QUEENS BENCH DIVISION SMITH v LEECH BRAIN & CO LTD [1962] 2 QB 405 November 17 1961 Full text Editors

comments in red. FACTS Part of the work of a galvaniser employed by the defendants involved lowering articles by means of an overhead crane into a tank containing molten metal. He normally stood with his back to a firebrick wall situated about two feet away from the tank and was provided with a sheet of corrugated iron with which to protect himself from the spattering of molten metal, which occurred as articles were lowered into the tank. On August 15, 1950, whilst lowering an article into the tank, he turned round to see what he was doing, so that his head was outside the shield afforded by the corrugated iron, and a piece of molten metal struck him on the lower lip, causing a burn. The burn was the promoting agent of cancer, which developed at the site of the burn, and from which he died some three years later. The cancer developed in tissues which already had a pre-malignant condition. But for the burn, cancer might never have developed, although there was a strong likelihood that it would have done so at some stage in his life. LORD PARKER CJ: For my part, I am quite satisfied that the Judicial Committee in The Wagon Mound did not have what I may call, loosely, the thin skull cases in mind. It has always been the law of this country that a tortfeasor takes his victim as he finds him. It is unnecessary to do more than refer to the short passage in the decision of Kennedy J in Dulieu v White & Sons where he said: If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferers claim for damages that he would have suffered less injury, or no injury at all, it he had not had an unusually thin skull or

an unusually weak heart. There is not a day that goes by where some trial judge does not adopt that principle, that the tortfeasor takes his victim as he finds him ... The Judicial Committee [in The Wagon Mound] were not, I think, saying that a man is only liable for the extent of damage which he could anticipate, always assuming the type of injury could have been anticipated The test is not whether these defendants could reasonably have foreseen that a burn would cause cancer and that S would die. The question is whether these defendants could reasonably foresee the type of injury which he suffered, namely, the burn. What, in the particular case, is the amount of damage which he suffers as a result of that burn, depends on the characteristics and constitution of the victim. Accordingly, I find that the damages which the plaintiff claims are damages for which these defendants are liable. Full text LORD PARKER CJ: This is a widows claim under the Law Reform Act, 1934, and the Fatal Accidents Acts, 1846-1908, for damages arising out of an accident to her husband in the course of his employment by the first defendants. As a result of that accident he suffered a small burn on the lip, and subsequently died of cancer. The second defendant is formally joined as co-administrator with the widow. This accident occurred as long ago as August 15, 1950, which certainly does not make the case any easier for the widow, for the defendants or for myself. I am satisfied, however, that the plaintiff personally is in no way to blame for the delay. Nevertheless, this is a case where the words I used in Mace v. R. & H. Green & Silley Weir Ltd. are in point. I find it unnecessary to refer to them. I mention that only to show that I have those matters fully in mind. On the issue of liability I am satisfied that there was a clear and known danger of molten metal flying from the tank when articles were being

lowered into it. It was, in my judgment, plainly foreseeable by any reasonable employer that a workman, unless protected, would be liable to get molten metal on him, and any reasonable employer could foresee that even a fleck of molten metal lodging in the eye might well cause not trivial but serious damage. Accordingly, it seems to me that any reasonable employer must have foreseen the risks involved in a man being some three feet away from the tank at the time of lowering, and some six feet from the article being lowered, and that proper protection was necessary for such a man. The protection that was afforded has been somewhat aptly described by Mr, Martin Jukes as Heath Robinson. Without going that far, it clearly was a system which, on the face of it, seems wrong. The dangerous process of lowering was done by remote control, and all that the operator had was the make-shift bit of corrugated iron which was put up and held by the operator himself by leaning against it. Of course, it is only right to say that so long as he stayed behind that shield, it was an adequate protection. But any reasonable employer must reasonably foresee that, men being what they are, the most natural thing in the world is that sooner or later the man will look round. Indeed, the evidence before me is that that is just what was done. Added to that, in 1950 many galvanisers throughout the country had advanced from this system of temporary shelters and were providing what the defendants, when they altered their works in 1955, provided, namely, a proper shelter akin to a signal box with a window in front whereby the operator could watch what he was doing, and where he was really in complete safety and had no reason to put his head out. I have come to the conclusion that this is a case where common law negligence has been made out. I appreciate that this is not a case where the crane and, therefore, the temporary shelter, were in constant use. I am told that the work done by crane formed a comparatively small section of the work done, and that it might be that the overhead crane would not be used more than once on a night shift; and also that the man who operated it was not behind the temporary shelter for more than five minutes. Nevertheless, having regard to the dangers involved, it seems to me that the defendant employers, even in 1950, were guilty of negligence. On the issue of contributory negligence I have had some doubt because,

