence, be very unlikely that he would
be doing such a futile thing as to use his hand alone, and if
he were using the scraper—(a) his hand would not have got into a
position to be caught, (b) the scraper would not have been
found in the position where it was, lying at his feet. The
second method was to clean the roller while the trams were
being loaded. It might happen that the belt would be out of
alignment or even stop because of obstruction on the roller.
In these circumstances, Williams, of his own accord or on a
hail from the cleaner, would stop the engine. The roller would
be cleaned and a half-turn given so as to expose and clean the
whole, and when finished, on another shout from the cleaner,
the conveyor would be started again. This involved, of course,
stopping the conveyance of coal throughout the entire part of
the mine served by the conveyors, and seems a course which
a boy of twenty-two would be disinclined to take on his own
initiative. On the day in question it had not been adopted, for
the machinery had never stopped except during the changing of
the journeys. The third method was that which the manager
said gave rise to the misunderstanding at the interviews.
While the machinery was stopped, during the changing of the
'journeys,' a period of about fifteen minutes, the exposed
portion of the roller would be cleaned by the scraper; the
cleaner would then call for another half-turn of the machine
and the other half of the roller would be so exposed and
cleaned. This would have been a simple method ; it seems
to have been assumed at the trial that it was the normal
method, and I think it clear that the trial judge so thought.
But on ascertaining the facts for this House it was made clear
that this was not how it was done. The system of working
required Christopher Williams, who was in charge of the lever
operating the machine, to leave the spot at the chute where the
lever was and attend the outgoing journey up to the spot about
80 yards away where there were double lines of tramway,
detach one end of the haulage rope from the outgoing journey,

I61

H. L. (E.)
1939

——
CASWELI.
v.
POWELL
DuFFRYN
ASSOCIATED
COLLIERIES,
IED:

Lord Atkin.

162 HOUSE OF LORDS [1940]

H.L.(E.) attach it to the incoming journey of empty trams and accom-
1939 pany the latter to the chute. During this time, therefore,
CasWELL there was no one available to give the necessary half-turn,
Powstz and this reasonably safe and effective system was not adopted.
Ree The fourth method was to wait until the machinery had stopped
ea for the change of journeys and then clean the half of the roller
lee which happened to be exposed, waiting to clean the remainder
— _ of the roller when it came into view at a subsequent stop. This
was somewhat fortuitous for the cleaned portion might come
up again at the next stop. I think, however, that it is almost
demonstrable that this was the method adopted by Caswell
on this morning. The first method, cleaning in motion is, I
think, negatived by the evidence. The second and third were
not used that morning as is shown by Williams's evidence as
to the engine. As to the fourth, I think there must have
been some occasion to clean. The manager said the roller
required cleaning twice an hour; the movable plate had
been taken off; and one scraper at least had been handled
by Caswell, for it was lying at his feet and not at the side
where it had been left by the night overman at the end of

the night shift.

Is there then any evidence that Caswell had been guilty of
negligence contributing to the accident ? If there is it must be
in the fact that he had not replaced the movable plate. That
he was authorized, indeed bound, to remove it from its closed
position is manifest. The machine could not be cleaned unless
he did. The facts seem to show that he had been using the
scraper to clean the roller while at rest. Is it proved that he
was negligent in not replacing the plate ? Now it is quite plain
that there was no system of signalling or calling to the cleaner
before starting the engine for the new journey. It was
therefore perfectly possible for the machinery to start while
the cleaner was at work at the roller. What was he then to do ?
He would cease cleaning and put down his scraper. The plate
could only be replaced while facing the moving machinery,
and I cannot think that it was negligent on his part to incur
this particular risk once the machinery started. The plate
would have to be lifted to within about two or three inches at

A. C. AND PRIVY COUNCIL.

the most from the moving belt. I think it would be fair to
conclude not only that it was not negligent to omit to replace
the plate in the circumstances but that caution required that
it should not be replaced. But if there was no negligence
proved in not replacing the plate what other careless act of
omission or commission is proved? Clearly none. What
precisely happened is not known. It is perfectly possible,
as pleaded in the alternative of the defendants themselves,
that the unfortunate man slipped and stumbled with his arm
through the opening and thereby was caught. Four or five
minutes probably elapsed from the time the machinery started.
I cannot see that he was doing anything careless in standing
near the orifice during that period or perhaps taking the
preliminary steps to resume his other job of baling. I should
add that I do not think he is shown to be careless by not
noticing either from the lapse of time or from the passing of
the journey of empty trams that the stop interval was coming
to an end. If closely engaged in cleaning he might well be
regardless of time. I come to the conclusion, therefore, that
the defendants have not established any contributory negli-
gence on the part of the deceased man. I propose, however,
later to say something on the interesting question whether any
and what contributory negligence affords a defence to such an
action as this.

I will, however, first discuss the other defence I mentioned
under s. 102, sub-s. 8, of the Act. As to this it is plain that the
defendants were entitled to entrust the cleaner with the duty
of removing this guard, for the roller could not otherwise be
cleaned. It was their duty, however, to see that the guard
was replaced ; and though primarily that had to be done by
the cleaner, yet it was their duty to see that such a system of
working was adopted as made the performance of that duty
practicable with reasonable safety. A system which involved
work being done at a machine which might be set in motion
without any signal to the workman engaged in cleaning it
seems to me most defective. Any kind of signal could have
been employed which would give the cleaner time to stop
cleaning and close the fence. The defendants entirely fail, in

163

H. L. (E.)
1939
—

CASWELL
v.
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES,
Lp.

Lord Atkin.

164

H. L. (E.)
1939
—

CASWELL
v.
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES,
Lp.

Lord Atkin.

HOUSE OF LORDS' [1940]

my judgment, to show that ''it was not reasonably practicable
"to avoid or prevent the breach."

Though I have come to the conclusion that in this case the
defendants failed to prove negligence on the part of the
deceased workman, I feel bound to say something on the topic
which was much discussed in argument, whether contributory
negligence is ever a defence to an action based upon a breach
of a statutory duty, or, more narrowly, based upon a breach of
a statutory duty to protect workmen and others imposed by
such Acts as the Factory, Mining Acts, etc. Authority for the
proposition that contributory negligence in the ordinary sense
is not a defence to such an action is to be found in the judgment
of the High Court of Australia in Bourke v. Butterfield and Lewis,
Ld. (1) The argument is that safety obligations are placed
upon employers for the purpose of protecting not only work-
men who are careful but also those who are careless, and
that the object of the Legislature is defeated if the right to sue
for injuries caused by the breach of the safety regulations is
denied to the careless workman for whose benefit, amongst
others, the legislation was specially enacted. I venture to think
that this attractive theory does not give sufficient weight to
the true cause of action in such cases. The statute does not in
terms create a statutory cause of action. It does not, for
instance, make the employer an insurer. The person who is
injured, as in all cases where damage is the gist of the action,
must show not only a breach of duty but that his hurt was
due to the breach. If his damage is due entirely to his own
wilful act no cause of action arises; as, for instance, if out of
bravado he puts his hand into moving machinery or attempts
to leap over an unguarded cavity. The injury has not been
caused by the defendants' omission but by the plaintiff's own
act. But the injury may be the result of two causes operating
at the same time, a breach of duty by the defendant and the
omission on the part of the plaintiff to use the ordinary care
for the protection of himself or his property that is used by the
ordinary reasonable man in those circumstances. In that case
the plaintiff cannot recover because the injury is partly caused by

(1) 38 C. L. R. 354.

