COURT OF APPEAL WATT v HERTFORDSHIRE COUNTY COUNCIL [1954] 1 WLR 835 7 May 1954 Full text DENNING LJ:

... It is well settled that in measuring due care one must balance the risk against the measures necessary to eliminate the risk. To that proposition there ought to be added this. One must balance the risk against the end to be achieved. If this accident had occurred in a commercial enterprise without any emergency, there could be no doubt that the servant would succeed. But the commercial end to make profit is very different from the human end to save life or limb. The saving of life or limb justifies taking considerable risk, and I am glad to say there have never been wanting in this country men of courage ready to take those risks, notably in the fire service. In this case the risk involved in sending out the lorry was not so great as to prohibit the attempt to save life. I quite agree that fire engines, ambulances and doctors cars should not shoot past the traffic lights when they show a red light. That is because the risk is too great to warrant the incurring of the danger. It is always a question of balancing the risk against the end. Full text SINGLETON LJ: The plaintiff was employed in the fire service under the control of the defendants and he was stationed at Watford. He had a serious accident on 27 July 1951, as a result of which he brought this action, claiming damages for negligence. His case is that the defendants undertook to exercise the care which they owed to him and to other men employed in

the fire service, and he gives particulars of negligence. There are always firemen on duty at the fire station at Watford, and on 27 July 1951, an emergency call was received there to the effect that there had been an accident and that a woman was trapped under a heavy vehicle about two hundred or three hundred yards away. In view of the nature of the emergency the officer in charge, Sub-officer Richards, gave directions that two teams of men should go out, and he himself went with the first team. It was clear that there might be need for lifting apparatus of some kind, and at the fire station there was a jack capable of raising heavy weights. The jack did not belong to the fire service. It was the property of London Transport Executive, whose practice it is to lend out jacks of this kind to various fire stations, and, perhaps, to other bodies, so that they can be on call in case of need. Thus, the jack was on loan to the defendants at this fire station. It is only on rare occasions that there is an emergency call requiring the services of a jack of this kind. The plaintiff had been in the fire service in Hertfordshire since 1939, and he had only known of one emergency call on which a jack was required. The defendants had an Austin vehicle fitted to carry this jack. The fire station at Watford is not a large one, and it had not a great many vehicles. The Austin vehicle was the only one fitted to carry the jack, but it was not kept purely for that purpose. It had other services to perform during part of the week, and on this day it was properly out on other service. The jack stands on four small wheels, two of which are castored, which means that they may turn all the way round the circle. There was at the fire station only one vehicle on which the jack could be carried in the absence of the Austin vehicle, a Fordson lorry, and before leaving with his team Subofficer Richards told the leading fireman in charge of the second team, of which the plaintiff was a member, to take the jack on the lorry. Consequently, the five men in the second team lifted up the jack, which weighed between two and three hundredweight, and put it on to the flat Fordson lorry, which had boards at the sides and a tailboard. They got on the lorry themselves, two in the front seat, and three sitting in the body. The plaintiff was in the forward part of the body on the right-hand side, and the other two men there were, perhaps, a little further back and on the other side, and they held the jack somehow. Obviously there might be movement of the jack in the lorry, for there were no means of securing it, no place on which anything could be tied, and no built-in system which

would prevent movement. There was, therefore, a risk. The men knew what they were doing. They started their journey, which was only two hundred or three hundred yards. But on the way something happened to cause the driver to apply his brakes suddenly, the jack moved inside the lorry, the plaintiffs leg was caught, and he was injured. In these circumstances he claimed that the defendants, his employers, were negligent in that they (a) failed to load or secure the said lifting jack in such a way that it could not become dislodged;(b) loaded the said lifting jack in such a way that they knew or ought to have known it was likely that if the said lorry pulled up suddenly the same would become dislodged and cause injuries to any person riding on the back of the said lorry;(c) permitted and/or caused the plaintiff to ride on the back of the said lorry on to which the said lifting jack had been loaded as aforesaid;(d) caused or permitted the said jack to be transported on the said lorry which as the defendants knew or ought to have known was not provided with clips straps or other suitable means to secure the same;(e) failed to provide any or any adequate supervision of the loading of the said jack on to the said lorry; and it was claimed that the plaintiffs accident was due to negligence, and that he was entitled to recover damages against the defendants. Barry J heard the action, and on 16 December 1953, he gave judgment in favour of the defendants, holding that it was not shown that they had been guilty of any negligence towards the plaintiff or towards their other employees. I am in complete agreement with his judgment. The fire service is a service which must always involve risk for those who are employed in it, and, as counsel for the plaintiff pointed out, they are entitled to expect that their equipment shall be as good as reasonable care can secure. An emergency arose as often happens. Mr Richards, the subofficer who had given the order, was asked in re-examination: From your point of view you thought it was a piece of luck, with this unfortunate woman under the bus, that the Fordson was available and you could use it? A. - Yes. It is recognised in the service that we use our initiative at all times, and in doing so any reasonable step you take is

