Damages-Workmen's Compensation-Amount of damages confined to pecuni-

ary loss to heirs

Reception-Workmen's Compensation-Employer's Liability Act' 1880
Reception-Wrongful death-Lord Campbeli's Act

Workmen's Compensation-Employer's liability-Negligence by employer's su-
perintendent-Contributory negligence=-Assumption of risk by employee-s-
Damages confined to pecuniary loss to heirs

When an employee is killed in the course of employment because he
was not given the proper tool for his Job, the employer is liable to the
heirs for their pecuniary losses if either the employer himself or his super-
intendent was negligent and the employee neither assumed the risk nor was
contributorily negligent, because: (1) the employer has a duty towards his
employee "to furnish the proper tools; (2) the principles contained in the
English Workmen's Compensation Act 1880 are part of the Iaw of Sudan;
(3) the principle of the Lord Campbell's Act is part of the law of Sudan.

Cribb v. Kynoch Ltd. I1907] 2 K.B. 548.

Howells v. Candore Steel Co. (1874) L.R. 10 Q.B. 62.
Monaghan v. W. H. Rhodes & Son [1920] 1 K.B. 487.
Smith v. Baker & Sons (1881) A.C. 325;

Thomas v. Quartermaine (1887) 18 Q.B.D. 685.
Wilson v. Merry (1868) L.R. 1 Sc. & Div. 326 ..

Young v. Hoffman Manufacturing Co., Ltd. [1907] 2 K.B. 646.
Civil Justice Ordinance 1900, Ch. ll.

Workmen's Compensation Ordinance 1908.

English Employer's Liability Act 1880.

English Fatal Accidents Act 1846.

Appeal

The' facts of this case as they appear from the record are as fol-
lows..

The deceased, Ibrahim Khalil, entered the service of Ahmed
Abdel Moneim and Brothers (the appellants) some months before his
. death, and was employed for the whole period in their flour mill, where
his duty was to move the running belt of the engine from the neutral

* Court: Bell C.J., Owen lind Hamilton-Grierson JJ.

pulley to the gear pulley, and vice versa. He. was provided with a
crowbar for that purpose, which he used until the day of his death.
There was no evidence that he even knew of the existence of a fork
which was a safe instrument for moving the belt. In the course of
moving the belt with the crowbar he suffered injuries of which he died.
His heirs sued his employers for damages for negligence, and recovered
damages. Ahmed Hassan Abdel Moneim and Brothers appealed from
the decree of the High Court (Peacock J.) dated April 1~, 1926.

January 3, 1927. Bell C.J.: The heirs of Ibrahim Khalil sued
the appellants for damages on the ground that. his death was due to
their negligence. The High Court awarded them £E.118 damages,
and, this appeal is from that decision. The grounds of appeal may
conveniently be considered under four headings, as follows:

(1) There was' no negligence at all on the part of the appellants,
or on the part of anybody else, except the deceased, and, even if there
was negligence on the part of one of the servants of the appellants
who had the general superintendence of the mill, the appellants
themselves are not liable, because they had delegated their duties to
the superintendent.

(2) Even if there was negligence on the part of the appellants
or their servants, the respondents are not entitled to succeed, because
the death of the deceased was due to his own contributory negligence.

(3) Under English common law the heirs of the deceased would
have had no remedy, and there is no justification for adopting in this
country the provisions of Lord Campbell's Act,! which altered the Com-
mon Law in this respect.

( 4) The damages awarded are excessive, and a wrong basis
was taken in assessing them.

The argument of the appellants, as I understand it, is as follows:

The responsibility of the master towards the servant depends on the
contract between them. The master cannot, therefore, be liable to the
servant, unless there be negligence on the part of the master in that
which, he the master, had contracted with the servant to do. There
was no express contract that the master should personally superintend
the work, and no such contract can be implied in law from the rela-

~ Editor's Note: The Fatal Accidents Act 1846, 9· & 10 Viet. 6.93 often
referred to as Lord Campbell's Act.

tionship. And, hence, when the master has delegated his duty to a
competent superintendent, his responsibility ceases.

