McWilliams v Sir William Arrol & Co Ltd

An employee claiming damages for breach of an employer’s common law or statutory duty must prove that the breach caused or materially contributed to the injury. Failure to provide safety equipment causes no loss if the employee probably would not have used it.

The employee’s likely conduct may be inferred on the balance of probabilities from past conduct and, with appropriate caution, workplace practice. An employer remains entitled to rebut the ordinary inference that a reasonable employee would use safety equipment. Courts should also be circumspect before extending the duty of care into a general obligation to exhort an experienced worker to use familiar equipment.

An experienced steel erector employed by the first respondents fell about 70 feet while constructing a working platform on a crane tower in the second respondents’ shipyard. No safety belt was available. His widow claimed that the first respondents had negligently failed to provide a belt and instruct him to use it. She alleged that the second respondents had breached Section 26 (2) of the Factories Act, 1937.

The Lord Ordinary and the First Division held that the respondents had breached their respective duties to provide a belt. They nevertheless rejected the claim because the deceased probably would not have worn one. They also rejected the alleged duty to instruct or exhort him. The widow appealed on causation, the burden and admissible methods of proof, and the alleged duty to exhort.

1. Appeal dismissed unanimously. The House held that the respondents’ failure to provide a safety belt had not caused the death because the deceased probably would not have used one. Viscount Kilmuir delivered a leading speech, with which Lord Morris of Borth-y-Gest agreed. Viscount Simonds, Lord Reid and Lord Devlin delivered concurring speeches.

2. Per Viscount Kilmuir, Viscount Simonds, Lord Reid and Lord Devlin, a claimant relying on either common law negligence or breach of statutory duty must establish a causal connection between the breach and the damage. The causal chain required proof that the deceased would have used a belt if one had been available. If he would not, the breach in failing to provide it made no contribution to his death.

3. Per Lord Reid and Lord Devlin, proof of causation did not require direct evidence of what the deceased would have done. His likely conduct in a hypothetical situation could be inferred on the balance of probabilities. Evidence of his own repeated failure to use available belts was admissible and compelling. Evidence of the general practice among steel erectors was also relevant, although Lord Reid reserved his opinion about a case resting on general practice alone and Lord Devlin considered such evidence of limited weight without evidence of the particular worker’s attitude.

4. Per Lord Reid and Lord Devlin, proof that a safety appliance ought to have been provided ordinarily supports initial assumptions that the appliance was useful and that a reasonable worker would use it. A defender may adduce evidence displacing those assumptions. Once all the evidence has been heard, the decisive question is where the balance of probability rests, rather than where the initial burden lay. The evidence here overwhelmingly established that the deceased would not have worn a belt.

5. The rule in Roberts v Dorman Long & Co Ltd, which prevented an employer who had failed to provide a belt from showing that it would not have been used, was rejected. Lord Reid held that a defender must be allowed to prove that its breach did not cause the accident. Lord Devlin concluded that Roberts could no longer be regarded as good law.

6. Per Viscount Kilmuir and Lord Reid, applying the caution expressed in Qualcast (Wolverhampton) Ltd v Haynes, an employer’s duty should not readily be enlarged into a vague obligation to encourage or exhort workers to use safety equipment. The deceased was skilled, experienced and familiar with the advantages and disadvantages of belts. The prevailing practice allowed steel erectors to elect whether to use them. No duty to exhort or instruct arose.

1. House of Lords: Dismissed the widow’s appeal unanimously and affirmed the rejection of her claims.
2. First Division of the Court of Session: Agreed that the respondents had breached their respective duties to provide a safety belt, but held that the breach had not caused the death because the deceased would not have worn one. It also rejected liability based on a failure to instruct or exhort him.
3. Lord Ordinary: Held that the respondents were in breach of their respective duties to provide a safety belt, but dismissed the claim for want of causation. The alleged duty to instruct was treated as academic.