RENOLDS ALUMINIUM CO. v. ABBAS EL NAIEM
(COURT OF APPEAL)
RENOLDS ALUMINIUM CO. v. ABBAS EL NAIEM
AC-REV-168-1968
Principles
Negligence—Strict liability—Liability of employer is absolute in cases of inherently dangerous machines
Dangerous Things—Inherently dangerous machine—Risk to life and body is really substantial
If the machine which caused the injury to employee is inherently dangerous, then the employer will be absolutely liable irrespective of any negligence on the part of the employee.
Inherently dangerous machine is a sort of machine from which the risk to life or body is really substantial, and no precautions whatsoever would avail against it.
Advocates: Abdin Ismail for the applicants
Abdel Wahab M. Abdel Wahab ... for the respondent
Judgment
Dafalla El Radi Siddig J. October 20, 1969 :—Respondent, a worker in applicant's aluminium factory sued applicant for recovery of £S.1176.400m/ms. being compensation and damages for pain, consequential to an injury sustained while working a machine in the factory, which injury resulted in a permanent disability in his right hand The District Court passed judgment for respondent for £5 600.000m/ms The Province Court upheld the decree. Hence this revision before us.
The facts may be briefly reduced into writing thus: The machine which caused the injury can b worked at a rapid speed as well as at a low speed. It has brakes which, if applied, stop the operation. The nature of the work makes it inevitable that the worker has to insert the metal into the machine. While working the machine at the high speed respondent’s hand got caught by the upper part of the instrument. Four fingers of respondent’s right hand were amputated by the machine.
It is contended for applicant that His Honour the Province Judge failed to absolve his duty qua an appellate authority in that he did not evaluate the evidence upon which the pronouncement of the District Court was made. It is further added that applicant acted reasonably in that he provided for all the precautions of safeguard against injuries being sustained by the worker. It is asserted for respondent in reply, that His Honour the Province Judge was well aware of the points raised by applicant and that he did actually mention all of them at the outset of his judgment.
To my mind the attack levelled at the Honorable Province Judge’s opinion is of no avail to applicant, simply because His Honour the Province Judge based his opinion solely on a precedent which is an authority establishing liability without fault in similar circumstances. The argument for applicant pertains to negligence while the precedent deals with strict liability.
Although the learned District Judge expressed the view that there is a precedent which governs the situation, at all events, yet at some other part of his opinion, it seems, he spoke of liability based on fault. He said that there is no use working the brakes after the machine causes injury. He went on to say that warning respondent gives rise to two notions, namely, that either respondent is not a skilled worker or that the machine is inherently dangerous. He concluded that if either of the above two assumptions be true, then applicant must have failed to absolve his duty of care towards respondent. However, since both courts relied on the precedent, being bound by the doctrine of stare decisis, any opinion qua ratio decidendi which they express contrary to the precedent will be per incuriam. That being the case, we qua the highest judicial body in this realm are left with the difficult task of settling the interesting and practical question of law raised by this revision.
The learned counsel for applicant contends that His Honour the Province Judge got confused in considering the liability under the Common Law and that under the Workmen’s Compensation Ordinance. He further asserts that in Common Law there is no conception of liability without fault in the light of the merits of the case. In reply it is stated that neither court has spoken about fault, and that both lower courts are bound by the precedent, Modern Aluminium v. Hamad El Nur (1965) S.L.J.R. I, which holds that if a machine is dangerous, a reasonably foreseeable source of danger to the employee, the employer will be liable in negligence if the foreseen danger occurs to the employee.
That both the Province Court and the District Court are bound by the doctrine of stare decisis had heretofore been mentioned. I failed to convince myself to agree with learned counsel for applicant in that the liability under the Common Law should be in the circumstances based on fault. His view is in conformity with the orthodox theory of liability and undoubtedly it can find a lot of historical support.
I want to make it clear at this point, that it is strict liability in the Common Law in contradistinction to such liability as imposed by the legislator which is our concern.
I think there is no controversy about the fact that it is the Common Law which gave us both the heritage of strict liability and liability based on fault. See Shulman and James, Cases and Materials on Torts (2nd ed., 1952), p. 118: The contribution of the Common Law to the concept of strict liability is fairly big To quote only a few examples, the liability for libel, mansuetae nuturae, and the rule in the celebrated case of Rylands v. Fletcher (1866) L.R. 1 Exch. 265 may suffice to illustrate my contention.