A. C. AND PRIVY COUNCIL.

what is imputed to him as his own default. On the other hand
if the plaintiff were negligent but his negligence was not a
cause operating to produce the damage there would be no
defence. I find it impossible to divorce any theory of contri-
butory negligence from the concept of causation. It is
negligence which " contributes to cause '' the injury, a phrase
which I take from the opinion of Lord Penzance in Radley v.
London and North Western Ry. Co. (1) And whether you ask
whose negligence was responsible for the injury, or from whose
negligence did the injury result, or adopt any other phrase
you please, you must in the ultimate analysis be asking who
" caused " the injury ; and you must not be deterred because
the word " cause '' has in philosophy given rise to embarrass-
ments which in this connection should not affect the judge.
Nor is this question of contributory negligence one that arises
only in cases where the defendant is charged with negligence,
as though the negligences belong to the same pack and one
trumps the other. In the leading case of Butterfield v. Forrester
(2) the action was a case for obstructing the highway whereby
the plaintiff was injured. No negligence appears to have been
alleged and the action appears to have been a simple action
for a nuisance on the highway. The authority cited in argu-
ment from Buller's Nisi Prius, 26.9. so describes the
action. I quote from the 7th ed., of 1817; "So if a man
"lay logs of wood cross a highway, though a person may
'"'with care ride safely by, yet if by means thereof my horse
"stumble and fling me I may bring an action: for wherever
"a man suffers a particular injury by a nuisance he may
"maintain an action." 'Yet it is in such an action that Lord
Ellenborough laid down the classic rule: " One person being
'in fault will not dispense with another's using ordinary care
'for himself.'' And the omission by the plaintiff to use ordinary
care may be the sole cause of the injury as was held in
Butterfields' case (2), or have contributed to cause the injury
as in the numerous cases which appear in the books. It may
be said finally that if contributory negligence is not regarded
from the point of view of causation it is difficult to see how
(x) (1876) 1 App. Cas. 754. (2) (1809) 11 East, 60.
A. C. 1940. 3 N

165

H. L. (E.)

1939

CASWELL
v.

e@ POWELL
DuFFRYN
ASSOCIATED
COLLIERIES,
| Lip)

Lord Atkin.

166 HOUSE OF LORDS» [1940]

H. L. (E.) damage comes to be divided under the Admiralty rule which is
| 1939 adopted in ordinary cases of injury in other systems of juris-
Caswett prudence, and which persons of authority think should be
Power, adopted in ours.
DUFFRYN I cannot therefore accept the view that the action for
Beanies, injuries caused by breach of statutory duty differs from an
ae , action for injuries caused by any other wrong. I think that
Lord Atkin. the defendant will succeed if he proves that the injury was
caused solely or in part by the omission of the plaintiff to take
the ordinary care that would be expected of him in the
circumstances.
But having come to that conclusion I am of opinion that the
care to be expected of the plaintiff in the circumstances will
vary with the circumstances ; and that a different degree of
care may well be expected from a workman in a factory or a
mine from that which might be taken by an ordinary man not
exposed continually to the noise, strain, and manifold risks of
factory or mine. I agree with the statement of Lawrence J. in
Flower v. Ebbw Vale Steel, Iron and Coal Co., Ld. (1), cited by my
noble and learned friend Lord Wright (2): "I think of course
"that in considering whether an ordinary prudent workman
"would have taken more care than the injured man, the
"tribunal of fact has to take into account all the circumstances
"of work in a factory, and that it is not for every risky thing
"which a workman in a factory may do in his familiarity with
"the machinery that a plaintiff ought to be held guilty of
"contributory negligence.'' This seems 'to me a sensible
practical saying, and one which will afford all the protection
which is necessary to the workman. I cannot go further with
the High Court of Australia and limit contributory negligence
in this kind of case to wilful or serious misconduct. I have
already said that I see no ground for imputing any negligence
to the deceased man in the present case judged by any stand-
ard; but in any case, judging the question of fact by the
standard suggested by Lawrence J., I think that the defence
of contributory negligence inevitably failed. This appeal
must be allowed ; and as the amount of damages has not been

(1) [1934] 2 K. B. 132, 139, 140. (2) [1936] A. C. 206, 214.

A.C. AND PRIVY COUNCIL.

determined, there must be a new trial on the question of
damages only. Unless the parties otherwise agree the case
will be reheard at the next Assizes for the County of Glamorgan.
The appellant must have the costs so far incurred here and in
the Courts below.

I am requested by my noble and learned triend Lord
Thankerton to say that he agrees with the opinion which I
have read.

Lorp MacmiLian. My Lords, this is an action of damages
by the mother of a mine worker who met his death while at
work in a colliery belonging to the respondents. Her case
is that her son's death was due to the respondents' breach
of their duty, under s. 55 of the Coal Mines Act, rg11, to keep
securely fenced the exposed and dangerous machinery in the
mine which the deceased was employed to tend.

It has to be borne in mind that the Coal Mines Act, while
largely concerned with prescribing precautions to be taken
for ensuring the safety of workmen in mines, does not confer
any right of civil action for breach of its provisions. The
statute enforces its requirements by imposing penalties of
fine or imprisonment for their infringement. So far as I am
aware, the only reference in the Act to civil proceedings is
to be found in s. 102, sub-s. 8, which enacts that '"' the owner
"'of a mine shall not be liable to an action for damages as for
"breach of statutory duty in respect of any contravention of or
"non-compliance with any of the provisions of this Act if
"it is shown that it was not reasonably practicable to avoid or
"prevent the breach." Consequently a civil action for
damages in respect of an accident to a miner alleged to be due
to a breach of statutory duty on the part of his employers
must, in my opinion, be based upon negligence and be subject
to the general principles of law which govern actions of
damages for negligence. Indeed, under s. 29, sub-s. I, of the
Workmen's Compensation Act, 1925, it is not permissible to
take proceedings otherwise than under that Act in respect
of an accident to a workman unless the injury is alleged to

have been due to the personal negligence or wilful act of the
3 N 2

167
H. L: (E.)
1939

Scie
CASWELL
ae
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES,
Lp.

'Lord Atkin. ~

168

H. L. (E.)
1939
——

CASWELL
Vv.
POWELL
DuFFRYN
ASSOCIATED
COLLIERIES,
Lp.

