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McWilliams (or Cummings) v Sir William Arrol [1962]
The breach of statutory duty. No liability if employee refuses to
wear safety devices.
A civil right of action for a Breach of Statutory Duty arises if it
is shown that (inter alia)
the damage or injury was caused or was materially contributed to by
the breach.
Facts
A steel erector fell seventy feet from a steel tower in the building
of which he was assisting. He was killed by the fall and his widow
and administratrix (one who administers the estate of an intestate)
claimed damages from his employers for negligence and from the
occupiers of the shipyard in which the tower was being built for
breach of statutory duty under the Factories Act 1937, s26(2), in
failing to provide a safety belt for use by the steel erector. If a
safety belt had been worn by the deceased he would not have been
killed by the fall. The deceased was an experienced steel erector,
and on the evidence it was highly probable that he would not have
worn a safety belt if one had been provided. The employer had
normally made safety belts available but, as they were not being
used much on this particular site, the belts had been taken away for
use elsewhere.
The Decision
It was held by the House of Lords that assuming that the employers
and the occupiers of the site were in breach of their respective
duties in not providing a safety belt, nevertheless they were not
liable in damages because their breach of duty was not the cause of
the damage suffered since (a) on the evidence the deceased would not
have worn a safety belt if it had been provided, and (b) there was
no duty on the employers to instruct or exhort the deceased to wear
a safety belt.
Note
Before a claim for damages for breach of statutory duty can succeed,
the employee must prove that the employer’s action or inaction
caused the injury. If the employer can show that the employee
brought the injury upon himself by failing to take advantage of the
safety measures then no liability will fall upon the employer. In a
case where safety measures are not provided or are not available,
the employer will still escape liability if it can be shown that the
employee would not have used them even if they had been available.
There are four steps to proving causation in a case like this:
1. There existed a duty to supply a safety belt
2. There was a breach of that duty
3. That if there had been a safety belt the employee would have used
it
4. That if the employee had used it he would have suffered no injury
or a lesser injury than he did.
If one of these links in the chain of causation is broken a claim
for damages must fail. Furthermore, there is no rule that employers
are under a duty to insist that employees do actually use safety
devices.
Don't forget this is Factories Act 1937, s26(2), what would be the
courts decision if it happened in 2005?
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