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McWilliams v Sir Arrol & Co Ltd [1962] 1 WLR 295

Failure to provide safety equipment under s26(2) Factories Act 1937; causation; claimant would not have worn it.

Facts

The claimant was an experienced steel erecter who fell 70 feet to his death from a steel tower he was working on. His employer had failed to provide him with a safety harness and his widow sought damages at common law and for breach of statutory duty for failing to provide appropriate safety equipment, given the height at which her husband was working. The trial judge held breach of duty was established but the claimant would not have worn a belt even if one had been provided, her claim, therefore, failed on causation. The widow appealed.

Issues

The employer is under a statutory duty under s26(2) Factories Act 1937 where an employee is working at a height where he may fall a distance of more than 10 feet, to provide reasonable means to ensure his safety. The employer is also under a common law duty to take reasonable care for their employee’s safety by virtue of Wilsons & Clyde Coal Co Ltd v English [1938]AC 57. The employers were able to submit persuasive evidence that the deceased rarely if ever used a safety harness even if one was provided in the workplace. The wording of the Buildings (Safety, Health and Welfare) Regulations (1948) Reg.97 provides that the duty to provide safety harnesses applies to persons who ‘elect to use them’.

Held

The widow’s appeal was dismissed by the House of Lords. Although she had successfully established breach of duty, it was reasonable to infer the deceased would not have worn the harness had one been provided and he would, therefore, have suffered the same injury in any event.


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