Ginty v. Belmont Building Supplies Ltd and Another 1 All ER 414
(Judgment by: Pearson J)
v. Belmont Building Supplies Ltd and Another
Judgment date: 30 April 1958
PEARSON J after stating the facts and reviewing evidence and observing that there was no doubt that the plaintiff and his mate knew what their instructions were, knew of the relevant provisions of the regulations, and knew that it was in breach of their instructions and of the regulations that they went on to the roof without using boards, continued: The plaintiff alleges against his employer, the first defendant, the Belmont company, breach of its statutory duty under the Building (Safety, Health and Welfare) Regulations, 1948, and breaches of its common law duty as employer. He alleged a breach of reg 5 of the Building Regulations, but that was not argued at length. Regulation 5 reads:
"Suitable and sufficient scaffolds shall be provided for all work that cannot safely be done on or from the ground or from part of the building, or from part of a permanent structure or from a ladder or other available means of support, and sufficient safe means of access shall so far as is reasonably practicable be provided to every place at which any person has at any time to work."
In my view, that regulation does not apply to this case, as the work could have been safely done from a part of the building, or from a ladder or other available means of support, and indeed the right way of doing it was to use boards to give safety on the roof itself. Counsel for the plaintiff mainly relied on the first part of reg 31(3), providing as follows:
"Where work is being done on or near roofs or ceilings covered with fragile materials through which a person is liable to fall a distance of more than ten feet-(a) where workmen have to pass over or work above such fragile materials, suitable and sufficient ladders, duck ladders or crawling boards, which shall be securely supported, shall be provided and used ... "
Regulation 31(3) (a) has to be taken in conjunction with reg 4, because reg 31(3) is expressed in the passive mood, and it does not say in itself who is to carry out these obligations and see that these requirements are fulfilled. Therefore one has to turn to reg 4 to see on whom the obligations under the regulations are imposed.
Regulation 4 contains this provision:
"It shall be the duty of every contractor and employer of workmen who is undertaking any of the operations to which these regulations apply ... (ii) to comply with such of the requirements of regs. 31-33 ... as relate to any work, act or operation performed or about to be performed by such contractor or employer of workmen ... "
Then there are some further provisions about the duty of contractors and employers of workmen, referring, inter alia, to "every contractor and employer of workmen who erects, instals, works or uses any crane ... " Then, in the last paragraph of reg 4, there is a provision that
"It shall be the duty of every person employed to comply with the requirements of such regulations as relate to the performance of an act by him ... "
Then there are further provisions about his duty to co-operate, and then:
"... and if he discovers any defect in the scaffolding, plant or appliances to report such defect without unreasonable delay to his employer or foreman ... "
When reg 4 and reg 31(3) are read together, what is the effect? On whom are the several obligations imposed? Counsel for the Belmont company submitted that the only duty of the employer was to provide ladders, duck ladders or crawling boards; but that it was the duty, and solely the duty, of the employee-the sheeter or the workman-to use them. Certainly that is a possible contention, but in my view it is not right. In my view, the obligation to provide is the obligation of the employer, but the obligation to use is the obligation both of the employer and of the employee. So far as the employer is concerned, one has the provision, in reg 4 (ii), that the employer is to comply with such of the requirements of, inter alia, reg 31(3) (a), "as relate to any work, act or operation performed or about to be performed by such contractor or employer of workmen". The ordinary employer of workmen is, of course, the limited company, which must act through its servants or agents, and it seems to me quite plain that the use of duck ladders or crawling boards is an act performed by the employer through his employees, because if one does not read the regulations in that way, then under the wording of reg 4 (ii) the regulations would apply to very few acts of the employers; but, in my view, one must read it as requiring the employer both to provide and to use the ladders, crawling boards, and so on. Then there is the last paragraph of reg 4. Is there an obligation on the employee, under the regulation, to use; that is to say, is it his obligation as well as the obligation of the employer? In my view, it is, on the ground that one should give the natural meaning to the words:
"It shall be the duty of every person employed to comply with the requirements of such regulations as relate to the performance of an act by him ... "
The requirements of reg 31(3) (a) apply to the performance of an act by the sheeters, the workmen in this case, because it is they who are going to use the ladders, duck ladders, over and working on the roof; and they must use those safety devices in doing that work.