Several cases were quoted by the appellants in support of their
contention. Wilson v. Merry (1868) L.R. 1 Sc. & Div. 326 and
another early case Howells v. Landore Steel Co. (1874) L.R. 10 W.B.
62 were concerned with ventilation of mines, and it was held that the
duty of arranging a system of ventilation might be delegated. In the
judgement of Wilson v. Merry, Lord Cairns said ''What the master is,
in my opinion, bound to his servant to do, in the event of his not per-
sonally superintending the work, is to select proper and competent per-
-sons to do so, and to furnish them with' adequate materials and re-
sources for the work", Cribb v. Kynock Ltd. [1907] 2 K.B. 548 and
Young v. Hoffman Manufacturing Co. Ltd. [1907] 2 K.B. 646 relate
to the duty of the employer to give instructions for the avoidance of
danger. The duty to give such instructions was not disputed. The
question is, whether the instructions were given in a proper manner ..
In certain circumstances, a notice posted in a prominent place might
be sufficient, in others, -instructions given by a competent foreman. It is
a question of fact in each' case whether proper iostroctioos were given.
IIi the judgement in Young v. Hoffman Kennedy LJ. at p. 656 said,
"In the absence of a special contract between employer and em-

- ployed, it is an implied term of the relation that the master undertakes,

in the view of common law, to use reasonable care (a) in the selection
of competent fellow servants; (b) in having and keeping his machinery,
the use of which 'might otherwise be dangerous to the servant in his
employment, in proper condition and free from defect; and (c) where
the employment involves the handling by the servant of machinery
which . . .' may prove dangerous to the servant unless he is instructed,
to take reasonable care to avert that danger by such instruction as will
be sufficient to enable the servant to avoid danger." For breach of any
part of this implied contract causing injury the master may be held
liable to his servant, unless he can shelter himself under the defence of
contributory negligence on the part of his servant or a possible applica-
tion of the maxim 'volenti non fit injuria'. Other cases, which might
be cited in support of the proposition that it is the duty of the employer
to take reasonable care to provide proper appliances, and to maintain
them in proper condition, are Monaghan v. W. H. Rhodes & Son
[1920] 1 K.B. 487 and Smith v. Baker & Sons [1891] A.C. 325.

The conclusion to be drawn from these cases, in my opinion, is
that the duty. of the employer to provide proper appliances, which is
the duty under consideration in this case, remains, though it may be

that he has discharged this duty, if the circumstances are such that he
might reasonably be found to have relied on the expereince of the
persons who supplied the appliances. It is a question of fact in every
case whether the employer has discharged this duty.

The court below found as a fact that the appellants had not dis-
charged this duty. Although the court found that. the negligence was
on the part of the appellants personally, it also relied on the provisions
of English Employer's Liability Act 1880. The general effect of this
Act is to modify the doctrine of common employment, so that, whereas
at common law the servant could only recover compensation when he
proved negligence on the part of the employer personally,' he can now
recover where the employer has delegated his powers to a superin-
tendent, and such superintendent has been guilty of negligence. The
appellants argue that,' although English common law is applicable in
this country, English statute law is not, unless it has specifically been
made applicable by ordinance.

I am unable to assent to this proposition. English common law
has been modified by' statute from time to time, because it has been
found. to be unsuited to changed conditions. The law to be admin-
istered in this country is laid in Chapter II of the Civil Justice Ordi-
nance 1900, and, in my opinion, the Sudan Courts are fully entitled
to consider English statute law and to adopt or reject it, according to
whether or not it is in consonance with the provisions of Chapter II,
having due regard to conditions in the Sudan. The provision of the
Employer's Liability Act 1880, making the employer liable for the
negligence of some person in his service having general superintendence,
is incorporated in the Workmen's Compensation Ordinance 1908. This
Ordinance is of limited application, in that it applies to certain classes
of employers only, but, on the other hand, its object was to provide for
cases of injuries for which there is no remedy under the ordinary law;
it is not concerned with remedies in cases of negligence where there
already was a remedy under the ordinary law. The object of section
6, therefore, appears to me to be to make clear the circumstances in
which an employer was considered to be liable for the negligence of
his servants under the ordinary law. I should have the greatest dif-
ficulty in holding that persons, to whom the Ordinance applies, are in a
different position when negligence exists from those to whom the Ordi-
nance does not apply.

