The injury of which the employee complained came from two sources, a pneumatic hammer, in respect of which the employers were not in breach of the relevant Regulations; and swing grinders, in respect of which they were in breach.
Held: It had been wrong to formulate the question in terms of which was the most probable source of the disease complained of. The employee had to prove that the dust from the grinders made a substantial contribution to his injury, but that was established by showing that the proportion of dust that came from the swing grinders was not negligible. Where a breach of a duty of care is proved or admitted, the burden still lies on the plaintiff to prove that such breach caused the injury suffered. The test is the ‘but for’ test – what would have happened but for the negligent act.
Lord Reid said: ‘It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease. What is a material contribution must be a question of degree. A contribution which comes within the exception de minimis non curat lex is not material, but I think that any contribution which does not fall within that exception must be material. I do not see how there can be something too large to come within the de minimis principle but yet too small to be material.’ and ‘[the plaintiff] must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury’.
Lord Tucker said of the duty identified in Vyner: ‘I think it is desirable that your Lordships should take this opportunity to state in plain terms that no such onus exists unless the statute or statutory regulation expressly or impliedly so provides, as in several instances it does. No distinction can be drawn between actions for common law negligence and actions for breach of statutory duty in this respect. In both the plaintiff or pursuer must prove (a) breach of duty and (b) that such breach caused the injury complained of.’
Viscount Simonds, Lord Reid, Lord Tucker, Lord Keith of Avonholm, Lord Somervell of Harrow
[1956] 1 All ER 615 HL(Sc), [1956] 2 WLR 707, [1956] AC 613, 1956 SC (HL) 26, [1956] UKHL 1
Bailii
Grinding of Metals (Miscellaneous Industries) Regulations 1925 1
Scotland
Citing:
Criticised – Vyner v Waldenberg Brothers Ltd CA 1946
Vyner was working a circular saw when part of his thumb was cut off. The saw failed in several respects to comply with the Woodworking Machinery Regulations, and in particular the guard was not properly adjusted. The accident happened before the . .
Cited – Lee v Nursery Furnishings Ltd CA 1945
A Court should not be astute to find against either party, but should apply the ordinary standards. Lord Goddard said: ‘In the first place I think one may say this, that where you find there has been a breach of one of these safety regulations and . .
Cited – Mist v Toleman and Sons CA 1946
. .
Cited – Watts v Enfield Rolling Mills (Aluminium) Ltd CA 1952
. .
Approved – Stimpson v Standard Telephones and Cables Ltd CA 1940
. .
Approved – Caswell v Powell Duffryn Associated Collieries HL 1939
An action was brought for injuries caused by a breach of statutory of duty.
Held: A breach of statutory duty is regarded as ‘akin to negligence’.
Lord Atkin said that a common sense rather than a philosophical or scientific approach to . .
Cited by:
Cited – Vernon v Bosley (2) CA 29-Mar-1996
The defendant had been driving the plaintiff’s daughters, but negligently caused an accident from which they died. The plaintiff was called to the accident, and claimed to have suffered post traumatic stress. The defendant said that the effect was . .
Cited – Wilsher v Essex Area Health Authority CA 1986
A prematurely-born baby was the subject of certain medical procedures, in the course of which a breach of duty occurred. to ensure that the correct amount was administered it was necessary to insert a catheter into an umbilical artery so that his . .
Cited – Bolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
Cited – Loftus-Brigham and Another v London Borough of Ealing CA 28-Oct-2003
The claimants sought to recover for damages caused to their house foundations by trees growing nearby which were the responsibility of the defendants. The defendants replied that the damages was caused in part by roots from virgina creeper and . .
Approved – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Applied – Nicholson v Atlas Steel Foundry and Engineering Co Ltd HL 1957
The deceased had worked in the defender’s steel foundry, inhaling there siliceous dust particles. He contracted pneumoconiosis and died. The complaints related to the defender’s failure to provide adequate ventilation to extract the dust. The . .
Cited – Simmons v British Steel plc HL 29-Apr-2004
The claimant was injured at work as a consequence of the defender’s negligence. His injuries became more severe, and he came to suffer a disabling depression.
Held: the Inner House had been wrong to characterise the Outer House decision as . .
Explained – McGhee v National Coal Board HL 1973
The claimant who was used to emptying pipe kilns at a brickworks was sent to empty brick kilns where the working conditions were much hotter and dustier. His employers failed, in breach of their duty, to provide him with washing facilities after his . .
Cited – Donachie v The Chief Constable of the Greater Manchester Police CA 7-Apr-2004
The claimant had been asked to work under cover. The surveillance equipment he was asked to use was faulty, requiring him to put himself at risk repeatedly to maintain it resulting in a stress disorder and a stroke.
Held: There was a direct . .
Cited – McWilliams v Sir William Arrol and Co Ltd HL 1962
A steel erector had fallen seventy feet to his death from a steel lattice tower. The employers had not provided a safety harness, but the judge found that he would not have used a security belt even if provided, and that the onus was on the pursuer . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – Wilsher v Essex Area Health Authority HL 24-Jul-1986
A premature baby suffered injury after mistaken treatment by a hospital doctor. He had inserted a monitor into the umbilical vein. The claimant suggested the treatment should have been by a more senior doctor. The hospital appealed a finding that it . .
Cited – Environment Agency v Ellis CA 17-Oct-2008
The claimant was injured working for the appellants. The appellants now appealed the finding that they were responsible saying that other factors contributed to the injury, and in particular that he had fallen at home. The claimant said that that . .
Cited – Wootton v J Docter Ltd and Another CA 19-Dec-2008
The claimant sought damages saying that the contraceptive pill dispensed by the defendant was not the one prescribed by her doctor, and that she had become pregnant and suffered the losses claimed namely care, expenses and loss of earnings flowing . .
Cited – Sienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore SC 9-Mar-2011
The Court considered appeals where defendants challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma, and in particular to what extent a court can satisfactorily base conclusions of fact on . .
Cited – Shortell v BICAL Construction Ltd QBD 16-May-2008
(Liverpool District Registry) The claimant sought damages in a death caused by lung cancer where the deceased had been a smoker exposed also to asbestos in working for th edefendant.
Held: Applying the Bonnington test of causation, the issue . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police QBD 31-Jul-1990
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
Cited – Zurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .
Lists of cited by and citing cases may be incomplete.
Negligence, Damages, Personal Injury, Health and Safety
Leading Case
Updated: 11 November 2021; Ref: scu.180974