Support for that view is given by Davison v Apex Scaffolds Ltd ( 1 All ER 473), a decision of the Court of Appeal. It is true that different views were taken by the members of the court as to the scope of the words which I have read from the last paragraph of reg 4; but the argument, on the one side, was that the words should be applied as I have stated, and, on the other side, that the words should be given a more limited meaning and should be regarded as applicable only when a particular regulation imposes a specific duty on some workman who is specially referred to. As I read the judgments in Davison v Apex Scaffolds Ltd, Singleton LJ and Jenkins LJ approved the view to which I have referred; it was only Hodson LJ who took the view that the more restricted meaning should be given to the words in question. Jenkins LJ said (ibid at p 483):
"Counsel for the plaintiff invited us to hold that the words 'to comply with the requirements of such regulations as relate to the performance of an act by him' should be construed as limited to the provisions in the regulations under which particular employees are required to do particular acts, and he instanced reg. 34(1) (c)."
The learned lord justice quoted that regulation, and he went on (ibid):
"... and, said counsel, reg. 4 is in this respect satisfied by provisions of that sort. I see no reason for placing that limited construction on the wide terms of this provision of reg. 4."
Then there was a statement, which was to the same effect, from Singleton LJ (ibid at p 481, letter h). The opinion to the contrary will be found in the judgment of Hodson LJ (ibid at p 487).
I hold, therefore, that there was a breach of duty both by the employer (the Belmont company) and by the employee, the plaintiff, inasmuch as the crawling boards and duckboards were not used. There is, however, a further question with regard to reg 31(3) (a), namely, whether there was a breach consisting of the non-provision of the boards. To provide the boards is plainly a duty of the employer and not a duty of the employee; the employee might conceivably have some duty to co-operate in some cases, but that is not important here. It was the duty, in the present case, of the Belmont company to provide the necessary boards; the company chose to do it by means of a contractual arrangement with the Pirelli company, but, in my view, that does not affect the obligation. It is not, in itself, a discharge of the obligation by the Belmont company merely to make a contractual arrangement; the company is still responsible for the necessary boards being provided, and, therefore, relies on the Pirelli company to perform the obligation for it. If the Pirelli company failed to perform the obligation under the contract, then there would be a breach of the obligation under the regulation by the Belmont company as against its own employee, the plaintiff.
One does not have to consider very closely whether there would be any breach by the Pirelli company as against the plaintiff, though I am inclined to think not. Nor do I have to consider-indeed I have been expressly absolved from it in the present case at the present stage-whether the Belmont company would have any rights of contribution against the Pirelli company in that respect. If that question ever arises, it will be decided at some later stage; but, as I have said, if the boards were not provided, then that is a breach by the Belmont company in relation to the plaintiff, and there is the question of fact whether the boards were provided or not. On the facts, as I have found them, was there a fulfilment or a breach of the obligation?
There are two relevant cases. One is Finch v Telegraph Construction & Maintenance Co Ltd ( 1 All ER 452), a decision of Devlin J. The material passage is that in which the learned judge's view of the law is stated. He said (ibid at p 454):
"In those circumstances I have to consider whether that was a 'providing of goggles' within the meaning of s. 49 of the Act of 1937. I have listened to the careful argument of counsel for the defendants, but I have come to the conclusion that it was not a 'providing'. Of course, goggles would be 'provided' if they were given to each man individually. I do not think that is the only way in which they could be 'provided', but, in my view, in order to 'provide' them within the meaning of the Act it would be necessary either that they should be put in a place where they come easily and obviously to the hand of the workman who is about to grind, or, at the very least, that he should be given clear directions where he is to get them. Accordingly, I think there has been a breach of s. 49."
