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Marshall v Gotham Co Ltd [1954] AC 300, HL
Comparison of ‘practicable’ and ‘reasonably practicable’
precautions.
Facts
Marshall, a gypsum miner was killed when a large piece of the mine’s
marl roof fell on him. The normal—and ordinarily very
effective—method of guarding against falling roof was to inspect
each area for visible faults, and then to tap the roof with a
long-handled hammer; if the noise indicated that the roof was
unsound, the unsound portion was brought down before the
mining proceeded. But the fall that killed the plaintiff was not
detectable by this or any other means. As Lord Reid explained, in
these “very rare” cases of “slickenside,” (unusual geological
condition).
M’s wife alleged a breach of statutory duty (under the Metalliferous
Mines General Regulations 1938) and claimed compensation from the
employer.
The Decision
The employer was not liable for a breach of statutory duty because
M’s death had not been caused by any failure by them to take
reasonable steps to secure the roof.
Note
The only way to make a roof safe from slickenside was to shore it
up, and since the condition was undetectable, every roof in the mine
would have to be shored up. “There was evidence that that was never
done in gypsum mines, and that in this mine the cost of doing so
would have been so great as to make the carrying on of the mine
impossible.” However, the evidence also showed that after the
accident, additional precautions were taken in the area near the
accident: a hydraulic prop was used unless the roof was thought to
be thin, in which event that area was bypassed. The plaintiff argued
that it would have been reasonably practicable for the defendants to
use props (as they did after the accident). The trial judge found no
negligence at common law, but ruled in the plaintiff’s favour on the
statutory claim, reasoning that hydraulic props should have been
used before as well as after the accident. The Court of Appeal
unanimously reversed, on the ground that because the risk was not
reasonably foreseeable it was not reasonably practicable to guard
against it. As Jenkins, L.J., explained, “it cannot fairly be said
to be ‘reasonably practicable’ to guard against a
contingency that could not reasonably have been foreseen, inasmuch
as its occurrence would be contrary to all previous experience.”
Thus, although Jenkins mentioned Asquith’s disproportionate-cost
test, he and the other judges in the Court of Appeal had no occasion
to apply it. In the House of Lords, by contrast, it was the issue of
precaution
costs on which the case turned. Rather than focusing on reasonable
foreseeability, Lord Oaksey invoked Lord Atkin’s disproportionate-
cost test:
W]hat is “reasonably practicable” depends upon a consideration
whether the time, trouble and expense of the precautions suggested
are disproportionate to the risk involved. It is conceded in the
pre-
sent case that it was not reasonably practicable to make the roof
se-
cure by timbering, and to have attempted to make it secure by
pneumatic props in some places and by leaving it un-mined in others
when no slickenside had ever occurred for a period of 20 years was
not, in my judgment, reasonably practicable.
“If a precaution is practicable it must be taken unless in the
whole circumstances that would be unreasonable. And as men’s lives
may be at stake it should not lightly be held that to take a
practicable precaution is unreasonable.”
Lord Reid
Measures may be ‘practicable’ which are not ‘Reasonably
practicable.’
Halsbury’s Laws of England, Vol. 20 para 553
The employer was not liable for a breach of statutory duty because
M’s death had not been caused by any failure by them to take
reasonable steps to secure the roof.
Full text
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