as I have said, this is not the case of a man who was required to do a job for eight hours of the shift, but by a man who, maybe, was only doing it for five minutes in a night, and who knew full well all the dangers of putting his head outside the shield afforded by the temporary shelter. Nevertheless, it seems to me that this was something which was so foreseeable by the employers, for it is the most natural thing in the world for a man to turn round, as I feel this man did, that it would be wrong in this case for me to hold that he was in any substantial degree to blame for the accident. Accordingly, I find that contributory negligence is not made out. The next question is whether the cancer which the plaintiffs husband had admittedly got, and the death resulting from it, were caused in whole or in part by the burn. The burn was treated at the time with picric acid and probably gauze was put on it. He did not get to hospital for a long time he thought nothing of it. He went home, and no doubt his wife dressed it. But ultimately it did not heal, the place where the burn had been began to ulcerate and get larger, and he went to his general practitioner. The general practitioner without a doubt felt that he had epithelioma, a form of cancer on the lower lip. He was sent at once to hospital. This cancer was at once diagnosed, and thereafter he was in and out of hospital, having, first, treatment with radium needles which enable the lip to heal and destroy the primary growth. But even when he got to hospital it was noticed that his glands were swelling, and while no great significance was attached to that in the first instance, it became perfectly clear later that secondary growths were taking place. Thereafter, he had a series of operations, some six or seven, and finally he died in October, 1953. In considering the medical evidence in regard to causation, I am very conscious of the fact that little is known of the etiology of cancer. At the same time, it is clear that considerable research has taken and is taking place and while, as I have said, the etiology is unknown, certain facts have been ascertained as to the conditions in which cancer can arise and as to the cause of the disease. These as I understand it, vary in different forms of cancer, and in the present case I am considering, and considering only, cancer of the lip, and by that I mean on the vermilion border, as it is called, of the lip.

I have had the benefit of hearing a number of experts in this field, and it seems to me that certain things are clear. Cancer of the vermilion border of the lip itself is comparatively rare; where it does occur it is mainly on the lower lip towards the corner of the mouth rather than in the middle. It may take the form of a lump or an ulcer, but more likely an ulcer, and there are two processes involved. The first is an initiating process, where something causes non-malignant changes to take place in the tissues. As that indicates, malignancy has not occurred and on the evidence may never occur. The second process is the promoting process whereby some agency acting on the pre- malignant condition causes malignancy and, therefore, cancer to develop. Almost anything can be a promoting agent. I am told that sunlight, heat and cold, weather, certainly scratches, certainly trauma. can be the promoting agent, but as a modern and general view indicates, it is highly unusual, and, indeed, cannot be said to be definitely proved, that trauma itself can produce a malignant condition in a completely healthy organ in which no pre-malignant changes have taken place. More often than not, there is nothing to account for the development of the pre-malignant changes though, of course, it is difficult to test the matter scientifically, because so much depends upon the history given by a patient, and nearly all patients try to attribute what develops to some injury. But experience has shown that workers in gasworks who are in contact with tar or tar products are particularly prone to cancer; that they do develop warts or hardening of the skin which is a pre-malignant condition and, having a pre-malignant condition, they are then prone to the action of any promoting agency and may well develop cancer. At the same time, it is said that lip cancer in gasworkers is comparatively rare, although it undoubtedly does occur. The development of cancer in the case of gasworkers is very slow. It can be a matter of 20 to 30 years after the contact with tar or vapour that cancer develops, although almost certainly long before that there will be pre- malignant changes like warts or hardening of the skin. There are really three rival views with which I am confronted. The first one is that this cancer may have been caused by the burn itself without there being any pre-malignant condition; it was admitted that that would be highly unusual, although reasons were given for suggesting that that may have occurred here.

The second, and other extreme view, is that not merely a pre-malignant condition but malignancy itself must have existed long before the accident. The third view is that as a result of working in gasworks, as the plaintiffs husband did for nine years from 1926 to 1935, he was suffering from premalignant changes, and that the burn was the promoting agency which made the cancer develop. I am satisfied that on the balance of probabilities the third view is the correct one. I find that there was no visible sign of anything wrong with his lip before the accident. Accordingly, I find that the burn was the promoting agency of cancer in tissues which already had a pre-malignant condition. In those circumstances, it is clear that the plaintiffs husband, but for the burn, would not necessarily ever have developed cancer. On the other hand, having regard to the number of matters which can be promoting agencies, there was a strong likelihood that at some stage in his life he would develop cancer. But that the burn did contribute to, or cause in part, at any rate, the cancer and the death, I have no doubt. The third question is damages. Here I am confronted with the recent decision of the Privy Council in Overseas Tankship (U.K.) Limited v. Morts Dock and Engineering Co. Ltd. (The Wagon Mound). But for that case, it seems to me perfectly clear that, assuming negligence proved, and assuming that the burn caused in whole or in part the cancer and the death, the plaintiff would be entitled to recover. It is said on the one side by Mr. May that although I am not strictly bound by the Wagon Mound since it is a decision of the Privy Council, I should treat myself as free, using the arguments to be derived from that case, to say that other cases in these courts - other cases in the Court of Appeal - have been wrongly decided, and particularly that In re Polemis and Furness Withy & Co. was wrongly decided, and that a further ground for taking that course is to be found in the various criticisms that have from time to time in the past been made by members of the House of Lords in regard to the Polemis case.