The other case is Farquhar v Chance Bros Ltd ((1951), 115 JP 469). That was a case about the provision of safe means of access. It was a prosecution in which the justices held that the occupiers of the factory had not failed to provide a safe means of access; they had provided an adequate supply of suitable ladders within a reasonable distance of the platform. In that case, which was decided, it is true, under a different section (s 26(1) of the Factories Act, 1937) and in regard to a different phrase, namely, "safe means of access", it was held that the justices had the evidence on which they could rightly find that a safe means of access was reasonably provided when the supply of suitable ladders was made available at some distance (some fifty yards) away. That was the view of Lord Goddard CJ and Ormerod J; they were inclined to say not only that there was evidence on which the justices could so find, but they tended to agree with the finding. Hilbery J tended to take a different view, and he said this (115 JP at p 472):
"I feel that I should have come to another conclusion on this case for the reasons I have endeavoured to indicate ... Until a ladder is placed in the position which is appropriate for its use as a way of getting to a particular place of work, it appears to me to be no more than something which, if used for that purpose and in that way, can become a safe means of access. On the other hand, if it was shown that the occupier of the factory had laid on the ground alongside this scaffolding the ladder ready to be erected, I should have said that was providing a reasonably safe means of access. I do not wish ... to be thought to be expressing the view that anything so absurd might result as that, if once the ladder is provided as a safe means of access, when the workman changes to some extent the place of work, he is not himself to move the ladder and is not being provided by the occupier with a safe means of access merely because he has to move that ladder to another situation."
So the question here is whether there was a "providing" of the boards within the meaning of reg 31(3) (a). It was argued by counsel for the plaintiff that it was not a sufficient "providing" merely to say, if this is the right view of the facts: "Here you are; here are the boards in the store just beside this building. Come and help yourself if you want them". Counsel said that one must go further than that and "provide" at the place of work. He pointed to the words "which shall be securely supported", in reg 31(3) (a) and his argument was that the duty of the person "providing" was actually to place the board in position on the roof. That argument may be right in relation to some other material or safety device, but it is faced with an insuperable difficulty here in that the board has to be moved from place to place on one side of the roof, and, indeed, from one side of the roof to the other; therefore, it seems impossible to regard that obligation as being imposed on the employer. The employer's obligation is to "provide" in a reasonable sense of the word; of course, it is not sufficient if the boards are in a place which is locked, the key to which has to be fetched by the workman; but in this case boards had to be placed from time to time on different sides of the roof and on different sides of the building. In the present case there was a builder's yard, used as a store, within a few feet of the building in question, and the boards in that store would be as convenient as the men could require. In my view, there was a sufficient "providing" on the Thursday evening [29 July 1954] when the Pirelli company's men pointed these boards out in the store and said: "Here you are; you can help yourself". If that view is wrong, there is the further finding at which I have arrived on the balance of probabilities, namely, that two of the duckboards were, in fact, lifted up and placed beside the building on the Friday evening. I think that it is true that the attention of the Belmont company's men was not specifically called to their having been placed there, but the plaintiff said that, if they had been placed there, he would have seen them and it can be inferred that, if they were there (as I have found), he must have seen them.
I do not think that there is any hard and fast meaning of the word "provided"; it must depend on the circumstances of the case as to what is "provided" and how what is "provided" is going to be used. It is a very material circumstance here that the boards had to be used in different places. They must be nearby; they must be shown to the person requiring them and placed at his disposal; he must know that they are there for him to use, and he must know that he can put them where he wants. No doubt it should be added that they must not be far away, but Farquhar v Chance Bros Ltd decides that fifty yards is not too far away, and there is a much shorter distance in the present case. In these circumstances, therefore, I find that there was a sufficient "providing" of the boards in this case to satisfy reg 31(3) (a), and, accordingly, there was no breach in that respect by the Belmont company.