Lord Macmillan.

HOUSE OF LORDS [1940]

employer or of some person for whose act or default the
employer is responsible.

In such an action as that which is now before your Lordships
it is therefore incumbent on the plaintiff to prove that the
defendant owed a duty to the deceased workman, that the
defendant failed to fulfil that duty and that the death of the
workman was attributable to that failure of duty on the part
of his employers. The Coal Mines Act does, however,
materially assist the plaintiff in such a case. It absolves him
from proving the existence and the nature of the employers'
duty, for it imposes and defines the duty. If the plaintiff
can show that there has been a breach of the statute he has
established the existence of negligence. It remains for him
only to prove that the accident was due to that negligence.
On this latter issue the defendant is entitled to avail himself
of the recognized pleas open to the defendant in an action
based on negligence. He can either (1.) maintain that the
plaintiff's evidence has failed to show that the defendant's
negligence caused the accident or (2.) prove affirmatively
that the accident was caused wholly or in part by the plaintiff's
own. negligence.

Now in the present case the appellant starts with the
advantage that the duty which the respondents owed to her
deceased son is defined and prescribed by the statute and that
the respondents admit that they were in breach of that duty.
The only remaining questions are whether it has been
sufficiently shown that the deceased's death was due to that
breach of duty on the part of the respondents and whether
the respondents have proved that the deceased by his own
negligence caused or materially contributed to the accident
which befell him.

The mere fact that at the time of an accident to a miner his
employers can be shown to have been in breach of a statutory
duty is clearly not enough in itself to impose liability on the
employers. It must be shown that the accident was causally
associated with the breach of statutory duty.

I do not propose to rehearse the facts of the present accident.
They have been fully set out by my noble and learned friend

A. C. AND PRIVY COUNCIL.

Lord Atkin, with whose exposition, both of the facts and of
the law applicable thereto, I find myself in entire agreement.
While the precise manner in which the deceased met his death
remains unascertained because there was no eye-witness of the
accident, it has been proved to demonstration that if it had
not been for the respondents' breach of their statutory duty
the accident would not have happened. The respondents'
breach of duty was clearly a cause of the accident. Having
thus causally connected the accident with the respondents'
breach of duty, I do not think that it was incumbent on the
appellant to eliminate and disprove all conjectural possibilities
that the deceased may himself have been in some way careless
of his own safety. From the facts established by the appellant
it may be reasonably inferred that the respondents' breach
of duty was a substantial cause of the accident. It is then
for the respondents to show that the deceased himself was by
his own negligence wholly or partly responsible for the
accident. The respondents have been at pains to suggest
grounds for attributing possible negligence to the deceased.
These grounds have been largely conjectural. I agree with
all Your Lordships that the respondents have failed, as matter
of evidence, to establish any of them. They have also failed
to bring themselves within the statutory defence provided
by s. 102, sub-s. 8. That being so, the appellant is, in my
opinion, entitled to succeed, and I concur in the motion that
the appeal be allowed.

Lorp Wricut. My Lords, the precise manner in which
the accident occurred cannot be ascertained as the unfortunate
young man was alone when he was killed. The Court therefore
is left to inference or circumstantial evidence. Inference
must be carefully distinguished from conjecture or speculation.
There can be no inference unless there are objective facts
from which to infer the other facts which it is sought to
establish. In some cases the other facts can be inferred with
as much practical certainty as if they had been actually
observed. In other cases the inference does not go beyond
reasonable probability. But if there are no positive proved

169

H. L. (E.)

1939
—

CASWELL

Vv.
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES,
LD,

Lord Macmillan.

170

H. L. (E:)
1939
ee

'CASWELL
v.
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES,
| oF

Lord Wright.

HOUSE OF LORDS [1940]

facts from which the inference can be made, the method of
inference fails and what is left is mere speculation or
conjecture.

In the present case there are, I think, certain known facts
which enable some inferences to be drawn. Beyond that
point the method of inference stops and what is suggested is
conjecture. It is not necessary to recapitulate the facts
which have been fully stated by my noble and learned friend,
Lord Atkin. I shall be content to state what I regard as
proved by the method of inference, and reject what appears
to me to be matter merely of conjecture. I take it as proved
by inference that the deceased had taken off the movable
plate before the accident and had not replaced it. The
evidence of the man whom he relieved at the job is clear that
the plate was on when he left, and there was no one_else at
the place between 7 A.M., when Caswell's shift began, and the
time of the accident, say 9.45 A.M. It is also matter of in-
ference that the plate was off before the accident for about
six minutes after the belt began to move to load the new
journey, because there is nothing to justify the inference that
Caswell took off the plate after the belt began to move, and
that a certain number of trams must have passed along the
lines for a few minutes before the belt began to move at the
side of the place where Caswell stood. These facts, I think,
can be properly inferred. But there is nothing to enable
the Court to infer what Caswell was doing at the time of the
accident. I accept the evidence that Caswell had been told
not to put his hand into the space opened by removal of the
plate in order to clean the roller ; indeed, it is clear that the
deposit was so hard caked as to make that operation not only
dangerous but useless. I accept the evidence that the belt
had not been stopped for cleaning operations since Caswell's
shift began. I gather from the evidence that a proper,
perhaps the best, opportunity to clean was when the machine
was stopped in the ten minutes or so while a journey of trams
was being changed. In order to clean the roller the plate
must have been removed. It is a reasonable, though perhaps
not a certain, inference from the evidence that Caswell. had

A. C. AND PRIVY COUNCIL.

thought it necessary to clean the roller when the machine
stopped and had removed the plate to do so, but had been
caught unawares with the plate off when Christopher Williams
restarted the machine. I find it impossible to infer what
Caswell then did. His duty was to clean the roller when
necessary and to bale the water which collected in the sumps
close to the machine. I infer from the position of the movable
plate that at the time of the accident he was not trying to
replace it. That, it seems, would have been a dangerous
operation. The position in which one of the scrapers was
found justifies the inference that he had been using it that
morning, but not that he was using it at the time of the
accident. The suggestion that he may have slipped while
about to apply the scraper to the moving roll is, perhaps,
no more than a possibility. The suggestion that he may
have been reaching up to clear the belt of coal which threatened
to obstruct it, and that his hand had been drawn into the bite
is a mere conjecture, with, so far as I can see, no objective
fact to give it plausibility. There is no evidence where the
bucket or baler, which it is assumed there must have been
for him to bale with, was found. Hence it is not safe to
infer that he had slipped while baling, though that is perhaps
more probable than any other reconstruction. That he did
slip, for whatever reason, seems to be almost the only possible
inference from the evidence as a whole.