Salmond, Torts (14th ed., I9 pp. 41—42, postulated the decisive factors from the trend of past decisions which affected the court’s mind and influenced their imposing liability in tort. It is apparent that change in attitude, an assay which the court took upon themselves, is expedited by the need to keep law in pace with, if not abreast of, the changing phases of the human society; the legal process being essentially a social process. Indeed, the notion which is entrenched in our minds that the law is of organic nature, necessitates innovation, if the law should ever conform with the zeitgeist. It did not escape the mind of this court that it is the circumstances surrounding each case which are vital in directing a court’s trend of thinking. So, too, the circumstances may dictate narrowing rather than widening the purview of liability. I venture to express the view that the social and economic factors are of paramount importance in the conscientious choice between strict liability and liability based on fault.
Perhaps the automation in this era of history makes it distinct from preceding times. It is obvious that despite the uses of automation in the advancement of human life yet it has its own evils and perils. As to the invoking of the concept of strict liability in connection with harm caused by the machine, we are by no means pioneers in endeavouring to establish it as a legal norm. Ta cite an excerpt from Learned Hand in Shulman and James, Cases and Materials on Torts (2nd ed., 1952), pp. 142— 143, he said:
“The current theory is that when the conduct of an industry involves perils peculiar to itself and necessarily results in injuries which can be put down as inevitable incidents to its continuance, insurance of the individual on whom fate chances to alight is a proper cost of production, and should be borne in mind in the end by those who demand and enjoy the service."
The concept of ultra-hazardous activities is an American proposition and it may seem exotic to the mind legally trained after the English fashion. According to English law the Law of Torts deals with the acts of the defendant, be they misfeasance or nonfeasance, but not with activities. This difficulty is removed by applying the foreseeability of the harm test which brings the controversy within the ambit of the tort of negligence.
However, even in England the course we are now thinking to treat had in recent years been the subject of legal discussion which led to yet unsettled controversy. It seems from the authorities that this area of
the law is not yet settled. To quote Lord Justice Denning in White v. White [1949] 2 All E.R. 3 he said:
“Recent legislative and judicial developments show that the criterion of liability in tort is not so much culpability, but on whom should the risk fall."
On the other hand dicta from Lord Goddard in Bell v. Travco Hotel Ltd. [1953] 1 Q.B.. 478 and Harman j. in Cooke v. Kent (1949) 82 LI.L 825 give an unequivocal support to the view that not for every injury a person sustains in the course of everyday life can a person be compensated in the absence of breach of a duty which the defendant owes him.
It is clear that the difficulty which presents itself before us cannot be fully identified with the position of the labourer in England, where the workman who is injured in the course of employment is compensated by recovering benefits from some administrative agency. Salmond, Torts (14th ed., 1965), p. 3 Hence, if that be the position in England the state of the law in that country should in no way hamper our faculties for innovation where there is a hiatus in our law allowing us room to invoke our concepts of justice.
In the light of the facts adumbrated above, and the lines which follow, it is my intention not only to approve of the ratio decidendi in Modern Aluminium Works v. Hamad El Nur (1965) S.L.J.R. r, but also to give it my unbridled support by focusing on aspects which the judgment left undiscussed. To my mind, what made this judgment an authority for strict liability is the holding that the employer is responsible even if the worker is careless in a manner which is expected by his employer.
I will now reflect briefly on the remaining aspects pertaining to the dispute. First it is my contention that since the nature of the instrument demands the inserting of the hand in it, it is foreseeable that it might do some harm. The assertions as to the two speeds and the brakes, cannot provide a satisfactory answer as to the nature of the work• in the machine. No precautions, it seems, can be made inside the part of the machine where the metal is inserted without changing its design. Hence it is my conclusion that there is a harm-inflicting potential in the machine owing to its very nature, which potential cannot be guarded against. Secondly, the proprietor is in a better position to distribute the loss over a bigger sector of the society. This may be done through insurance or the profits which are provided by the consumer. The invoking of this device, if I may borrow Mr. Justice Holmes’ expression, in this process of social engineering is intended to remove a hardship which will befall the worker who is not in a position to insure, and hence cannot be left without a remedy.