The position as between the plaintiff and the Pirelli company depends, I think, really on s 26(2) of the Factories Act, 1937, because counsel for the plaintiff was hardly urging that there was any breach of common law obligations as between the plaintiff and the Pirelli company. Section 26(2) raises to my mind a rather similar question. The sub-section reads:
"Where any person is to work at a place from which he will be liable to fall a distance more than ten feet, then, unless the place is one which affords secure foothold and, where necessary, secure handhold, means shall be provided, so far as is reasonably practicable, by fencing or otherwise for ensuring his safety."
That is not a provision which applies very easily to the present case, because we are not here concerned with fencing; but the words "or otherwise" appear in the section, and I think that there was an obligation here to provide the means of ensuring the safety of these men. The appropriate means would be the boards, and under this sub-section also there was an obligation to provide the boards. The obligation under the sub-section rested on the Pirelli company as the occupier of the factory. For the reasons already stated and on the facts already found, I find that there was a compliance by the Pirelli company with the sub-section. The Pirelli company also relied on s 119 of the Factories Act, 1937, which applies to operations such as this. Section 119(1) reads:
"No person employed in a factory or in any other place to which any provisions of this Act apply shall wilfully interfere with or misuse any means, appliance, convenience or other thing provided in pursuance of this Act for securing the health, safety or welfare of the persons employed in the factory or place, and where any means or appliance for securing health or safety is provided for the use of any such person under this Act, he shall use the means or appliance."
The material words are:
"... where any means or appliance for securing health or safety is provided for the use of any such person under this Act, he shall use the means or appliance."
I have already held that the boards were provided for the use of the plaintiff and that he failed to use them; therefore, there was a contravention by him of s 119(1). There is also s 119(2), which reads:
"No person employed in a factory or in any other place to which any provisions of this Act apply shall wilfully and without reasonable cause do anything likely to endanger himself or others."
It is part of the hardship of this case that the plaintiff, for reasons which one can fully understand, because he wanted to proceed with the work and to get it done quickly, took a risk. He did that wilfully, knowing that he was acting in breach of instructions and regulations, and I must hold that without reasonable cause he stepped on the roof without using boards-in other words, he did something which was likely to endanger his safety. So I must hold that there was a breach of s 119(2) also.
What is the upshot of all that? This accident was caused manifestly by the plaintiff working on an asbestos roof, which was a fragile roof, without using boards. The special feature of this case is that that wrongful act of his constitutes a breach by him of his instructions and of the regulations as they apply to him; but it also constitutes, technically at any rate, a breach by his employer under his obligation under reg 31(3) (a) to use the boards. The actual wrongful act was the plaintiff's wrongful act, but in one aspect it constitutes a breach by himself and in another aspect it constitutes a breach by his employer. So what is the position?
There has been a number of cases, to which I shall refer in a moment, in which it has been considered whether or not the employer delegated to the employee the performance of the statutory duty. In my view, the law which is applicable here is clear and comprehensible if one does not confuse it by seeking to investigate this very difficult and complicated question whether or not there was a delegation. In my view, the important and fundamental question in a case like this is not whether there was a delegation, but simply the usual question: Whose fault was it? I shall refer to some of the decided cases to demonstrate what I have said. If the answer to that question is that in substance and reality the accident was solely due to the fault of the plaintiff, so that he was the sole author of his own wrong, he is disentitled to recover. But that has to be applied to the particular case and it is not necessarily conclusive for the employer to show that it was a wrongful act of the employee plaintiff which caused the accident. It might also appear from the evidence that something was done or omitted by the employer which caused or contributed to the accident; there may have been a lack of proper supervision or lack of proper instructions; the employer may have employed for this purpose some insufficiently experienced men, or he may in the past have acquiesced in some wrong behaviour on the part of the men. Therefore, if one finds that the immediate and direct cause of the accident was some wrongful act of the man, that is not decisive. One has to inquire whether the fault of the employer under the statutory regulations consists of, and is co-extensive with, the wrongful act of the employee. If there is some fault on the part of the employer which goes beyond or is independent of the wrongful act of the employee, and was a cause of the accident, the employer has some liability. I have stated what, in my view, the proper rule is. For this rule several explanations can be given and several bases can be provided, and I will mention three. First, there is the common law principle that a person cannot derive any advantage from his own wrong. As applied to this case, that means that a person cannot by his own wrongful act impose on his employers the liability to pay damages to him. On that, I will refer to a recent case, Goulandris Bros Ltd v B Goldman & Sons Ltd ( 3 All ER 100), in which that principle of the common law was considered in relation to a different subject-matter.