considered satisfactory if it is a question of saving life. You have to make a sudden decision. It is not alleged that there was negligence on the part of any particular individual, that the driver was negligent in driving too fast, or that Subofficer Richards was negligent in giving the order which he did. The case put forward by counsel for the plaintiff in this court is that, as the defendants had a jack, it was their duty to have a vehicle fitted in all respects to carry that jack, from which it follows, I suppose, that it is said a vehicle must be kept at the fire station at all times, or that, if there is not one, the lifting jack must not be taken out. Indeed, counsel claimed that, in the case of such an occurrence as this, if there was no vehicle fitted to carry the jack, the sub-officer ought to have telephoned to the fire station at St Albans and arranged that they should attend to the emergency. St Albans is some seven miles away, and it was said an extra ten minutes or so would have elapsed if that had been done. I cannot think that is the right way to approach the matter. There was a real emergency. The woman was under a heavy vehicle. These men in the fire service thought they ought to go promptly, and thought they ought to take a lifting jack, and they did so. Most unfortunately this accident to the plaintiff happened. The duty owed by employers has been stated often. Lord Herschell in Smith v Baker & Sons said ([1891] AC 362): It is quite clear that the contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide proper appliances, and to maintain them in a proper condition, and so to carry on his operations as not to subject those employed by him to unnecessary risk. The employee in this case was a member of the fire service, who always undertake some risk, though, according to counsel for the plaintiff, not this risk. Is it to be said that, if an emergency call reaches a fire station, the person in charge has to ponder on the matter in this way: Must I send out my men with the lifting jack in these circumstances, or must I telephone to St Albans, seven miles away, to ask them to undertake the task? I suppose he must think about his duty, but what would a

reasonable man do placed as he was? Would the reasonably careful head of the station have done anything other than that which Sub-officer Richards did? I think not. Can it be said, then, that there is a duty on the employers here, the defendants, to have a vehicle built and fitted to carry this jack at all times, or, if they have not, not to take the jack for a short journey of two or three hundred yards? I do not think that will do. Asquith LJ in Daborn v Bath Tramways Motor Co Ltd & Trevor Smithey said ([4946] 2 All ER 336): In determining whether a party is negligent, the standard of reasonable care is that which is reasonably to be demanded in the circumstances. A relevant circumstance to take into account may be the importance of the end to be served by behaving in this way or in that. As has often been pointed out, if all the trains in this country were restricted to a speed of five miles an hour, there would be fewer accidents, but our national life would be intolerably slowed down. The purpose to be served, if sufficiently important, justifies the assumption of abnormal risk. The purpose to be served in this case was the saving of life. The men were prepared to take that risk. They were not, in my view, called on to take any risk other than that which normally might be encountered in this service. I agree with Barry J that, on the whole of the evidence which was given, it would not be right to find that the defendants as employers were guilty of any failure of the duty which they owed to their workmen. In my opinion, the appeal should be dismissed. DENNING LJ: It is well settled that in measuring due care one must balance the risk against the measures necessary to eliminate the risk. To that proposition there ought to be added this. One must balance the risk against the end to be achieved. If this accident had occurred in a commercial enterprise without any emergency, there could be no doubt that the servant would succeed. But the commercial end to make profit is very different from the human end to save life or limb. The saving of life or limb justifies taking considerable risk, and I am glad to say there have never been wanting in this country men of courage ready to take those risks, notably in the fire

service. In this case the risk involved in sending out the lorry was not so great as to prohibit the attempt to save life. I quite agree that fire engines, ambulances and doctors cars should not shoot past the traffic lights when they show a red light. That is because the risk is too great to warrant the incurring of the danger. It is always a question of balancing the risk against the end. I agree with my Lord that this appeal should be dismissed. MORRIS LJ: I also agree. The accident in this case came about as a result of a somewhat unusual concatenation of circumstances. There had for a long time been no call for the use of the jack. Any such call, according to the evidence, was extremely rare. It so happened that a call came at a time when the Austin vehicle which would normally have carried the jack was otherwise engaged. I do not think it can be said to have been unreasonable to have had the Austin vehicle for use in the way that was arranged. Had the fire station been larger, had there been unlimited resources, unlimited space, and an unlimited number of vehicles, then it may be that another fitted vehicle would have been available. But that was not reasonably practicable or possible. When the call for the jack came, Mr Richards had to decide what to do, and I do not think that it would have been in accordance with the traditions of the fire service if he had said that he could do nothing other than call on St Albans. What he decided to do was in accordance with the practice of the fire service. Mr Bottin, the assistant chief officer in the London Fire Brigade, speaking of the provision of jacks, pointed out that in London there are twenty-nine sets of lifting gear, one being provided for every two stations. He said in evidence: Q. - Can you always undertake that that one vehicle will be available for the transport of a jack? A. - No. Q. - In your view is it reasonably practicable for a fire service to adapt all of its vehicles for the transport of jacks? A. - No. I would not think it was reasonable. Q. - You have been a station officer, have you not? A. - I have. Q. - Supposing you found yourself in charge of a station, and supposing the equipment available

was not that most suitable for the purpose but you found that human life was in danger and you might save it by adopting a method not entirely suitable, what in your view would be your duty as a station officer? A. - I have had that experience, and I did not hesitate to get the equipment there as quickly as possible. As I have said, I think Mr Richards acted in accordance with the traditions of the service, and I cannot for one moment think that the employers could be held responsible as having failed in the performance of their duties. I agree that the appeal fails.