It is evident that I need not linger on the question of warning respondent not to work the machine at the high speed; Nor do I need to discuss the quotations made by the learned counsel for applicant from Charlesworth, Negligence (4th ed., 1962), reminding the courts to see that the common law duty in the relationship of respondeat superior should not be enlarged.
Ergo, it is my judgment that the decrees of both the Province Court and the District Court be upheld. No order as to costs.
B. M. A. Baldo J. November 21, 1969 :—I dissent. I have had the opportunity of considering the opinion of my learned colleague Dafalla J., and I desire to express my own opinion by starting with a statement Of the relevant facts. Respondent is a skilled worker in the Aluminium Factory of applicants. The machine respondent is operating has two speeds a high and a slow one. The machine is fitted with brakes which may be applied in the case of high speed operations. Respondent received instructions in using this particular machine. Respondent was warned not to do high speed operation particularly when handling big plates of metal. Contrary to these instructions respondent inserted a big plate in the machine and operated it on high speed. Respondent’s right hand was caught, and he lost four of his fingers. Respondent claimed £S.1000.000 m/ms. in damages in addition to £S. to which he is entitled under the Workmen’s Compensation Ordinance. The learned District judge, relying on the decision of Modern Aluminium Works v. Hamad El Nur (1965) S.L.J.R. i, held that since the machine which caused the injury is inherently dangerous, applicants are liable irrespective of any negligence on their part or any carelessness on the part of respondent. This decision was upheld by His Honour the Province judge on the same reasoning. That is why it has been impeached.
The contentions of the learned advocate for applicants are that applicants have discharged the duty of care imposed on them by taking reason able care for the safety of respondent under the Common Law and the statutory law, that the duty of the master is not an absolute one, and that in some cases a high standard of care may be required. It is con tended for respondent that the case of Modern Aluminium Works v. Hamad El Nur, on which the decision of the lower courts was based, made the liability of the employer absolute in case of inherently dangerous machinery.
The simple issue is whether an employer who carries on an inherently dangerous operation in his factory is absolutely liable for the injury caused to the employee. At Common Law an employer owes a duty of care to his employees to provide for them a safe system of working. The degree of care which the law requires is “that which is reasonable in the circumstances of the particular case.” What is reasonable is a question of fact, the law does not require the greatest possible degree of care. My opinion is that both the learned District judge and His Honour
the Province Judge in deciding this case erred in relying mainly on the case of the Modern Aluminium Works which is distinguishable.
In the latter case.:
“in one hour the machine is in peril 1,200 times. In eight hours the operator puts his hand in the dangerous zone 9,600 times, if the hand was not withdrawn quickly every time it would be crushed by the machine".
In our case the machine is not so dangerous; it is a machine with slow and high speeds and with brakes, and it is under the complete control of its operator. It cannot really in this age be called an inherently dangerous machine.
It is in evidence and quite clear from the judgment of the learned District Judge that respondent has been for a long time in the employment of applicants, that he had been given instructions how to operate this machine, that he has been particularly warned not to use the high speed, and that respondent operated the machine at that speed to secure additional wages and caused injury to himself. It is also established that applicants have satisfactorily complied with the requirements of the Workshop and Factories Ordinance, It would be unfair in these circumstances where respondent is at fault and deliberately disobeyed the instructions for his own sake to hold applicants liable by analogy of a quite different case. Respondent is under a duty to act reasonably and to take care of himself.
In Qualcast Ltd. v. Haynes [1959] 2 All P.R. 38 the House of Lords emphasized that whether an employer has broken his duty of care is a question of fact, the answer to which depends entirely on the circum stances of each case; and that, therefore, what one court decides on the facts of one case cannot bind another court confronted with the facts of a later case.
“What is a proper system of work is a matter for evidence not for law books. It changes as the condition of work changes. The standard goes up as we become wiser. It does not stand still as the law sometimes does.” Per Lord Denning.
On the facts of the case itself it was held that the employers had discharged their duty towards the plaintiff (an experienced workman) by providing him with protective clothing and that they were under no duty to bring pressure to bear on him to use such clothing. Again, the following passage from the judgment of Viscount Simonds in Smith V. Austin Lifts Ltd. [1959] 1 All P.R. 81 provides some guide as to the direction in which the courts are at present moving in these actions:
"I deprecate any tendency to treat the relation of employer and skilled workman as equivalent to that of a nurse and imbecile child."