Secondly (and this is, at any rate, closely allied to the first explanation or principle which I have mentioned), let us consider the effect of the plaintiff's own negligence at common law, that is, before the passing of the Law Reform (Contributory Negligence) Act, 1945. If the accident was caused wholly or in part by the plaintiff's own negligence, he was barred from recovering anything, and his action failed. The Law Reform (Contributory Negligence) Act, 1945, s 1(1), modified that position and provides:
"Where any person suffers damage as the result partly of his own fault and party of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant's share in the responsibility for the damage ... "
That applies only in a case where the accident is caused partly by the fault of the plaintiff and partly by the fault of somebody else; but the peculiarity of a situation such as we have here is that the accident is caused wholly by one wrongful act, and that act constitutes in one aspect a breach of obligation by the plaintiff and in another aspect a breach of obligation by his employer. Therefore, although one could say that the accident was wholly caused by the fault of the plaintiff, one could also say that the accident was wholly caused by the fault of the first defendant. In my view, that takes a case of this kind outside the scope of the Law Reform (Contributory Negligence) Act, 1945, and one has to revert to common law principles to see what the position is. If one does that, the common law principle is still valid to this extent, that, if the accident is wholly caused by the plaintiff's own fault, he is disentitled to recover.
Then there is a third explanation, or basis, which can be provided; that is the need for avoiding circuity of action. Circuity of action would arise in this way. Suppose that the plaintiff said that his employer committed a breach of statutory obligation whereby damage was caused to him, and he was entitled to recover damages from his employer. The employer would reply that by the contract of employment the employee owed a duty to his employer, who, therefore, was entitled to recover damages against the employee, and that the amount of damages which the employer was entitled to recover was equal to the amount of the damages which the employee was supposedly entitled to recover against the employer. If that were the position, the litigation would go round in a circle, and for that reason there is, in my view, a valid plea of circuity of action. The plea of circuity of action is not usually found in these days because that situation is usually sufficiently provided for by the modern provisions for set-off and counterclaim; but it is a valid plea, and again I would cite Goulandris Bros Ltd v B Goldman & Sons Ltd, and certain previously decided cases which are mentioned in that case.
Those are three explanations of the rule, which, in my view, is a valid one, and there may be other explanations too. I ought to say that I think the theory of delegation of the performance of the employer's statutory duty is not a sound explanation. It may be that another explanation suggested, namely, the principle "ex turpi causa non oritur actio", is also unsound.
Having stated those propositions, it is right that I should seek to establish them by means of decided cases. In Vincent v Southern Ry Co ( AC 430), which was decided long before the Law Reform (Contributory Negligence) Act, 1945, was enacted, the principle was shortly stated by Viscount Cave LC (ibid at p 437):
"The duty of a company in any case of danger is an absolute duty to provide a look-out man and to see that he is instructed to act; and if in any case it were proved that the foreman to whom, under the company's regulations, this duty was entrusted had failed in his duty and had not appointed a look-out man, the company might well be held liable for injury happening to any member of the gang other than the foreman himself."