What is clear is that the absence of the movable plate,
rendering the machine unfenced, was, if not the sole cause, at
least a cause and a substantial cause, to adopt in this context
what was called in Swadling v. Cooper (1) the crucial question
in a road accident case, "' whose negligence was it that
"substantially caused the injury?" fi Indeed it seems to me
that the absence of the fence can properly be described as
the dominant, effective, or common sense cause. It is in my
opinion clear that if at the material time the machine had been
fenced, the man could not have been killed, or even come to
any serious harm. His death was caused by the absence of
fencing. Merely to slip, unless in proximity to the unfenced

(t) [1931] A. C. 1, 12.

171

H. L. (E.)

1939
~

CASWELL
Vv.
POWELL
DUuFFRYN
ASSOCIATED
COLLigRIES,
Lp.

Lord Wright.

172

Hi L. (E:)

1939
—

CASWELL
De
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES,
Lp.

Lord Wright.

HOUSE OF LORDS [1940]

machine, would have caused at most a bruising or, by very
bad luck, perhaps a broken bone. The actual death was caused
because the man was drawn into the open space ; that is, it
was caused by the want of fencing. That there was a breach
of s. 55 of the Coal Mines Act, rgrt, is, I think, clear. It is
true that the machine was not dangerous when stationary. The
danger came when it was working. The mischief came because,
owing to the defective system of working, the man who started
the machine was twelve yards from the machine, and started
it in practice, as he did in this case, without knowing whether
the guard was on or not and without any warning to the man
at the turbine. Hence the respondents could not rely on
s. 102, sub-s. 8, of the Act, because they could not show that
it was not reasonably practicable to avoid or prevent the
breach. That could have been done if the system of working
had provided that the machine should not be started unless
the guard was on. I think that the breach of s. 55 caused, or
at least substantially caused, the death.

It follows that the onus is shifted on to the respondents to
prove that the deceased man was guilty of some misconduct
or negligence which would have the effect of excluding his
claim if the injury had not been fatal and which would therefore
exclude the claim in this action, because the appellant has
not a higher right than the man would have had if not killed.
I think for this purpose in this connection the same rule
applies as that stated by Lord Watson in Wakelin v. London and
South Western Ry. Co. (2), applicable to an ordinary plea of
contributory negligence.

_ If the defendants' negligence or breach of duty is established
as causing the death, the onus is on the defendants to establish
that the plaintiff's contributory negligence was a substantial

or material co-operating cause. As Lord Watson said: "' the

"plaintiff is not bound to prove the negative in order to entitle
"her to a verdict in her favour.'' Here the breach of the
statutory duty on the part of the respondents is established,
and there is, in my opinion, no evidence justifying the inference
that Caswell was guilty of any conduct such as to bar

(1) 12 App. Cas. 41,47.

A. C. AND PRIVY COUNCIL.

the claim, whether or not the term contributory negligence is
used. But it is necessary to consider the arguments strenuously
advanced on behalf of the respondents to justify such an
inference. They may, I think, be fairly summarized as follows :
let it be conceded that the man was doing nothing wrong in
removing the plate to clean the roller when the machine was
stopped ; to assume that would be the view most favourable
to the man. But in that event his duty was to replace it in
due time. He should have done so the moment the machine
started, or if he had not time to replace it, stopped the machine
for that purpose by signalling to the man in charge of the
starting lever. {Or still better he should have realized at
an earlier stage that the new journey of trams was coming
in as the trams passed him on their way to the point where
each in turn would come in under the chute, and then he had
ample warning to replace the plate. As he failed to do so,
he was just as blameworthy as if he had taken off the plate
when the machine was working, a course which if taken
by him would have been negligence or misconduct sufficient
to bar the claim. Such are the contentions on behalf of the
respondents. The answers made on behalf of the appellant
are, first, that all this is mere conjecture and does not discharge
the onus which arises from the established fact of a breach
of the statute by the respondents; and, secondly, that even
assuming the set of circumstances which the respondents put
forward as the reconstruction of the accident most favourable
to the appellant's claim, the failure of the man to replace the
plate was not contributory negligence or conduct such as to
bar the claim even on the assumptions postulated by the
respondents. It was pointed out that there was no evidence
that the man had been warned what he was to do if the machine
started when the plate, having been properly removed during
a stoppage, was off. Tostop the machine after it had started
for a journey of trams was to stop the work of the colliery,
and the man might hesitate to do that and decide to wait
till the next stoppage. It was not his fault that the machine
started without his having an opportunity to replace it, and if
he kept away from the aperture he would be safe enough,

173

H.'L. (E.)
1939
——

CASWELL
v.
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES,
ED:

Lord Wright.

174

H. L. (E.)
1939
ss

CASWELL
v.
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES,
Lp.

Lord Wright.

HOUSE OF LORDS [1940]

whereas the attempt to replace the plate while the machine
was in motion was obviously dangerous. It may be that,
if he so thought, he was guilty of an error of judgment, but
not one for which he was to be blamed in the particular
emergency. Nor was he to be blamed for not taking note
as the empty trams began to pass him, that the machine would
be starting as soon as the first tram of the journey reached
the chute. There was no evidence that he had been directed
to take note of that event, or that it had been recognized
as constituting a warning to replace the plate. Thus, I think
the answers on behalf of the appellant may be summarized.
In my opinion the appellant is right on both points. There
is, first, no sufficient evidence that Caswell was guilty of any
fault, so as to displace the onus imposed on the respondents
by reason of their breach of statutory duty which caused the
death, and secondly, the hypotheses relied on by the respondents,
if established, would not show that he was guilty of more than
an error of judgment or heedlessness or inadvertence in regard
to his own safety not amounting to contributory negligence
or misconduct such as to displace the claim. On this latter
point I adopt as an adequate criterion of what would bar the
man's claim the statement of Lawrence J. in Flower v. Ebbw
Vale Steel, Iron and Coal Co., Ld. (1) He accepted, as he was
required to do by the authorities binding him, that contributory
negligence was a valid defence toa claim for breach ofa statutory
duty such as had been committed in that case, but he proceeded
to do what I think had not been done previously, i.e., to define
a standard to help a jury or a judge to decide whether or not a
man had been guilty of negligence in cases of this type. The
principle, he said, did not demand of "a workman in a factory a
"higher degree of care than an ordinary prudent workman in a
"factory would show." He proceeded: "The question is then
'whether the plaintiff by the exercise of that degree of care
'"which an ordinary prudent workman would have shown in the
"circumstances could have avoided the result of the defendants'
"breach of duty. I find that he could and that the proximate
"cause of the accident was his own disobedience of orders. . . ."'

(1) [1934] 2 K. B. 132, 139, 140.

