Allen v Avon Rubber Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STOCKER,LORD JUSTICE RALPH GIBSON,LORD JUSTICE MAY |
| Judgment Date | 16 May 1986 |
| Judgment citation (vLex) | [1986] EWCA Civ J0516-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 16 May 1986 |
| Docket Number | 86/0449 |
[1986] EWCA Civ J0516-3
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr. Justice Waterhouse)
Royal Courts of Justice
Lord Justice May
Lord Justice Ralph Gibson
and
Lord Justice Stocker
86/0449
MR. NEIL BIDDER (instructed by Messrs Randalls, Bridgend) appeared on behalf of the Appellant/Plaintiff.
MR. MALCOLM T. PILL, QC. and MR. JOHN COOPER (instructed by Messrs Edward Lewis Possart & Co., Cardiff) appeared on behalf of the Respondent/Defendant.
This is an appeal by the appellant (plaintiff) from the judgment of The Hon. Mr. Justice Water-house given on 29th October 1985 at Cardiff, whereby it was adjudged that the plaintiff's claim for damages for personal injuries be dismissed. The plaintiff seeks an order that the judgment be set aside and that judgment be entered for the plaintiff for damages (which have been assessed by the judge on the basis of full liability in the sum of £10,150). There is a respondent's notice to the effect that even if the defendants were in breach of their statutory duty, or were negligent as alleged, that the cause of the accident was solely the fault of the plaintiff, or alternatively, the damages should be reduced by reason of his contributory negligence.
The claim arose out of an accident which occurred on 30th September 1980 whilst the plaintiff was employed by the defendants at their factory premises situated at the Bridgend Industrial Estate, Bridgend. The plaintiff was, on that date, and had been for some three of four months, employed as a forklift truck driver. The accident occurred when the forklift truck driven by the plaintiff fell over the edge of a loading bay and onto the roadway below, a distance of some 3ft. 9ins.
The scene and the loading bay concerned are clearly shown and depicted in the agreed photographs Pl and Dl and on the agreed plan upon which the relevant dimensions are indicated, which appears at page 85 of the bundle. It is sufficient for the purpose of this appeal to describe the loading bay in fairly general terms. The loading bay is situated at one end of a very large building, the other end being used for the manufacturing processes of the factory. At the end of the building at which the loading bay exists the roadway enters through two gaps in the outside wall and continues for a distance of some 48 feet, thus creating two loading bays separated from each other by a central area. Each loading bay has three potential loading positions at factory floor level—viz. its two sides and its end. A lorry backed into either bay can therefore be loaded, if desired, from either side or from its rear. The floor space separating the two bays is 18ft.5ins. wide. By reference to the photographs in Pl the loading bay on the right is No. 1 and that on the left No. 2. Each bay is llft. 5 1/2ins. in width. Loading bay No. 2 is also serviced by an overhead gantry crane for loads weighing more than one ton. There are roller doors covering the gaps in the wall giving access to the loading bays which, when closed, extend upwards from road level to shut off the loading bays from the roadway outside. The general layout of the loading bays is, therefore, similar to those which exist in very many factories.
At this factory not all the edges of the bays were in general use for the purpose of loading. The evidence was that the inside edges of the two bays were not generally so used, the space between the two bays being used for storage of materials not very often moved referred to as "slow moving" materials. The system of storage was that the stores, usually axles, were contained upon stillages stacked four high along the end wall and inner wall of Bay 1 and one high along the inner edge of Bay 2. Sufficient space would be left down the centre of this storage space to permit a forklift truck to travel down the centre of this central area. Stores would also be stacked along so much of the end wall as would permit access to the switches controlling the roller doors. The stores along each edge of this central area would be stacked with their outer edges at about four inches to six inches from the edge. The stacks were about four feet in depth.
It was not disputed but that when the central area was stacked with stores along its edges an effective barrier was created by such stores as would prevent a person or a forklift truck from accidentally falling over the edge.