Therefore I think that the learned Judge was right in adopting
these provisions of the Employer's Liability Act 1880, in holding, as

. did, that it is not a good defence in an action for negligence to raise
the doctrine of common employment, if the negligence was the negli-

        gence of an employee exercising general superintendence;         

gence. The Judge of the High Oourt^l found as a fact .that there was
negligence, and that it was the negligence of the appellants themselves,
and not of their superintendent. The negligence' found was the omis-
sion to use and keep in order an instrument for moving the belt. The
evidence shows th~t this was the normal instrument for the purpose,
and that' an inferior instrument was provided. 'In other words, ade-
quate materials were not provided. In my opinion, it is not possible
to say that there was no evidence upon which the court could arrive
at this finding of fact. From what has already been said in this judge-
ment, the appellants would not be in a better position, if the finding
of fact was that the negligence was that of the' superintendent and not
of the ~ppellants personally. .

The defence of contributory negligence' and. volenti non fit in-
juria must next be considered. The contributory negligence alleged is
the use of the crowbar in an improper manner; the risk which 'the de-
ceased took was. the habitual use of the crowbar instead of the fork.
Contributory negligence rests upon the view that, although the de-
fendant has been in fact negligent, yet the plaintiff by his own care- .
lessness severed the causal connection between. the defendant's negli-
gence and the accident,' so that the defendant's negligence is not the
proximate cause of the injury. The court below found as a fact that
contributory' negligence on the part of the deceased -had not been
proved, for the reason, as I understand the judgement, that" even if the
deceased was guilty of using the crowbar in an unaccustomed manner,
yet the proximate cause of the accident was the negligence of the
appellants. in failing to supply proper tools.

The maxim volenti non fit injuria was mentioned oy we appel-
lants' counsel at the outset of the case; but the question was not ex-
plicitly made an issue, and it is not specifically referred to in the judge-
ment, nor is it mentioned in the statement of appeal. But I think that
I must assume that the issues to which the appellants assented .•...•
e~ecially Nos. 7 and 8-contain the point by implication; and that
the learned Judge considered it, in' connection with the question of
contributory negligence, upon which he gave a definite finding, although
I am bound to say that I think the court ought to 'give" a definite and
unmistakeable finding on every issue framed. In considering the de-

fence of volenti non fit injuria the question in each case is, not simply
whether the person knew of the risk, but whether the circumstances
are such as necessarily lead to the conclusion 'that the whole risk was
voluntarily incurred by him. Knowledge is not conclusive, where it is
consistent with the fact that, from its imperfect character (as where
the person is of imperfect intelligence), or otherwise, the entire risk,
though in one sense known, was not voluntarily encountered.

Contributory negligence and the voluntary undertaking of the
risk are matters of fact. In my opinion there is evidence upon which
tlie court could decide in favour of the respondents on these questions

I have already considered the application of English statute law,
and I do not think it necessary to say any more about Lord Campbell's
Act than that, if the court felt that it required written authority to sup-
port the action of the heirs or dependants of a deceased where death
has been caused by negligence, in circumstances which, would if death
had not ensued have entitled the injured person to sue, then the court
was right to rely on Lord Campbell's Act.

'There remains the question of damages. The court below
seems to have assessed the damages as if they were compensation under
the English Workmen's Compensation Acts. This method of asses-
ment is clearly wrong, as those acts have nothing to do with this case.
The damages must be proportionate to the injury resulting -from the
death, and must be confined to the pecuniary loss sustained by the
family. It is impossible to make an exact arithmetical calculation of
the amount of damage suffered, and a reasonable view must be taken
after a survey of all the- circumstances. There is no evidence what-
ever before us on which an assessment of damages can be based.

The conclusion is, therefore, that, .except on the question of dam-

• ages, there is evidence on which the court could arrive at its finding on
  'matters of fact; and that, when the findings of fact are accepted, the
  principles of law which have been examined make the appellants liable
  to pay damages.

Therefore, apart from the amount of damages, the appeal must
be dismissed. As regards the damages, the case must be sent back to
the High Court for evidence to be taken, and an assessment made.
The respondents have paid no court fees at all, and, in my opinion,
if they seek to increase the amount of damages awarded they must
first be required to pay the appropriate fees.

The. costs will abide the event.