A. ¢C. AND PRIVY COUNCIL.

I note the word "proximate "' for the use of which there is
support in Swadling v. Cooper. (1) He added: 'in considering
"whether an ordinary prudent workman would have taken
"more care than the injured man, the tribunal of fact has to
'take into account all the circumstances of work in a factory
"and that it is not for every risky thing which a workman in a
"factory may do in his familiarity with the machinery that a
"plaintiff ought to be held guilty of contributory negligence."
His judgment was affirmed by the Court of Appeal, but was
reversed unanimously in this House on the ground that there
was no evidence to justify the finding of disobedience to
orders and that the decision of Lawrence J. was based on this
finding, which he described as the proximate cause of the
accident, and not on the fact that the man was doing a risky
thing in putting his hand as he had done inside the machine.
In the opinion which I delivered in Flower's case (2) in this
House, I added, without considering whether such a plea was
properly described as one of contributory negligence, some
observations in explanation and support of the judge's definition
of what constituted contributory negligence in such cases,
which I regard as a valuable contribution to the law on this
subject.

The circumstances under which men working in a mine or a
factory are exposed to risk when machinery is unfenced in
breach of statutory duty have general characteristics of their
own. These have to be carefully considered when the question
is whether a man was negligent. I think the importance of the
ruling of Lawrence J. is that he drew attention to these general
conditions of work and thereby gave a good practical direction
and definition to help in deciding the issue of fact in any par-
ticular case. The learned judge did not mean that there are
grades or degrees of negligence or that the plaintiff is not
prevented from recovering by "mild" negligence but only by
"'eross "' negligence. Generally speaking in civil cases "gross "'
negligence. has'no more. effect that negligence without an
opprobrious epithet. Negligence is the breach of that duty to
take care, which the law requires, either in regard to another's

(1) [1931] A. C. 1. (2) [1936] A. C. 206, 210.

175,

H. L. (E.)
1939
ane

CASWELL
v.
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES,
Lp.

Lord Wright.

176

H. L. (E.)
1939
—

CASWELL
DV.
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES
Lp.

Lord Wright.

HOUSE OF LORDS [1940]

person or his property, or where contributory negligence is in
question, of the man's own person or property. The degree
of want of care which constitutes negligence must vary with the
circumstances. What that degree is, is a question for the jury
or the Court in lieu of a jury. It is not a matter of uniform
standard. It may vary according to the circumstances from
man to man, from place to place, from time to time. It may
vary even in the case of the same man. "Thus a surgeon doing
an emergency operation on a cottage table with the light of a
candle might not properly be held guilty of negligence in
respect of an act or omission which would be negligence if
he were performing the same operation with all the advantages
of the serene atmosphere of his operating theatre ; the same
holds good of the workman.7 It must be a question of degree.
The jury have to draw the line where mere thoughtlessness or
inadvertence or forgetfulness ceases and where negligence
begins. »

What was the standard of negligence in such cases had been
left somewhat vague in the decisions before Flower's case. (1)
The word "wilful "' has figured as affording some guide when
applied to negligence, as by Campbell C.J. and Wightman J.
in Caswell v. Worth (2), and many years later by Scrutton L.J.
in Dew v. United British Steamship Co. (3) ; but wilful in this
connection does not necessarily mean deliberate or intentional
wrong-doing. In Senior v. Ward (4) Campbell C.J. held that
the deceased man had been guilty of gross negligence which
materially contributed to his death. In Pringle v. Grosvenor (5)
the plaintiff, a woman, was employed to clean a revolving plate
while in motion. It was safe'on three sides, though unfenced.
She was aware of the danger if she went on the other side but
did so and was injured. The Court of Session held that as she
did not go into danger wilfully or out of mere bravado, but
was committing a mistake by inadvertence, she was entitled
to recover because she could not have been injured if the
defendant had performed the statutory duty to fence. It is,

(1) [1936] A. C. 206, 210. (4) 1 E. & E. 385.
(2) (1856) 5 E. & B. 840. (5) 21 R. 532. °°
(3) (1928) 98 L. J. (K. B.):88.

A. ©. AND PRIVY COUNCIL.

I think, clear that epithets like "wilful" or "gross" do not
advance the inquiry and can well be avoided. "'Wilful "
is not a term of art and is often used as meaning no more
than a high degree of carelessness or recklessness. It is not
necessarily limited in its use to intentional or deliberate
wrong-doing.

I do not attempt to ascribe to Lawrence J.'s formula the
universality or literal sanctity which appertains to the pro-
visions of a statute, but it is, in my opinion, not only a valuable
guide, but is in accordance with the authorities which the
learned judge considered. It also seems to me to minimize, if
not to destroy, the practical importance of the question which
was much. debated whether the employers' defence in such
cases is properly described as a plea of contributory negligence.
That it is not properly so described was held by the High
Court of Australia in Bourke v. Butterfield and Lewis, Ld. (1)
But I find in the conclusion of the judgment of the majority
of the Court delivered by Knox C.J. these words: 'We think
"that in English law the phrase contributory negligence is
"appropriate only in an action for negligence and not in an
"action founded on breach of a positive statutory duty ; but if
"no more is meant than that in such an action the plaintiff
"may be disentitled to succeed because of his own misconduct,
"we agree that that is an accurate statement of the law."
A little earlier in the judgment it is said: 'Whether the
"conduct of an employee goes beyond mere thoughtlessness
"or want of care and amounts to misconduct is in every case
"a question of fact.'' On the facts of that case I think that
according to the formula of Lawrence J. the plaintiff would
have succeeded, as in fact he did under the judgment of the
High Court of Australia. But Lawrence J. would have held
that there was no negligence, whereas the High Court held
that there was no misconduct.

I do not think that an action for breach of a statutory duty
such as that in question is completely or accurately described
as an action in negligence. It is a common law action based on
the purpose of the statute to protect the workman, and belongs

(r) 38 C. L. R. 354.

177

H. L. (E.)

1939

——
CaswELi
v.
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES,
Lp.

Lord Wright.

178

H. L. (E.)
1939
ee

CASWELL
v.
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES,
Lp.

Lord Wright.

HOUSE OF LORDS -: {1940}.

to the category often described as that of cases of strict or
absolute liability. At the same time it resembles actions in
negligence in that the claim is based on a breach of a duty to
take care for the safety of the workman. The cause of action
is sometimes described as statutory negligence and it is said
that negligence is conclusively presumed. Thus in Lochgelly
Tron and Coal Co., Ld. v. M' Mullan (1), it was held that a breach
of the statutory duty constituted personal negligence or wilful
act of the employer within s. 29, sub-s. 1, of the Workmen's
Compensation Act, 1925. I am not prepared to agree that the
defence of contributory negligence should be excluded in such
cases simply on the technical ground that the cause of action
is not negligence in the strict sense, whereas contributory
negligence presupposes original negligence. I have, however,
come to the conclusion on a consideration of the English cases,
that English law has accepted contributory negligence as a
defence in this class of case. If the matter had been free from
authority, I should, I think, have thought it simpler to hold
that a workman's claim for injury caused by breach of the
employer's statutory duty to fence and like duties, is only
barred by blameworthy conduct on the man's part of such
gravity and so directly causing the accident as in the judgment
of the judge or jury to be properly described as the substantial
cause of the accident and to shift the responsibility to him.
This view would have been in accord with the general intention
of the statute and would have avoided the technicalities which
have gathered round the doctrine of contributory negligence.
But that path is closed by the line of decisions in England, and
if contributory negligence is properly defined, I do not feel
that the distinction is for practical purposes generally other
than one of words. What is all-important is to adapt the
standard of what is negligence to the facts, and to give due
regard to the actual conditions under which men work in a
factory or mine, to the long hours and the fatigue, to the
slackening of attention which naturally comes from constant |
repetition of the same operation, to the noise and confusion
in which the man works, to his pre-occupation in what he is

(1) [1934] A. C. 1.

