environment, but the claimant might have been largely protected from it by using the protective equipment provided. In some situations, it may be difficult to determine whether there is any fault in the defendant: there may not be if the claimant is properly informed of the risk and free to protect himself from injury. This was the situation in Qualcast v Haynes (1959). In that case the claimant argued that there was some fault in the employer for failing to instruct him to use the protective equipment which was available for his use. The implication of the House of Lords’ decision that the employer owed no duty to instruct him, an experienced worker, to use the equipment meant that he was deemed to be the sole cause of his own injury: had the employer been under a duty to instruct him, and therefore negligent in failing to do so, the claimant’s damages might nevertheless have been substantially reduced to take account of his contributory negligence. A similar question as to whether the employee was the sole cause of his own fatal injury had to be considered by the House of Lords in Stapley v Gypsum Mines Ltd, cited below, p 194. In this latter case it will be seen that the employer was found to be in some degree responsible, possibly because of the relatively junior status of the accident victim and his fellow worker. In former times, when contributory negligence was a complete bar to recovery of any damages, the courts were often loath to find that the victim had been contributorily negligent. Thus, it was said:

doi:10.4324/9781843140504-120

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environment, but the claimant might have been largely protected from it by using the protective equipment provided. In some situations, it may be difficult to determine whether there is any fault in the defendant: there may not be if the claimant is properly informed of the risk and free to protect himself from injury. This was the situation in Qualcast v Haynes (1959). In that case the claimant argued that there was some fault in the employer for failing to instruct him to use the protective equipment which was available for his use. The implication of the House of Lords’ decision that the employer owed no duty to instruct him, an experienced worker, to use the equipment meant that he was deemed to be the sole cause of his own injury: had the employer been under a duty to instruct him, and therefore negligent in failing to do so, the claimant’s damages might nevertheless have been substantially reduced to take account of his contributory negligence. A similar question as to whether the employee was the sole cause of his own fatal injury had to be considered by the House of Lords in Stapley v Gypsum Mines Ltd, cited below, p 194. In this latter case it will be seen that the employer was found to be in some degree responsible, possibly because of the relatively junior status of the accident victim and his fellow worker. In former times, when contributory negligence was a complete bar to recovery of any damages, the courts were often loath to find that the victim had been contributorily negligent. Thus, it was said:

Chapter

environment, but the claimant might have been largely protected from it by using the protective equipment provided. In some situations, it may be difficult to determine whether there is any fault in the defendant: there may not be if the claimant is properly informed of the risk and free to protect himself from injury. This was the situation in Qualcast v Haynes (1959). In that case the claimant argued that there was some fault in the employer for failing to instruct him to use the protective equipment which was available for his use. The implication of the House of Lords’ decision that the employer owed no duty to instruct him, an experienced worker, to use the equipment meant that he was deemed to be the sole cause of his own injury: had the employer been under a duty to instruct him, and therefore negligent in failing to do so, the claimant’s damages might nevertheless have been substantially reduced to take account of his contributory negligence. A similar question as to whether the employee was the sole cause of his own fatal injury had to be considered by the House of Lords in Stapley v Gypsum Mines Ltd, cited below, p 194. In this latter case it will be seen that the employer was found to be in some degree responsible, possibly because of the relatively junior status of the accident victim and his fellow worker. In former times, when contributory negligence was a complete bar to recovery of any damages, the courts were often loath to find that the victim had been contributorily negligent. Thus, it was said:

ABSTRACT

The plaintiff, Mr Herbert Laszczyk, claims against the defendants, the National Coal Board, for damages for negligence and breach of statutory duty in respect of a shot-firing accident which occurred on March 11, 1953, at the defendant’s Bickershaw colliery. The plaintiff, who is of Polish origin, came to England in 1947, having previously had some one and a half year’s experience as a coal miner. He was then trained in Wales as a haulage worker, but was not trained as a coal face worker. After some work at other mines he came to Bickershaw Colliery about three years prior to the accident, which would be early in 1950, and he worked there as a haulage worker. The combined team of haulage workers would, no doubt, on some occasions be bringing the extracted coal back from the coal face along the main roads but, at other times, they would be bringing the materials required – timber and iron bars – from what may be called the underground ‘tramway terminus’, along the main roads to a place near the coal face, and then one or more would have to bring the materials along to the coal face to give them to the working colliers who needed such materials. The plaintiff, throughout the three years’ period up to and including March 11, 1953, when the accident occurred, did in fact from time to time, execute some of this work of bringing materials along the coal face and distributing them to the persons working there. On February 11, 1953, one Hindley, who was the Bickershaw Colliery training officer, found the plaintiff at the coal face and he told him he had no right to be there, explaining, in effect, the safety requirements under the appropriate training regulations. He then took the plaintiff to some place on the main haulage road and pointed out a particular mark or position beyond which he told the plaintiff he must not go. The plaintiff worked on certain parts of two different shifts. On part of the afternoon shift he was under a deputy or fireman whose name was Sinclair and on part of the day or morning shift he worked under another officer of the same rank, Thompson. On that same day,

in any respect; please avoid using him on the face.’ Sinclair received this message and I think that he probably did pass it on to the plaintiff. The attitude of the other deputy, Thompson, was quite different. He instructed the plaintiff to continue doing the same work of distributing the required materials at the coal face, but to keep out of the way of the colliery training officer if he should happen to be there. The plaintiff carried out these instructions, although he and Thompson knew that this was in breach of the mines safety requirements. Preferring the evidence of the plaintiff to that of Thompson I find that these instructions were given after the colliery training officer’s conversation with the plaintiff .