Moreover, the fact that. an employer fails to adopt the usual safety precautions of his trade does not necessarily mean that he is negligent
—Brown v. Rolls Royce Ltd. [1960] 1 All E.R.577.
Modern Aluminium Works v. Hamad El Nur was decided on the particular facts of the case and it lays down no principle of law. It is a short and concise judgment in which an Honorable Judge of the High Court acting on behalf of the Chief Justice dismissed an application for revision summarily. Such a case does not have the force of a binding precedent, and the legal points have not been adequately discussed. If such a precedent is understood to have created a new branch of strict liability, it must, in my opinion, be considered as bad law, and it should be overruled, because it would create a sort of injustice and at the same time it would hamper the development of industry in a country that is just entering the world of industry. The fact that the work carried on is of an inherently dangerous character is perhaps a ground that the standard of care should be high; it does not by any means justify creating a new branch of strict liability. It cannot be said that applicants owed respondent an absolute duty of care.
"The duty of the master is not an absolute one. It can be per formed by the exercise of due care and skill, and while a high standard of care is exacted, it is desirable in these days, when there are in existence so many statutes and statutory regulations imposing absolute obligations on employers, that the courts should be vigilant to see that the common law duty owed by a master to his servants should not be gradually enlarged until it is barely distinguishable from his absolute statutory obligations."
Charlesworth, Negligence (4th ed., 1962), p. 844.
The medieval legal theory provides that if the operation is so inherently dangerous that no degree of care, however scrupulous, can prevent the accident those who choose to carry it on must do so at their peril. It is a theory that puts employers in the position of insurers. It is an out-dated theory that has been severely attacked in the famous English case Read v. J. Lyons & Co. Ltd. [1947] A.C. 156. The American Re statement of the Law of Tort, Vol. 3, section 319, speaks of “ultra- hazardous activity.” That attached qualifications to it which might well cover the circumstances of this case. The modern tendency has always been to restrict the strict liability rule created by Rylands v. Fletcher, and the trend is towards limiting the sphere of liability without fault.
"An attempt to import into the general law of negligence a similar strict liability upon persons carrying on an ultra-hazardous activity was made in Read v. J. Lyons & Co. Ltd. [1947] A.C. I56 and was negatived by the House of Lords"
per Diplock in Doughty v. Turner Manufacturing Co. Ltd. [1964] 2 W.L.R.240.
In Read v. I. Lyons & Co. Ltd. (an explosion in an ammunition factory) Norah Read who was an inspector of ammunitions who was then in the factory was injured; the trial judge held that the defendants were strictly liable as they were carrying on an ultra-hazardous activity. The Court of Appeal reversed the decision, and it was upheld by the House of Lords. The following statement from the judgment of Lord Macmillan at p. 172 is perhaps relevant to the point in issue:
"But I do not think that it has ever been laid down that there is absolute liability apart from negligence where persons are injured in consequence of the use of such things or the conduct of such operations. In truth it is a matter of degree. Every activity in which man engages is fraught with some possible element of danger to others. Experience shows that even from acts apparently innocuous injury to others may result. The more dangerous the act the greater is the care that must be taken in performing it. This relates itself to the principle in the modern law of torts that liability exists only for consequences which a reasonable man would have foreseen. One who engages in obviously dangerous operations must be taken to know that if he does not take special precautions injury to others may well result. In my opinion it would be impracticable to frame a legal classification of things as things dangerous and things not dangerous, attaching absolute liability in the case of the former but not in the case of the latter. In a progressive world things which at one time were reckoned highly dangerous come to be regarded as reasonably safe. The first experimental flights of aviators were certainly dangerous but we are now assured that travel by air is little if at all more dangerous than a railway journey.
"Accordingly, I am unable to accept the proposition in law that the manufacture of high-explosive shells is a dangerous operation which imposes on the manufacturer an absolute liability for any personal injuries which may be sustained in consequence of his operations. Strict liability if you will, is imposed upon him in the sense that he must exercise a high degree of care, but that is all."
