Comparison of ‘practicable’ and ‘reasonably practicable’ precautions.
Metalliferous Mines General Regulations 1938
Marshall, a gypsum miner was killed when a large piece of the
mine’s marl roof fell on him. The normal—and ordinarily very
effective—method of guarding against falling roof was to inspect
each area for visible faults, and then to tap the roof with a
long-handled hammer; if the noise indicated that the roof was
unsound, the unsound portion was brought down before the
mining proceeded. But the fall that killed the plaintiff was not detectable by this or any other means. As Lord Reid explained, in these “very rare” cases of “slickenside,” (unusual geological condition).
M’s wife alleged a breach of statutory duty (under the Metalliferous Mines General Regulations 1938) and claimed compensation from the employer.
The employer was not liable for a breach of statutory duty because M’s death had not been caused by any failure by them to take reasonable steps to secure the roof.
The only way to make a roof safe from slickenside
was to shore it up, and since the condition was undetectable, every
roof in the mine would have to be shored up. “There was evidence
that that was never done in gypsum mines, and that in this mine the
cost of doing so would have been so great as to make the carrying on
of the mine impossible.” However, the evidence also showed that
after the accident, additional precautions were taken in the area
near the accident: a hydraulic prop was used unless the roof was
thought to be thin, in which event that area was bypassed. The
plaintiff argued that it would have been reasonably practicable for
the defendants to use props (as they did after the accident). The
trial judge found no negligence at common law, but ruled in the
plaintiff’s favour on the statutory claim, reasoning that hydraulic
props should have been used before as well as after the accident.
The Court of Appeal unanimously reversed, on the ground that because
the risk was not reasonably foreseeable it was not reasonably
practicable to guard against it. As Jenkins, L.J., explained, “it
cannot fairly be said to be ‘reasonably practicable’ to guard
against a contingency that could not reasonably have been foreseen,
inasmuch as its occurrence would be contrary to all previous
experience.” Thus, although Jenkins mentioned Asquith’s
disproportionate-cost test, he and the other judges in the Court of
Appeal had no occasion to apply it. In the House of Lords, by
contrast, it was the issue of precaution costs on which the case
turned. Rather than focusing on reasonable foreseeability, Lord
Oaksey invoked Lord Atkin’s disproportionate - cost test:
What is “reasonably practicable” depends upon a consideration whether the time, trouble and expense of the precautions suggested are disproportionate to the risk involved. It is conceded in the pre-sent case that it was not reasonably practicable to make the roof secure by timbering, and to have attempted to make it secure by pneumatic props in some places and by leaving it un-mined in others when no slickenside had ever occurred for a period of 20 years was not, in my judgment, reasonably practicable.
“If a precaution is practicable it must be taken unless in the whole circumstances that would be unreasonable. And as men’s lives may be at stake it should not lightly be held that to take a practicable precaution is unreasonable.”
Measures may be ‘practicable’ which are not ‘Reasonably practicable.’
Halsbury’s Laws of England, Vol. 20 para 553
The employer was not liable for a breach of
statutory duty because M’s death had not been caused by any failure
by them to take reasonable steps to secure the roof.