The employer was prosecuted under the 1961 Act.
Held: the burden of proving that it was not reasonably practicable to make and keep a place of work safe rested upon the defendant employer. If an exception was to be established, it was for the party claiming the exception to establish it. (Majority) Where a linguistic construction of the statute could not clearly indicate upon whom the burden should lie the court should look to other considerations to determine the intention of Parliament such as the mischief at which the Act was aimed and practical considerations affecting the burden of proof and, in particular, the ease or difficulty that the respective parties would encounter in discharging the burden.
Lord Wilberforce: ‘the orthodox principle (common to both the criminal and the civil law) that exceptions, etc., are to be set up by those who rely on them.’
Judges:
Lord Wilberforce, Lord Guest, Lord Upjohn
Citations:
1967 SC (HL) 79, [1968] AC 107
Statutes:
Factories Act 1961 29(1), Mines and Quarries Act 1954 48(1)
Jurisdiction:
England and Wales
Cited by:
Cited – Davidson v Lothian and Borders Fire Board IHCS 18-Jul-2003
The pursuer, a firefighter, sought damages for injury incurred during a drill. The drill involved manipulating a ladder, which was caught by the wind, a known risk in such exercises.
Held: The defenders had failed to discharge the burden on . .
Cited – Kerr v Department for Social Development (Northern Ireland) HL 6-May-2004
Wrongful Refusal of Benefits
The claimant was estranged from his family, but claimed re-imbursement of the expenses for his brother’s funeral. The respondent required him to establish that none of his siblings was in a better position than he to pay for the funeral, but he had . .
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Pennington v Surrey County Council and Surrey Fire and Rescue Service CA 9-Nov-2006
The claimant firefighter crushed a finger trying to release a traffic accident victim with a heavy machine for expanding gaps in metal. The defendant appealed on liability. The court was asked whether a simple warning of the possible danger was . .
Cited – Regina v Hunt (Richard) HL 1987
The court objected to the insistence on leaving the burden throughout a prosecution on the defendant on the ground that ‘the discharge of an evidential burden proves nothing – it merely raises an issue’. The House emphasised the special nature of . .
Cited – Clarke v Regina CACD 23-Apr-2008
The defendant appealed his conviction for providing immigration services when not qualified to do so. . .
Cited – Chargot Limited (T/A Contract Services) and Others, Regina v HL 10-Dec-2008
The victim died on a farm when his dumper truck overturned burying him in its load.
Held: The prosecutor needed to establish a prima facie case that the results required by the Act had not been achieved. He need only establish that a risk of . .
Cited – Smith v Northamptonshire County Council HL 20-May-2009
The claimant, a health care worker was visiting the home of a client when she fell from a defective wheelchair ramp and suffered injury. She sought damages from her employer.
Held: Her appeal failed (Lord Hope and Lady Hale dissenting). The . .
Cited – Baker v Quantum Clothing Group Ltd and Others SC 13-Apr-2011
The court was asked as to the liability of employers in the knitting industry for hearing losses suffered by employees before the 1989 Regulations came into effect. The claimant had worked in a factory between 1971 and 2001, sustaining noise induced . .
Lists of cited by and citing cases may be incomplete.
Scotland, Health and Safety
Updated: 21 June 2022; Ref: scu.184719