A, CG. AND PRIVY COUNCIL.

actually doing at the cost perhaps of some inattention to his
own safety. In Dew v. United British Steamship Co. (x)
I question if this point of view was fully realized by
Scrutton L.J., when he dissented from the view of
MacKinnon J., the trial judge. The latter was of opinion,
as appears from what he said to the jury, that the real effective
cause of the accident was the breach of the statutory regula-
tion, and that the man's act in slipping was not the proximate
cause of the accident. Scrutton L.J. held that as the man
slipped when going about his duty and thus fell into the
open unfenced hatch, the slipping was negligence because he
would not. have slipped if he had been more careful and was
a co-operating cause, and hence that the man was disentitled
to recover. So far as I follow the facts, I should have thought
that they did not show negligence on the part of the man even
if he might have walked more warily, and further that slipping
was not the proximate cause of the injury. The negligence to
be contributory must also be, in Lord Campbell's words in
Senior v. Ward (2), negligence " materially contributing "' to
the injury. The rules of contributory negligence have been
mainly developed in connection with road accidents, but at
least since Davies v. Mann (3), the law in discussing contri-
butory negligence in such cases has disregarded as not
materially contributing causes some acts of the plaintiff which
might be regarded as negligence in a sense, and treated them
as of subsidiary moment in ascertaining the causation of the
injury and has fixed attention on what was judged to be the
proximate or effective cause. Hence the question was stated
as it was in Swadling v. Cooper (4) to be what was the sub-
stantial cause. Contributory negligence involves two elements,
negligence and contributing negligence. The policy of the
statutory protection would be nullified if a workman were held
debarred from recovering because he was guilty of some
carelessness or inattention to his own safety, which though
trivial in itself threw him into the danger consequent on the
breach by his employer of the statutory duty. It is the breach

(1) 98 L. J. (K. B.) 88. (3) (1842) 10 M. & W. 546.
(2) 1 E. & E. 385. (4) [r931] A. C. 1.

179

H. L. (E.)
1939
es

CASWELL
Vv.
POWELL
DUFFRYN
ASSOCIATED

COLLIERIES,
uD.

Lord Wright.

180

H. L. (E.)
1939
—_

CASWELL
v.
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES,
Lp.

Lord Wright.

HOUSE OF LORDS [1940]

of statute, not the act of inadvertence or carelessness, which is
then the dominant or effective cause of the injury. This follows,
I think, if the rules of contributory negligence in road accident
or collision cases are suitably adapted to deal with breaches
by an employer of his statutory duty.

I have dwelt on these legal questions out of respect to the very
careful arguments of law with which Mr. Fyfe and Sir William
Jowitt have assisted the House. On the footing that con-
tributory negligence is the test, I repeat that the respondents
have not discharged the onus of establishing it, and further
that such evidence as there is goes to negative a case of con-
tributory negligence, and finally that the hypothetical recon-
struction of the facts propounded on behalf of the respondents,
even if accepted, would not show a case of contributory
negligence.

I am for allowing the appeal.

Lorp PorTER (read by LoRD MAcMILLAN). My Lords, the
facts have already been fully set out and I need not repeat
them, but some short statement of the duties of and instructions
given to the deceased man is desirable. His death was caused
as a result of his hand and arm being drawn in between a belt
and roller which it was his duty to clean. At the time when
the accident occurred the machine driving the conveyor belt
was working and the guard covering the roller had been
removed. It was admittedly part of his duty to take off the
guard and to clean the roller set behind it. His only instruc-
tions were not to clean the roller whilst the machine was in
motion.

He does not appear to have been told not to clean the roller
whilst the railway trucks which had been filled by the con-
veyor belt were being removed and the empty journey was
being drawn into position. Indeed, as the manager stated in
evidence, that would have been the obvious and convenient
time to use for cleaning the roller, subject to the difficulty that
whilst the machine was at rest half only of the roller would be
exposed and the other half could not be cleaned unless it were
given a half turn by setting the engine in motion. But there

'ASC? AND PRIVY COUNCIL. 181

may have been times when the half turn would be unnecessary H. L. (E.)
because the removal of a lump or the cleaning of the half

Ig3¢
would effect all that was required. To have removed the aon
guard at the time when the engine was stopped would in those psa
circumstances have been part of the deceased man's duty and _Durrryy
in itself no evidence of negligence. Garnet

But it is said it was in any case negligent not to have ine

replaced the guard before the engine started again. By '"4 Porter.
consent of the parties and at the request of your Lordships
certain information which had not been ascertained in evidence
was supplied to your Lordships' House. xFrom this evidence
it appeared that shortly before the engine was restarted the
journey of trucks would be moved into position alongside the
deceased man and it was said that this truck movement
would give him ample warning of the restarting of the engine.
But it has to be remembered that the trucks are being changed
many times a day; that the young man would be busy
cleaning or baling and that his attention being so distracted he
might well fail to notice the approach or presence of the trucks. 4
Their arrival and removal were constantly repeated and in
no sense intended to be a warning, though to one who was
not engaged on other matters they might incidentally act as
such. No doubt, however, once the engine was started again
the deceased man must have known that it was working, and,
if engaged in cleaning the roller, ought to have ceased to do so.
The respondents maintain that it was his duty thereupon not
only to cease cleaning, but also to replace the cover at once, and
that he was guilty of negligence or misconduct in not doing so.

I cannot take this view. The cover had to be replaced
from the top and must touch or nearly touch the moving belt
in the process.

If the machinery was dangerous to one working in the
vicinity when unfenced, I think it was at least equally
dangerous to anyone replacing the cover. Indeed, to fail to
replace it may have been a prudent rather than a negligent
act.

If this view be accepted, the fact that the accident did not
take place until the lapse of five or six minutes after the engine

A. C. 1940. 3 O

182

H. L. (E.)

1939
—_

CASWELL
v.
POWELL
DuFFRYN
ASSOCIATED
COLLIERIES,
iP}oy

Lord Porter.

HOUSE OF LORDS [1940]

was restarted can make no difference. Once the belt had
begun to revolve the cover might remain off without any
negligence or misconduct on the part of the workman.

