The ship had followed a practice of leaving the between deck hatch covers off in the absence of a guard rail around the hatchway. The plaintiff seaman fell into the hold. There was evidence that on this ship it was quite usual for men to be sent down to the between decks. The ship owners relied on evidence to suggest that there was a general practice in ships at sea not to erect guard rails in similar circumstances. The trial judge had found for the plaintiff. The Court of Appeal divided but allowed the appeal.
Held: (3-2 majority) The plaintiffs’ appeal succeeded, The ship owners had been shown to be in breach of their common law duty of care to the seamen.
Lord Morton of Henryton (dissenting) said: ‘My Lords, in the face of this evidence, I would find it difficult to hold that a guard-rail round the hatch was a thing which was ‘so obviously wanted’ that the owners and master of the Daltonhall, and inferentially the owners and masters of all the ships of a similar type on which these four experienced witnesses had sailed, were guilty of folly in failing to ensure that such a rail was erected.’
Lord Reid (majority) said: ‘It was argued that, whether the practice of leaving the hatches unprotected was good or bad, the respondents were entitled to rely on it because it had gone on a long time and no one had heard of an accident arising from it. I would agree that, if a practice has been generally followed for a long time in similar circumstances and there has been no mishap, a reasonable and prudent man might well be influenced by that, and it might be difficult to say that the practice was so obviously wrong that to rely on it was folly. But an employer seeking to rely on a practice which is admittedly a bad one must at least prove that it has been followed without mishap sufficiently widely in circumstances similar to those in his own case in all material respects. This part of this case has caused me considerable difficulty, but I do not think that it has been proved that the circumstances were similar where the practice prevailed . . If it ought to have been foreseen in this case, as I hold it ought, that men might be sent near this hatchway during the remainder of the voyage, I do not think that the respondents can rely on this practice as having absolved them from the duty to consider whether guard-rails ought to be put up.’
‘It is the duty of an employer in considering whether some precaution should be taken against the foreseeable risk to weigh on the one hand the magnitude of the risk, the likelihood of an accident happening and the possible seriousness of the consequences if an accident does happen, on the other hand, the difficulty of expense and any other disadvantage of taking the precaution.’
Lord Cohen said: ‘When the court finds a clearly established practice ‘in like circumstances’ the practice weighs heavily in the scale on the side of the defendant and the burden of establishing negligence which the plaintiff has to discharge is a heavy one.’
Lord Morton of Henryton, Lord Reid, Lord Cohen
[1956] AC 552
England and Wales
Cited by:
Cited – Carter v Ministry of Justice QBD 12-Feb-2010
The claimant, whilst a prisoner, had consulted the prison doctor about a lump in her breast. She complained that her negligence and delay left her with a worse prognosis.
Held: If the doctor had undertaken the standard procedures on such a . .
Cited – Gray v Stead CA 20-Jul-1999
The defendant fishing boat operator appealed against a finding of liability in negligence in not having provided a single chamber life-jacket to the plaintiff. He said that at the time of the accident in 1994, it was not standard to provide them. . .
Cited – Grant v Brown, the Chief Constable of Grampian Police SCS 1-May-2001
. .
Cited – Hendrie v Scottish Ministers SCS 10-Jan-2002
. .
Cited – McClurg and Others v Royal Ulster Constabulary CANI 25-Jun-2009
. .
Cited – Bralsford v Conoco Ltd CA 14-Feb-1997
The employers appealed against a finding of negligence causing the plaintiff personal injury. The plaintiff lorry driver for the defendants, had his boot lace caught as he was on top of the tanker. He fell, but was left suspended. . .
Cited – Homburg Houtimport BV v Agrosin Private Ltd (The Starsin) CA 23-Jan-2001
Cargo had been negligently stowed on a ship so that condensation caused damage during the subsequent voyage. The claimant only acquired a title to the cargo after the voyage had commenced. The defendants contended that no duty of care could be owed . .
Cited – Papera Traders Co Limited and others v Hyundai Merchant Marine Co Limited, The Keihin Co Limited QBD 7-Feb-2002
A fire destroyed the ‘Eurasian Dream’ while in port. It was carrying cars, a fire in which got out of control. It was claimed that the ship managers had been negligent. The bill of lading contracts in the present case incorporated either the Hague . .
Cited – Silverlink Trains Ltd v Collins-Williamson CA 31-Jul-2009
. .
Cited – Brookes v South Yorkshire Passenger Transport Executive and Another CA 28-Apr-2005
Vibration tool injury. . .
Cited – A and Others v National Blood Authority and Another QBD 26-Mar-2001
Liability under the Act for a defective product was established where the defect was known, even though the current state of knowledge did not make it possible to identify which of the products was affected. The Act was to be construed to be . .
Cited – AB and others v British Coal Corporation and Coal Mining Contractor Defendants QBD 22-Jun-2004
. .
Lists of cited by and citing cases may be incomplete.
Negligence, Personal Injury
Leading Case
Updated: 02 November 2021; Ref: scu.416726