The next case, Smith v Baveystock & Co Ltd ( 1 All ER 531), is the one in which the supposed doctrine of delegation really originates. In Lord Goddard's judgment in that case there is a reference to this factor of delegation of the statutory duty; but I think that, when one reads that passage in Lord Goddard's judgment by itself, without having in mind what has been said subsequently, one finds that he was examining the particular facts of the particular case from a common-sense point of view and that he was not intending to lay down a new principle of law, or inventing a new plea-he was just examining the facts in a particular case. I would also call attention to this, however, that Du Parcq LJ delivered a concurring judgment, and he said in the concluding passage of his judgment ( 1 All ER at p 535), referring to the employers:
"I think they are entitled to say: 'The fault is really yours and not ours. We were quite entitled to rely on you. True, if somebody else had been injured by any failure on your part to fulfil your obligation we should have had to pay the penalty, we should have been responsible to him. We cannot rid ourselves of our obligation. But it is quite absurd to think that if you, who are really the person to blame because you were reasonably and properly entrusted by us with this duty, failed to carry it out, therefore, we have got to pay damages to you'."
There is the principle stated more broadly, and, in my view, it embodies the rule which has been stated.
Next there was Gallagher v Dorman Long & Co Ltd ( 2 All ER 38). There was a discussion as to what is meant by this word "delegation" in that context, and this is the headnote (ibid at p 39), starting from the words "Per curiam":
"The word 'delegation' when used in connexion with the statutory duty of the employer does not mean the same thing as 'employment'. An employer does not, merely by employing his servant to work a crane, delegate to him the statutory duty of seeing that the crane is not overloaded. The theory of delegation of a statutory duty is intelligible where the duty is a positive duty such as to keep the guard of a power saw in adjustment. In the case of a negative duty, such as not to overload a crane, the conception of delegation presents considerable difficulty. The question which arises is whether it can be inferred from the evidence."
Then there was another case, Cakebread v Hopping Bros (Whetstone) Ltd ( 1 All ER 389). That was a case in which there was really blame on both sides. It was held that the employers were in continuing breach of reg 21 of the Woodworking Machinery Regulations, 1922, by having a guard incapable of proper adjustment fitted to the machine, and, further, through their foreman, by permitting the workman to work at the machine when the guard was not in the safest position possible to it; that that breach of statutory duty by the employers was an independent and contributory cause of the accident which the workman could set up against them; and that the workman was not in breach of his duty, under reg 23 of the Regulations of 1922, to maintain the guard in proper adjustment since it was not capable of such adjustment, but that he was guilty of contributory negligence. I venture to think that that is the right way of approaching such a question, namely, to consider who was really at fault.
Then there was Barcock v Brighton Corpn ( 1 All ER 251). There again that case shows that one has to consider the whole facts of the case for the purpose of discovering who is really to blame for the accident. In that case it was held that, even if the plaintiff, to whom the duty of making the tests without supervision had been delegated, was himself guilty of a breach of the statutory regulations, he was, nevertheless, entitled to recover at common law. The defendants had not provided a safe system of working merely by handing the plaintiff a copy of the relevant regulations with instructions to comply with them, and, even if those acts had constituted the provision of a safe system, by a long usage that paper system had been entirely disregarded by the plaintiff's superiors and he was not guilty of contributory negligence because he did not break away from the method of doing the work in the way in which he had always seen it done. That was a decision of Hilbery J and the importance of it on the theoretical side is that there one has the learned judge deciding that performance of a statutory duty was delegated by the employers to the employee in such a case, yet the plaintiff was not debarred from recovering, because of the other facts in the case. In substance and reality, in spite of that delegation, when the whole facts are examined, it was the defendants who were really responsible and they were there held liable.