As to how the accident happened I think at best only a guess
is possible. Since the scrapers had been taken from the
place where they had been left, and one at least was found
in the water immediately below the dead man's body, it seems
to be established that he must have removed the cover for the
purpose of cleaning the roller. That he continued to clean
the roller after the engine started is improbable. Had he
been doing so the scraper would have remained inside the
fixed guard, not outside. The planks on which he stood were
slippery and he was baling. He may have slipped, and where
a slip might carry him it is impossible to say. On the other
hand it is conceivable, though not very likely, that he was
attempting to brush off some of the matter adhering to the
belt either inside or outside the guard and that his hand was
carried on and gripped between belt and roller. In these
circumstances I think the true finding is that there was a
breach of statutory duty on the part of the respondents
since the guard was off at a time when the machine was
working ; but there is nothing to show that the workman
was in any way implicated in that breach of duty. He could
rightfully remove the guard whilst the engine was stopped,
during the time the journey of trucks was being changed, and
there is no evidence that he took it off at any other time.

Nor have the respondents shown either by positive evidence
or necessary implication from the facts proved that the
workman was guilty of any misconduct, negligence or any
wrongful act causing or contributing to his own injury. On
the other hand it has not been shown by the appellant that
the deceased man was not guilty of misconduct or negligence,
and if such evidence be necessary she must fail.

What is the result of this finding? The respondents say
that it is the duty of the appellant to show two things: (r.)
that there was a breach of statutory duty; and (2.) that the
breach was the cause of the accident, but admit that if these
two facts be proved the onus is on them to show negligence

ASC. AND PRIVY COUNCIL.

on the part of the workman causing or contributing to the
accident. They add, however, that in this as in any case,
the facts as proved by the plaintiff may establish without
further evidence either that the accident was not caused by
the breach of duty or that the person meeting with an accident
must have been guilty of negligence.

With the first contention the appellant does not quarrel.
She acknowledges that she must show a breach of statutory
duty and that it was at least a cause of the accident though
not that it was necessarily the sole cause. She also agrees
that the evidence called on her behalf might of itself establish
that the respondents' fault did not cause the accident or that
the deceased man was in whole or in part the cause of his own
misfortune.

The principle applicable is to be found in the well known
passage from Lord Watson's speech in Wakelin v. London and
South Western Ry. Co. (1): "If the plaintiff's evidence were
"sufficient to show that the negligence of the defendants
"did materially contribute to the injury, and threw no light
"upon the question of the injured party's negligence, then I
"should be of opinion that, in the absence of any counter-
"evidence from the defendants, it ought to be presumed
"that, in point of fact, there was no such contributory
"negligence. Even if the plaintiff's evidence did disclose
"facts and circumstances bearing upon that question, which
"were neither sufficient per se to prove such contributory
"negligence, nor to cast the onus of disproving it on the
"plaintiff, I should remain of the same opinion."

If for the word "' negligence "' of the defendants, the words
"breach of statutory duty" be substituted, the opinion
is exactly applicable to the facts of the present case.
Undoubtedly the absence of the guard contributed to the
injury which caused the death of the workman. Had the
guard been in its place the accident would not have happened.

On the other hand the evidence, as I have indicated, throws
no light upon the deceased man's negligence nor casts the onus
of disproving contributory negligence upon the appellant.

(1) 12 App. Cas. 41, 48.
3 O2

183

H. L. (E.)
1939
~—

CASWELL
Vv.
POWELL
DuFFRYN
ASSOCIATED
COLLIERIES,
Lp.

Lord Porter.

184

HALS(E:)
1939
—

CASWELL
v.
POWELL
DUuFFRYN
ASSOCIATED
COLLIERIES,
1D

Lord Porter.

m

HOUSE OF LORDS [1940]

The most that can be said on behalf of the respondents is that
their employee may or may not have been guilty of some
wrong-doing—there is nothing to show that he was.

This finding would entitle the appellant to succeed, but the
argument on behalf of the appellant has gone further and her
representatives have maintained that once it is shown that the
respondents have been guilty of a breach of statutory duty and
that that breach materially contributed to the accident, the
respondents cannot succeed unless it be shown that the work-
man knowingly and wilfully incurred the risk.

For this contention they rely upon the judgment of Campbell
C.J. in Caswell v. Worth. (x) The case itself is not, I think,
an authority for the principle propounded. It happened that
in that case there was not only a want of ordinary care, but
wilful misconduct, and Campbell C.J. fastened on the fact ;
but he does not assert that nothing less than wilful misconduct
will constitute a defence, and Coleridge J. in the same case
says: ''The action, however, must be subject to the rules
"of common law, and one of those is, that a want of ordinary
"care or wilful misconduct, on the part of the plaintiff is an
"answer to the action."" The italics are mine.

The appellant, however, gets her chief support for the
proposition from the Australian case, Bourke v. Butterfield and
Lewis, Ld. (2), and in particular from the judgment of Isaacs J.
in that case. Undoubtedly that judgment goes some way
towards upholding the principle contended for, but such a
contention was, I think, unnecessary for the decision, and is
not supported to its full extent by the majority of the Court,
whose judgment was delivered by Knox C.J. who said (3) :
"But did Parliament intend to extend that protection to every
"employee in every circumstance? We think not. In our
"opinion it would be unreasonable to attribute to Parliament
'an intention to impose upon the employer responsibility for
"an injury which the employee deliberately invites, whether
"by adopting the means of inflicting it, or by rejecting the means
"of avoiding it, or for an injury which has happened because

(r) 5 E. & B. 849. (ey) Skog IDs 18h) BYSO:
(2) 38 CSE a Ress

ee

A. C. AND PRIVY COUNCIL.

"the employee deliberately took an unnecessary risk, not in
"the interests of the employer, but for his own purposes.
"It is not easy to frame an exact formula ; but it may be said
"that the employer is responsible for the negligence, but not
"for the misconduct, of his employee. Whether the conduct

185

Beles

1939

CASWELL

Vv.
POWELL
DuFFRYN

ASSOCIATED

"of an employee goes beyond mere thoughtlessness or want of Coutierigs,

"care and amounts to misconduct is in every case a question
"of fact."

The speech of Lord Wright in Flower v. Ebbw Vale Steel,
Ivon and Coal Co., Ld. (1), is also prayed in aid of the appellant's
contention; but I do not think it can be said to confirm
that view. In terms the noble and learned Lord said (2) :
"T shall assume, though the question is reserved for decision in
"this House if it should ever arise in the future, that con-
"tributory negligence, properly defined and properly established,
"is a defence in this action."" He then goes on to a considera-
tion of what the proper definition of contributory negligence
in such a case should be.