It would, therefore, be inappropriate at this stage of the industrial development in this country to import a strict liability rule in case of inherently dangerous machinery. If need be the legislature and not the courts must do this task taking into consideration the circumstances of the time and the other benefits an employee is entitled to in such cases.
In the Doughty case an unforeseeable explosion was caused when a loose cover slid into a cauldron full of molten liquid and caused injuries to the plaintiff. The trial judge held that the defendants were under a duty to see that nothing was immersed which could in fact cause an explosion whether or not they knew or ought to have known it. Diplock L.J. in commenting on the findings stated that this proposition of law meant that the defendants could only use the cauldron at their peril; any explosion would render them liable because the fact of the explosion would show that the substance would cause one. This would impose on them a strict liability analogous to the duty laid down in Rylands v. Fletcher. It was decided in Doughty’s case that the essential factor in determining liability for the consequences of a tortious act of negligence is whether the damage is of such a kind as the reasonable man could have foreseen. It was held that it was not foreseeable that the cover might cause an explosion if it fell into the cauldron.
In our case applicants discharged their duty of care towards respondent by giving him the required instructions, and by warning respondent not to use the high peed particularly when cutting a big plate of metal. Respondent did exactly what he was warned from doing for the sake of the increase of his pay. In a case where the danger is even foreseeable it must be pointed out that reasonable foresight that an accident may happen is not always sufficient by itself to establish liability because it may be reasonable in the particular circumstances of the case to take the risk that such a consequence will follow. This is exactly what happened in this case. Despite the warning respondent deliberately inserted a big plate of metal and operated the machine at high speed and by this suffered the risk of injuring himself.
The application should, therefore, be allowed. Respondent is not entitled to any damages other than his entitlement under the Workmen’s Compensation Ordinance. The judgments of both the learned District Judge and His Honour the Province Judge should be varied to the extent that applicants do pay respondent £S.176.400m/ms with costs.
Salah Eddin Hassan J. May 2, 1970 : —I am faced with two elaborate, well-reasoned and beautifully written judgments but which to my misfortune are radically at variance; each embracing a different theory of liability. The facts of the case have been well put in both judgments and so I need not repeat them again, but it is worth mentioning that respondent was a worker in applicant’s Aluminium Factory. He got four fingers of his right hand chopped by the machine in question whilst he was operating it. The machine has two speeds, a slow and a fast one. It is fitted with brakes which may be applied when operated at high speed. Respondent was warned not to use the high speed on the day of the accident.
The District Court relied on the judgment in Modern Aluminium Works v. Hamad El Nur, AC-REV-i11-1961 (1965) S.L.J.R. 1, in which Mr. Justice Haseeb, says:
"I uphold the finding that the applicants were negligent; whether respondent was also careless it matters not. Dangerous machinery puts the liability on the person who keeps it running when there is imminent danger from operating it, whether the operator was careless or not."
The Province Judge upheld the District Court relying on the same precedent. On application for revision the learned judges of the High Court differed. The difference between their two judgments could well be described by the words of Lord Simonds in Read v. Lyons [1947] A.C. 156 at 180, where he said:
"I turn then to the question which raises the familiar problem of strict liability, a phrase which I use to express liability without proof of negligence. Here is an age-long conflict of theories which is to be found in every system of law ‘A man acts at his peril’ says one theory. ‘A man is not liable unless he is to blame’ answers the other."
The decision of Judge Dafalla proceeded on the basis of “A man acts at his peril” and came to the conclusion that the employer who provides an inherently dangerous machine does so at his peril and must answer if any of his employees gets injured irrespective of whether he was negligent or not. On the other hand Judge Baldo is of opinion that such an employer cannot be made liable without proof of fault, i.e. to put it in the words of Lord Macmillan in Read v. Lyons cited above:
"Accordingly, I am unable to accept the proposition that in law the manufacture of high explosive shells is a dangerous operation which imposes on the manufacturer an absolute liability for any personal injuries which may be sustained in consequence of his operations. Strict liability if you will, is imposed upon him in the sense that he must exercise a high degree of care, but that is all.''
