Published: Wed, 07 Mar 2018
Nimmo v Alexander Cowan and Sons Ltd.  AC 107
Burden of proof for employer liability arising out of statutory duty of a manager to keep the work place safe.
An employee of a factory was unloading railway wagons filled with bales of pulp for which he was required on some bales. The bales were insecure and when one tipped, the employee fell, hitting his head and fracturing his skill. He claimed that the factory employer was in breach of their statutory duty under Section 29(1) of the Factories Act 1961 to keep the work place safe.
Section 29(1) of the Factories Act 1961 imposes a duty on employers to maintain and keep safe a place of work at any time in “so far as is reasonably practicable.” As the statutory duty is qualified by whether it is “reasonably practicable,” the question arose as to whether the employer or the employee bears the onus of proving that it was not reasonably practicable to make the working place safer.
In the context of the legislature’s intention and policy reasons, the Court held that the construction of Section 29(1) invokes “reasonably practicable” as an exception to the rule, and that it is for the party invoking an exception to a statutory duty, to establish the exception. Accordingly, the Court held that the onus of proving that it was not “reasonably practicable” maintain safety standards fell upon the employer. In this case, it was not for the factory employee to show what reasonably practicable steps ought to have been taken, but for the employer, cognisant of the measures, to show that there were no further reasonably practicable measures to be taken.
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