As against the view that contributory negligence is not a
defence to a claim based on a breach of statutory duty there
are a number of dicta in cases, beginning with Brition v. Great
Western Cotton Co. (3), to the effect that it is. Perhaps the
best known is that contained in the judgment of Vaughan
Williams L.J. in Groves v. Lord Wimborne. (4) Moreover in three
recent cases the Court of Appeal have decided in terms that in
such a case the contributory negligence of the injured party is
a defence : see Dew v. United British Steamship Co. (5) ; Craze
v. Meyer-Dumore Bottlers' Equipment Co. (6); and Lewis v.
Denye. (7)

But the question though debated has never been determined
in your Lordships' House. Strictly speaking the phrase
"contributory negligence' is not a very happy method of
expressing an act of the employee which may relieve the
employer from liability. Probably the phrase "negligence

1) [1936] A. C. 206. (5) 98 L. J. (KX. B.) 88.
2) Ibid. 212. (6) [1936] W. N. 217.
DERE VEXx 130: (7) [1939] 1 K. B. 540.

(
(
(3)

(4) [1898] 2 Q. B. 402, 418, 419.

De

Lord Porter.

186

He LE)
1939
—_—

CASWELL
v
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES,
ED:

Lord Porter.

HOUSE OF LORDS [1940]

'materially contributing to the injury" would be more accurate,
but if the word "contributory '' be regarded as expressing
something which is a direct cause of the accident, either phrase
is accurate enough and the less accurate phrase is, I think,
sanctioned by long usage.

Whatever form of words be used I see no reason for differing
from the numerous dicta extending over many years, or from
the decision of the Court of Appeal. It was held in Lochgelly
Tron and Coal Co., Ld. v. M' Mullan (1) that a breach of statutory
duty is personal negligence on the part of the employer within
the meaning of that phrase in s. 29, sub-s. 1, of the Workmen's
Compensation Act, 1925, and it is suggested that an action
founded on breach of statutory duty is an action founded on
negligence. Whether this be so, or whether a breach of statutory
duty be regarded as a cause of action in itself, the question
is the same. Is the employer liable for all accidents caused
by a breach of statutory duty, and, if not, what is the limita-
tion? Is it a defence to prove such negligence as would
constitute contributory negligence in an action founded on a
breach of common law duty, or must the employer go further
and show that the workman knowingly and wilfully incurred
the risk? These last are the words of Campbell C.J.
Knox C.J. in the Australian case speaks of 'misconduct "'
simpliciter.

No doubt the Mines Act was intended to protect both careful
and careless workmen, but neither the appellant in the present
case nor the High Court in Australia were prepared to go the
length of saying that no action on the part of the workman would
relieve the employer, and the protection required may well be
given by making the failure to fence a criminal act.

1 do not see why the ordinary common law rules should not
apply, leaving the careless workman to his remedy under the
Workmen's Compensation Acts and reserving the additional
protection for breach of statutory duty to those who exercise
such reasonable care as a reasonable man working in the
particular mine or factory would exercise.

"Ut is the reasonable man who is to be considered, not the

(1) [1934] A. C. 1.

A. C. AND PRIVY COUNCIL.

particular individual, and therefore the degree of care will not
vary from man to man but it will, I think, vary from mine to
mine and factory to factory. The skill gained by a worker
may enable him to take risks and do acts which in an unskilled
man would be negligence, and on the other hand the fatiguing
repetition of the same work may make a man incapable of
the same care and therefore not guilty of negligence in doing
or failing to do an act which a man less fatigued would do or
leave undone. »

The question to be determined was thus put by Lawrence J.
in the Court of First Instance in Flower v. Ebbw Vale Steel,
Iron and Coal Co., Ld. (1) : "' The question is then whether the
"plaintiff by the exercise of that degree of carewhich an ordinary
"prudent workman would have shown in the circumstances
"could have avoided the result of the defendant's breach
"of duty."

With this I agree, and I doubt if the speech of Lord Wright
in your Lordships' House in the same case did more than
express his views as to what was the standard required in that
case. The High Court in Australia in Bourke's case (2),
may have thought that it required misconduct and not lack
of the appropriate degree of care to prevent the plaintiff
from succeeding. If they did, I do not agree with them.

There remains only to be considered the defence under
s. 108, sub-s. 8, of the Coal Mines Act, 1911, a section which
exempts the employer from liability if it is not reasonably
practicable to avoid or prevent a breach of s. 55 of the Act.

In Coltness Iron Co., Ld. v. Sharp (3) it was held that s. 102,
sub-s. 8, applied because it was not reasonably practicable
to keep the gearing which caused the accident securely fenced
during the time at which it had to be observed whilst being
tested.

So I suppose in the present case it might be argued that it
was not reasonably practicable to prevent the guard from
being removed—indeed that it was necessary to do so in order
to clean the roller. In a sense this contention is true. But

(1) [1934] 2 K. B. 132, 139. (3) [1938] A. C. 90.
(2) 38 C. L. R. 354.

187

H) La (EB)
1939
=

CASWELL
v.
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES,
Lp.

Lord Porter.

188

H. L. (E.)

1939
—

CASWELL
Vv.
POWELL
DUFFRYN
ASSOCIATED
COLLIERIES,
Lp.

Lord Porter.

HOUSE OF LORDS [1940]

though the absence of the guard is an inchoate danger whilst
the engine is not in motion, it is only an actual danger when
it is working. It may be impracticable to avoid removing
the guard whilst the machine is motionless, but it is not
impracticable that it should be fenced whilst the machine is in
motion, or at any rate to ensure that the workman shall have
sufficient notice of the fact that the engine is about to be used
again and ample opportunity of replacing the guard. The
ringing of a bell or a warning shout and in either case a reply,
should be sufficient to avoid any danger; and so would instruc-
tions that the cleaning must only take place whilst the engine is
stopped for that purpose, and after the necessary stop and
half turn has been started again at the request of the cleaner.
This failure to give adequate warning is no doubt a fault of
system. But it is not fault of system of which the workman
primarily complains. His complaint is that the guard was
off. The employer might have excused himself by proving
it impracticable to have it on, but he cannot rely upon his
own want of system for that purpose. It is not the workman
who wishes to rely, as a cause of action, upon the system
adopted. It is the employer who desires to use it as an
excuse for failing to keep the machinery guarded.

I think then that the workman has proved a breach of
statutory duty and that that breach was a cause of the
accident, that the employer has proved neither that the removal
of the guard was an act which the workman should not have
done, nor that its absence or the accident was due in whole
or in part to the negligence of the workman, much less to his
misconduct.

I take the view that it would be a sufficient defence to the
employer to prove that the accident was in part caused by the
act of the workman in the sense that it was materially con-
tributed to by his negligence and by negligence I mean a
failure to exercise such a degree of care as an ordinary prudent
workman in that mine would exercise.

But the onus of proving that defence is admittedly on the
respondents and I do not think they have discharged it.

The appellant is therefore in my view entitled to recover and

A. C. AND PRIVY COUNCIL. 189

I would allow the appeal and order the respondents to pay H. L. (E.)
the costs in your Lordships' House and below. 1939
Caswete
Appeal allowed, and cause remitted to the King's

Powe
Bench Division for a new trial on question of Durrryn
~ ASsoclaTED
damages only. COLLiERIEs,
Lp.