The next case is Beal v E Gomme Ltd ((1949), 65 TLR 543). The important passage is where Tucker LJ examines the question. He said (ibidat p 546):
"I think that the plaintiff was guilty of negligence which contributed very materially to the injuries that he suffered. I do not think that it is a ninety-nine per cent. case, for it is a fact that the defendants must on the evidence be held to have been aware to some extent of the fact that it was known in this factory that the men did not always comply strictly with this regulation. Although the defendants' witness said that he had never actually seen anybody using the machine unadjusted, he did know that it was done, and steps do not appear to have been taken to reprimand those who acted in that way. Furthermore, as I have said, the fact that there was no actual delegation is an element to be taken into consideration. In all the circumstances, I would hold the plaintiff responsible for his injuries to the extent of eighty per cent., and to that extent this appeal succeeds."
In the same case Evershed LJ pointed out some of the difficulties with which courts are faced in seeking to apply the supposed doctrine of delegation.
In Hilton v F H Marshall & Co Ltd ( WN 81), Harman J sitting as an additional judge of the King's Bench Division, also pointed out the considerable difficulties which are involved in seeking to apply the supposed doctrine of delegation. Then in Manwaring v Billington ( 2 All ER 747) there is a passage at the very end of the judgment of Morris LJ which brings out the point very clearly. Morris LJ said (ibid at p 750):
"The mere fact that the employer must be held to have been in breach of the Building Regulations would not in this case by itself warrant our concluding that the judge's holding was wrong. Particularly is this so when it is remembered that the employer only became in breach of the regulations because of the omissions of the plaintiff to perform duties which were properly and reasonably assigned to him. This employer could not be expected personally to fix every ladder used by his men during painting operations, nor personally to supervise every operation in the course of which the use of ladders was necessary. If he gave clear and adequate directions as to lashing and securing ladders, he was doing what a reasonable employer was entitled to do. I would deem it incongruous and irrational if, on the facts as found by the learned judge, the plaintiff could, in effect, successfully say to his employer: 'Because of my disregard of your reasonable instructions I have brought about the position that you are in breach of your statutory obligations, and so I claim damages from you because of such breach'."
The next case is Stapley v Gypsum Mines Ltd ( 2 All ER 478). which went to the House of Lords. My attention was called to a passage in Lord Reid's speech. Lord Reid said simply this (ibid at p 485):
"In these circumstances it is necessary to determine what caused the death of Stapley. If it was caused solely by his own fault, then the appellant [who was his widow and personal representative] cannot succeed. But if it was caused partly by his own fault and partly by the fault of Dale, then the appellant can rely on the Law Reform (Contributory Negligence) Act, 1945. To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation, it is quite irrelevant in this connexion. In a court of law, this question must be decided as a properly instructed and reasonable jury would decide it."
Finally, there is Johnson v Croggon & Co Ltd ( 1 All ER 121). In the judgment there was a discussion of the question whether there was a delegation or not, but it was also said (ibid at p 125):
"I am satisfied that the only person who was to blame in this matter was the plaintiff. He was negligent and also in breach of the statutory duty imposed on him under the Building (Safety, Health and Welfare) Regulations, 1948, and it was his own negligence and breach of duty which immediately caused the accident and resulting injury. The defendants were not at fault in the popular sense."
Reference was made to the maxim ex turpi causa non oritur actio, but it seems to me that it is unnecessary to bring that principle in; one has the broad common law rule.
That being the position, we have here the case in which the fault of the employer-and it is a fault under the definition of "fault" contained in the definition section, s 4, of the Law Reform (Contributory Negligence) Act, 1945-was a breach of statutory obligation by the employer because, through the employee, the employer did not use the boards; but that fault of the employer consisted of, and was co-extensive with, that of the plaintiff, and in substance this unfortunate accident was due to the fault of the plaintiff in breach of, and in defiance of, his instructions and of regulations which were well known to him. He decided to do the work on this roof without the use of boards. It would not be right, however, to take too severe a view; he was not in any direct sense going to gain anything for himself; he was taking the risk for himself with a view to getting the work done. Yet it is quite impossible to impose a liability on his employer, because the plaintiff himself decided to take the risk and not to use the boards, and in those circumstances the plaintiff must fail.