Owen J.: I wish to say at once that I agree with the principle
indicated in the judgement of the~Chief Justice, that the courts of
the Sudan are entitled to adopt or reject the English common law,
as modified by statute or not, according to whether it is in consonance
with the principles of justice, equity and good conscience, having re-
gard to conditions in this country. We are guided but not governed
by English common and statute law.

Prima facie, therefore, a dependant is entitled to claim damages
based on his pecuniary loss where, owing to the negligence of a master,
or of some one placed in a position of superintendence by that master,
the person upon whom he is dependent meets his death, by reason of
such negligence, and in circumstances where, if death had not occurred,
the injured person himself might have recovered damages.

The learned Judge of the court below has found as a fact that
failure to repair or provide a malawina for this engine was an act of
negligence by the appellants. It was a breach by them of their obliga-
tion to provide machinery free from defect. H it can be said that
the failure to fit a malawina makes a machine defective, I agree, but
I have grave doubts about it and I should have been more inclined to'
suggest that the nature of the substitute provided to operate the belt
should form the basis of the test of negligence. However, such ~ the
finding, and so it will stand.

But the learned Judge-and it is here that I regretfully and with
natural hesitation venture to differ from the judgement of the Chief
Justice-the learned Judge of the court below has gone on to assume
that this, apart from contributory negligence, is enough and the re-
spondents are entitled to succeed. He has ignored, in my opinion, the
one' real defence raised by the facts' of the case. It is a question of
fact, as I shall show, but, in my opinion, no trial, where the facts
are such as they are here, is complete without a specific finding one
way or the other. It is, in effect, the application of the maxim
"volenti non fit injuria."

, It is obligatory for an employer to keep machinery, which might
otherwise be dangerous to his servants, in proper condition and free
from defect. But where the servant not only is aware of the danger
arising from the defect but, from the very nature of his work in con-
nection with .it, has full comprehension of the risk he runs, there exists
almost incontrovertible evidence that the servant has contracted to
take upon himself the risk resulting from his master's wrongdoing.

This is a question of fact, as I have said, and must invariably be the
subject of a finding by the Judge or jury. ' The question in such a case
as this, is whether the circumstances are such as necessarily to lead to
the conclusion that the whole risk was voluntarily incurred by the
plaintiff. Knowledge, as Bowen L.J. said in Thomas v, Quarter-
maine, (1887). 18 Q.B.D. 685 is not a conclusive defence in itself.
But when it is knowledge in circumstances that leave, no inference
open but one, viz. that the risk had been voluntarily encountered, the
defence seems to me complete. 'A particular consent may be in-
ferred from a general course of conduct. Where the act is the plain-
tiff's own act, how. can he be said not to consent to the thing which he
himself is doing? It must be remembered that this is not the case
of latent defect. Where the essential cause of the risk is the act of' the
complaining plaintiff himself, he cannot say he had not contracted to
do it. The act which was the proximate cause of the ~jury was the
act of the deceased himself. It was the act he was employed to do,
and it was obviously the act he had contracted to do. Who could
better appreciate the risk entailed in it? I repeat it is a question of
fact, and of course, the mental and physical capacity of the deceased
to comprehend and appreciate the risk is a factor which must neces-
s~rily influence the finding.

Lord Watson in Smith v, Baker & Sons (1891) A.C. 325, 357 set
out the law in such cases very clearly. The risk may arise from a
defect in a machine, which the servant has engaged to work, of such, a'
nature that his personal danger and consequent injury must be pro-
duced by his own act. If he clearly foresaw the likelihood of such
a result, (or I may add, had good reason for foreseeing the likeli-
hood), and, notwithstanding, continued to work, I think that, accord-
ing to the authorities, he ought to be regarded as volens. ;

Ibrahim Khalil's death was caused by the crowbar used for the,
purpose of moving the belt from one pulley to the other. ,There is
no evidence that he even saw the malawina, or safety" device, in use,
either in th~ppellants' mill, or anywhere else. There is no evidence
that he knew of its existence, for, when the appellants acquired the
machine, the malawina was out of action. Can it be said that a man'
who does this act voluntarily has not, contracted to take the obvious
risK,:.of injury incidental to it upon himself? Can there be a clearer
aiise of "volens?" What was the contract between the parties? Sa:ys

, the employer: "Will you for three pounds a monthmove this belt
from' neutral to gear with this crowbar?" And the servant answers