As the stores were "slow moving" this situation would normally exist. It was unchallenged evidence that the only periods during which the edges of the central area would not be protected by stored material were during the stocktaking when all the stores would be removed for this purpose by forklift truck. After the stocktaking was completed and the stores no longer required for this purpose they would be returned and stacked by forklift truck in the manner already described. Stocktaing occurred twice each year, usually over a weekend. Thus the stores would be removed on a Friday and returned on the following Tuesday. It was during the course of restacking that the plaintiff's accident occurred on Tuesday 30th September 1980.
Before relating the circumstances a short description of the forklift truck must be given. It is clearly shown in photograph 4 of Pl and the following two photographs show the layout of the relevant controls. The length of the forklift truck from the tip of the forks in their normal position is of the order of 7 feet. The forks are capable of being extended a further 30 inches. The driving seat is "side saddle" so that the forward and reverse motions of the forklift truck are left and right to the driver. The forklift truck is moving forwards when the forks are in front and in reverse when they are behind. There is a mechanical brake which is the large pedal on the left of photograph 6 and a further hand operated brake exists. The two pedals to the right of this large pedal are the forward and reverse pedals as indicated by the arrows on their surface. The travelling movements are electrically operated and when the power is switched on and the mechanical brake released pressure of the foot on the appropriate pedal will cause the vehicle to move in that direction. Pressure on the other pedal will cause the vehicle to stop and such pressure if maintained will cause it to move in the opposite direction. The forklift trucks are very manoeuverable and can be turned round in about their own length. The maximum speed is about 5 mph and the speed depends upon how far the relevant pedal is depressed.
The accident occurred on Tuesday 30th September 1980 in these circumstances.
The plaintiff was engaged in re-stacking the central area with pallets of axles after the stocktaking had been completed and had stacked along the end wall, so far as required, and along most of the inner edge of Bay 1. Each stack was four pallets high. They had been stacked in accordance with the usual procedure from the outer wall outwards towards the inner end of the bay. He stacked the penultimate stack some 12 inches from the previous one. He then reversed away from this stack generally in the direction of No. 2 Bay with the intention then of leaving the storage area to collect the next stack. Before he could do so his supervisor stopped him and instructed him to move the stack he had just deposited closer to its immediate neighbour. To do this the plaintiff should have retraced the path along which he had just come—ie. driven towards No. 1 Bay to the position of the last stack by pressure on the right hand pedal. The plaintiff could not say the exact position in which his forklift truck was when this instruction was given, but it is not disputed that he depressed the left pedal so that the forklift truck went backwards over the inner edge of No. 2 Bay and he sustained fairly serious injury.
The plaintiff contends that his accident was caused by breaches of Section 28 (4) and 29 (1) of the Factories Act 1961 and the corresponding duties at common law. It is agreed that the provisions of the Factories Act 1961 applied to these premises.
Section 28 (4) reads "all openings in floors shall be securely fenced except insofar as the nature of the work renders such fencing impracticable". The learned judge found that the loading bay was not "an opening in the floor". Having cited a passage from the judgment of Lord Justice Somervell in Bath and Another v. BTC [1954] 2 AER 542 at page 543, he said:
"….. I will say that in my judgment, the bays through which the lorries have access for loading at this factory are not properly regarded as notional parts of the relevant floor. The floor ends where the loading platforms end and the bays provided access and egress for vehicles at a different level and on a different surface through doorways to the outside which themselves extend to the level of the floors of the bays. It would have been possible, of course, for the defendants to provide loading platforms by breaching the walls of the building at appropriate places and loading direct from the factory floor to a lorry outside. Instead, the edges of the floor were so designed as to permit access and egress as shown in the plan and the photograph. It would be wrong, in my view, to say that, whereas in the case of outside loading the loading was from the edge of the floor, in the case of loading from inner loading platforms openings in the floor had been provided."
And he concluded:
"My finding is that, in this case, loading took place at the edges of the...
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