McWilliams v Sir William Arrol & Co Ltd (Cummings (orse McWilliams) v Sir William Arrol & Co Ltd)

An employee claiming damages for breach of a common law or statutory safety duty must establish that the breach caused or materially contributed to the injury. A failure to provide safety equipment is not causative where the evidence shows that the employee probably would not have used it.

The employee’s likely conduct may be inferred from admissible evidence of his own previous conduct. Evidence of general workplace practice may corroborate that inference. The ultimate question is where the balance of probability rests.

An employer’s duty to provide safety equipment does not necessarily include a duty to exhort an experienced worker to use it. The existence and scope of such an additional duty depend upon the circumstances.

The appellant’s husband, an experienced steel erector employed by the first respondents, was killed after falling about 70 feet while constructing a working platform on a crane tower in the second respondents’ shipyard. A safety belt would have prevented his death, but belts formerly available at the site had been removed several days earlier.

The appellant alleged that the employer had negligently failed to provide a belt and instruct the deceased to wear it. She alleged that the shipyard occupier had breached section 26 (2) of the Factories Act, 1937. The Lord Ordinary found breaches of the respective duties but held that the failure to provide a belt had not caused the death because the deceased would not have worn one. The First Division of the Court of Session adhered to that decision.

The central issues were whether the respondents could rely upon the deceased’s probable non-use of a belt, how that probability could be proved, and whether the employer had a separate duty to exhort him to wear one.

1. The appeal was dismissed unanimously. The Lord Chancellor, Viscount Simonds, Lord Reid and Lord Devlin each concluded that the failure to provide a safety belt had not caused the death. Lord Morris of Borth-y-Gest agreed with the Lord Chancellor.

2. Per the Lord Chancellor, Viscount Simonds, Lord Reid and Lord Devlin, causal connection between a breach of an employer’s common law or statutory duty and the employee’s injury must be established. The claimant must ultimately prove that the breach caused or contributed to the injury. The principle stated in Wardlaw v Bonnington Castings Ltd applied to both forms of duty.

3. Per the Lord Chancellor, the causal chain required a duty to supply a belt, breach of that duty, probable use of the belt if supplied, and prevention of death through that use. The first two steps ceased to operate causally because the evidence established that the deceased would not have worn a belt. Lord Devlin similarly reasoned that the failure to provide could operate only through a failure to wear.

4. Per Lord Reid and Lord Devlin, the claimant would ordinarily receive the benefit of assumptions that a safety appliance was useful and that a reasonable employee would use it. The employer could displace those assumptions with evidence. Once all evidence had been received, the decisive question was where the balance of probability rested.

5. The deceased’s likely conduct could be inferred from his own previous conduct. The evidence showed that he had repeatedly declined to wear a belt while doing similar work when belts were available. The general practice of steel erectors not to wear belts corroborated that inference. Per Lord Devlin, a court should approach such hypothetical findings carefully, particularly where the defendant’s breach prevented direct proof, but the evidence here was conclusive.

6. The proposition in Roberts v Dorman Long & Co Ltd [1953] 1 W.L.R. 942, that an employer in breach could not contend that the equipment would not have been used, was rejected. Per Lord Devlin, the decision could no longer be regarded as good law. The same ordinary causation requirement applied to section 26 (2) of the Factories Act, 1937, notwithstanding the elective wording of regulation 97 of the Building (Safety, Health and Welfare) Regulations, 1948.

7. Per the Lord Chancellor, Viscount Simonds, Lord Reid and Lord Devlin, the employer had no duty in the circumstances to exhort this skilled and experienced steel erector to use a belt. He already understood its advantages and disadvantages, workplace practice left its use to individual choice, and exhortation would not have altered his conduct.

1. House of Lords: The appeal was dismissed and the interlocutors of the Lord Ordinary and First Division were affirmed. The appellant was ordered to pay the respondents’ appeal costs, subject to further order before enforcement.
2. First Division of the Court of Session: On 17 February 1961, the court adhered to the Lord Ordinary’s interlocutor. It agreed that the failure to provide a safety belt had not caused the death.
3. Lord Ordinary: On 15 January 1960, Lord Guest assoilzied the respondents. He found breaches concerning the provision of a safety belt but held that the appellant had not proved that its provision would have prevented the accident.