Before I make up my mind which part of the scale to tilt in order to produce the majority judgment, I have to survey both opinions and the principles of liability involved. It sometimes helps to assess the merits of a decision if one starts by noticing its results and only after doing that allots to it the legal principles upon which it is said to depend. Starting in that order the decision of Judge Baldo would mean that in all cases in which an employer provides machinery which is inherently dangerous a higher degree of care is cast upon him and once he conforms to that required standard of conduct he is not responsible for any injury which occurs to the poor workman. The poor workman who lost his hand or leg goes without a remedy. This is so because the employer in law is considered to be utterly without fault. The workman suffers despite the fact that his own responsibility for his injury is non-existent.
A glaring instance of the inadequacy of fault as the criterion of compensability in an area quite outside motor or industrial accident cases is provided by the recent case of Dunne v. N. W. Gas Board [1964] 2 Q.B. 806:
"In 1956 some forty-six separate but almost concurrent explosions of gas took place in a built-up area of Liverpool. The cause of these explosions was found to have been as follows: Water escaping from a water main had eroded the soil surrounding and giving support to a gas main with the result that the gas main had cracked and the gas found its way into a sewer. It there became mixed with air and then somehow became ignited, with the result that several people were injured. A girl of sixteen was thrown off her bicycle by the blast, a man and his wife were injured while respectively on the veranda and in the kitchen of their house, and two children aged seven and three were injured while playing in the street. The Presiding Judge of the Liverpool Court of Passage exonerated the Gas Board and held the Liverpool Corporation liable as the water undertakers, but in the Court of Appeal his decision in favour of the plaintiffs was reversed. The short ground of the Court of Appeal’s decision was that negligence had not been established against either the Board or the Corporation and that no principle of strict liability applied."
Viewed as an application of the Fault Principle this decision was no doubt correct, but it leaves uncompensated a number of people whose responsibility for their own injuries was non-existent. The only reason for refusing them compensation was that the explosions could not be attributed to fault on anybody’s part. So we leave the loss to lie where it falls and unfortunately in industrial accidents it always falls on the poor worker. Many similar illustrations can be given. Consider, for example, the case of A who is accidentally shot by B. Unless B is shown to have been negligent A is without a remedy—and the same is true of C, who enters hospital for a minor operation and as a result of something going wrong with the unaesthetic is rendered permanently paralyzed from the waist down. Without negligence he has no right to compensation. Is it really the case that all these people are less deserving than the innocent victims of faultless motor accidents?
In a world of unlimited finance the ideal solution to the problem might well be a comprehensive insurance scheme under which every victim of accident or disease and, for that matter, every dependant of every man who dies an early death, would be entitled to full compensation. This Utopian scheme is, however, unlikely to be realized for many years to come. It is, and will remain for long essential to restrict the award of compensation to a limited number of cases.
The present criterion of fault as a general principle is quite satisfactory but it must have exceptions apart from statutes which may expand from time to time; otherwise it will work serious injustice as in the examples given above and many others. In the English Common Law many exceptions have been created. We have the rule in Rylands v. Fletcher; we have other instances such as that of damage caused by trespassing cattle or by animals ferae naturee or known to be dangerous; also strict liability for dangerous things.
J. A. Jolowicz, a lawyer of international repute, said in a lecture delivered in New Zealand ill 1965 as follows:
"It is submitted that a suitable criterion is to be found in the concept of risk and that a satisfactory body of legal rules could quite rapidly be developed by the courts if in every case they were to pose the question ‘Whose risk was it that this damage might occur? ‘ in place of the present ‘whose fault was it that this damage did occur?
Then after elaborating this he proceeded to say:
"If the risk principle as I have tried to describe it is to work effectively, it is essential that the initial decisior1 in every case be made in terms of risk and not of fault, but it is not essential and it is perhaps not even desirable for the law to abandon altogether liability for fault—though I would suggest that ‘fault’ ought to be given a rather more realistic sense than it is at present by some courts anxious to give the plaintiff a remedy. What must be got rid of is the false corollary of liability for fault, that there should not be liability without fault. If the initial decision in a given case is that the risk was the defendant’s then subject possibly to the partial defence of contributory negligence that must be the end of the matter. Proof of reasonable care, proof of all possible care, proof even of Act of God must be ruled out as defences."