It is said, on the other hand, by Mr. Martin Jukes, that I should hold that the Polemis case was rightly decided and, secondly, that even if that is not so I must treat myself as completely bound by it. Thirdly, he said that in any event, whatever the true view is in regard to the Polemis case, the Wagon Mound has no relevance at all to this case. For my part, I am quite satisfied that the Judicial Committee in the Wagon Mound case did not have what I may call, loosely, the thin skull cases in mind. It has always been the law of this country that a tortfeasor takes his victim as he finds him. It is unnecessary to do more than refer to the short passage in the decision of Kennedy J. in Dulieu v. White & Sons, where he said: If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferers claim for damages that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart. To the same effect is a passage in the judgment of Scrutton L.J. in The Arpad. But quite apart from those two references, as is well known, the work of the courts for years and years has gone on on that basis. There is not a day that goes by where some trial judge does not adopt that principle, that the tortfeasor takes his victim as he finds him. If the Judicial Committee had any intention of making an inroad into that doctrine, I am quite satisfied that they would have said so. It is true that if the wording in the advice given by Lord Simonds in the Wagon Mound case is applied strictly to such a case as this, it could be said that they were dealing with this point. But, as I have said, it is to my mind quite impossible to conceive that they were and, indeed, it has been pointed out that they disclose the distinction between such a case as this and the one they were considering when they comment on Smith v. London & South Western Railway Company. Lord Simonds, in dealing with that case said : Three things may be noted about this case: the first, that for the sweeping proposition laid down no authority was cited; the second, that the point to which the court directed its mind was not unforeseeable damage of a different kind from that which was foreseen,

but more extensive damage of the same kind. In other words, Lord Simonds is clearly there drawing a distinction between the question whether a man could reasonably anticipate a type of injury, and the question whether a man could reasonably anticipate the extent of injury of the type which could be foreseen. The Judicial Committee were, I think, disagreeing with the decision in the Polemis case that a man is no longer liable for the type of damage which he could not reasonably anticipate. The Judicial Committee were not, I think, saying that a man is only liable for the extent of damage which he could anticipate, always assuming the type of injury could have been anticipated. I think that view is really supported by the way in which cases of this sort have been dealt with in Scotland. Scotland has never, so far as I know, adopted the principle laid down in Polemis, and yet I am quite satisfied that they have throughout proceeded on the basis that the tortfeasor takes the victim as he finds him. In those circumstances, it seems to me that this is plainly a case which comes within the old principle. The test is not whether these employers could reasonably have foreseen that a burn would cause cancer and that he would die. The question is whether these employers could reasonably foresee the type of injury he suffered, namely, the burn. What, in the particular case, is the amount of damage which he suffers as a result of that burn, depends upon the characteristics and constitution of the victim. Accordingly, I find that the damages which the widow claims are damages for which the defendants are liable. Before leaving that part of the case, I should say, in case the matter goes further, that I would follow, sitting as a trial judge, the decision in the Wagon Mound case ; or rather, more accurately, I would treat myself, in the light of the arguments in that case, able to follow other decisions of the Court of Appeal prior to the Polemis case, rather than the Polemis case itself. As I have said, that case has been criticised by individual members of the House of Lords, although followed by the Court of Appeal in Thurogood v. Van Den Berghs & Jurgens Ltd. I should treat myself as at liberty to do that, and for my part I would do so the more readily because I think it is important that the common law, and the development of the common law, should be homogeneous in the various sections of the Commonwealth. I think it

would be lamentable if a court sitting here had to say that while the common law in the Commonwealth and Scotland has been developed in a particular way, yet we in this country, and sitting in these courts, are going to proceed in a different way. However, as I have said, that does not strictly arise in this case. [His Lordship considered the question of damages, observed that he must make a substantial reduction from the figure taken for the dependency because of the fact that the plaintiffs husband might have developed cancer even if he had not suffered the burn, and awarded the plaintiff 3,064 17s. 0d.]