ABSTRACT

The evidence given by the expert called for the defence in regard to what was called ‘the set up’, which was not seriously or, perhaps, at all challenged, was of very great weight, but I cannot say that it was so conclusive as to require the learned trial judge to withdraw the case from the jury. There were other matters also which they were entitled to take into consideration, and it was for them to determine whether in all the circumstances the respondents had taken reasonable care. I do not think that the learned judges of the Court of Appeal were justified in concluding that reasonable men might not find the verdict which this jury found. If I may respectfully say so, I think that the error of the majority of the court lay in treating as conclusive evidence which is not conclusive, however great its weight, particularly where it has to be weighed against other evidence. But that does not mean that the familiar words of Lord Dunedin in Morton v Wm Dixon Ltd, which have been so often quoted, both in Scottish and English cases, are not to be regarded as of great authority in determining what is in all the circumstances reasonable care. It would, I think, be unfortunate if an employer who has adopted a practice, system or set up, call it what you will, which has been widely used without complaint, could not rely on it as at least a prima facie defence to an action for negligence, and I would say with the greatest respect to those who think otherwise, that it would put too great a burden on him to require him to prove that the circumstances of his own case were ‘precisely’ similar to those of the general practice that I have assumed. But these are not questions that arise on the present appeal and I am content to move that the appeal be allowed with costs here and below.