Carlo Salvador, a member of the New York Bar said in his book Outline of Torts (1949), p. 7 as follows:
"The strict liability of the old Anglo-American law has survived and is still applied to many activities exposing others to a risk which, because of the general social utility of the activity, is not
deemed an unreasonable one. Liability is imposed upon one engaged in such an activity, regardless of his faultless conduct, because the benefits derived by the actor therefrom are great in comparison to the resulting damage, or because the actor is in a position to distribute the loss to others or to the public. By engaging in such activity, defendant acts at his peril and his conduct is regarded as tortious, not because it is unlawful or culpable, but because it is a type of conduct which, as a pure matter of social engineering, may become the basis of liability in the event that harm to another occurs."
The fact is, however, that there are today comparatively few cases in which an individual defendant actually has to find the damages for which he is held liable from his own resources. The proliferation of large enterprises and the prevalence of liability insurance have produced the result that the losses suffered by successful plaintiffs are most frequently placed in the so-called channels of distribution. Where these channels actually lead will depend upon the identity of the defendant who is initially held to be liable, but they inevitably lead to a large number of persons who were not themselves at fault. Damages awarded against a negligent motorist for example, will be paid by his insurer and this means, in effect, by the body of motorists as a whole. Damages awarded against a manufacturer in favour of a consumer, or damages awarded against an employer in favour of an employee will again, probably, be borne by an insurer, but this time the distribution will be wider than the body of manufacturers or employers as a whole. The cost of liability insurance to anyone engaged in the supply of goods or services is as much a part of his normal outgoings as is the cost of wages or raw materials and it will, therefore, be reflected in the pricing of his product. This time therefore the damages will ultimately be borne by all consumers.
If this is appreciated, the relevance of fault as the criterion of the right to compensation disappears. If the compensation is in fact paid in minute proportions by a large number of persons who are not to blame for the injury there is no more reason for calling upon them to compensate the victim of fault than there is for calling upon them to compensate anybody else.
On the other side of the argument an eminent English judge once said:
“If an employer is liable to pay damages to his employee, even though he has failed in no part of his duty and has done all that vigilance can suggest to deter the employee from the action that produces the damage, the law deprives the employer of any reason to be vigilant, since that protects him no better than inertia while on the other hand the employee is released by the law from a useful stimulus to prudence, if he knows that not even imprudence or disobedience is going to disqualify him from looking to his employer for compensation."
I give great respect to this argument if the issue involves the abolition of the general principle of liability based on fault. As I mentioned earlier it is a sound principle which should be maintained as a general rule but no doubt there are situations which need special consideration and treatment and should be made an exception to this rule.
Our present situation is one of them. It embraces the case where an employer provides an inherently dangerous machine. For this purpose, I feel it is my duty to define what is an inherently dangerous machine. I believe it is that sort of machine from which the risk to life or body is really substantial, and no precautions whatsoever would avail against it. A medieval English judge once commented respecting inherently dangerous machinery that: “It may be the duty of the employer to cease to carry on the particular activity in question.” But of course nowadays social utility demands that certain activities despite the hazards attending them must go ahead and the employer will willingly take these risks not forgetting that basketful of money he is going to make at the end.
Moving from this argument, I am inclined to support the point of view of Dafalla J. The finding that the machinery in question is inherently dangerous is quite sound. It is quite clear that when it is operated at high speed the hand of the worker must come beneath where he is putting or removing an aluminium sheet. In such circumstances he is no doubt deterred from conscious negligence by fear of causing injury to himself or to others but it is very doubtful whether his thought processes at the moment of a potential accident go any further than that. The potentiality of an accident in such a situation can never be guarded against and indeed the unexpected always happens. The applicant tried to stress that he instructed the respondent not to operate at high speed and as such the disobedience of the worker was the cause of his injury and as such if not covered by the defence of volenti non fit injuria he is guilty of contributory negligence. Neither contention holds any Water. What is the meaning of a warning to a worker whom you have given special instruction how to operate the machine in high speed? He wants to assert his ability and skill and he is entitled to do so and by increasing his production he gets promotion and at the same time he benefits his employer. As regards his volens I would only say that the defence is vonIenti non fit injuria and not scienti non fit injuria. As I see it our local precedent of Modern Aluminium v. Hamad El Nur should be considered as good law establishing a situation of strict liability under the Common Law apart from statutory provisions.
This application should, therefore, be dismissed with no order as to costs.