Bailey v Rolls Royce (1971) Ltd

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE STEPHENSON,LORD JUSTICE MAY,LORD JUSTICE SLADE
Judgment Date02 February 1984
Judgment citation (vLex)[1984] EWCA Civ J0202-3
Docket Number84/0033

[1984] EWCA Civ J0202-3

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE BRISTOL COUNTY

COURT

(HIS HONOUR JUDGE

SIR JONATHAN CLARKE)

Royal Courts of Justice

Before:

Lord Justice Stephenson

Lord Justice May

and

Lord Justice Slade

84/0033

Plaint No. 7740944

Between:
Baron Royston Bailey
Plaintiff (Respondent)
and
Rolls Royce (1971) Limited
Defendants (Appellants)

MR. J. LEIGHTON WILLIAMS (instructed by Messrs. Hextall Erskine & Co, Solicitors, London SW1V 1PW, Agents for Messrs. Cartwrights, Solicitors, Bristol BS99 7BB) appeared on behalf of the Defendants (Appellants)

MR. PAUL DARLOW (instructed by Messrs. Stanley Wasbrough & Co, Solicitors, Bristol BS8 1HD) appeared on behalf of the Plaintiff (Respondent)

LORD JUSTICE STEPHENSON
1

I ask Lord Justice May to give the first judgment.

LORD JUSTICE MAY
2

We have before us an appeal and cross-appeal from a judgment of His Honour Judge Sir Jonathan Clarke given in the Bristol County Court on 1st July 1983. The learned judge then had before him a claim by the plaintiff for damages for personal injury and consequential loss allegedly sustained by him as the result of an accident which he suffered on 28th November 1976 in the course of his employment by the defendants. After hearing a substantial amount of evidence, the learned judge held the defendants to be liable to the plaintiff and assessed the total damages at £826. However, he also found the plaintiff guilty of contributory negligence to the extent of one-half. In the result he gave judgment for him for £413, with the appropriate agreed interest.

3

The facts of the case can be briefly stated. The plaintiff has been employed by the defendants since 1971. On Sunday, 28th November 1976 he was employed as a paint sprayer; his work involved placing and positioning metal components on a turntable for spraying. The sizes and weights of these components varied. Some of them were very small indeed, weighing only a few ounces. The plaintiff was, however, working on the heaviest component with which he normally had to deal at the time of his accident; it weighed 192 1/2 lbs. and was a circular casing for some part of an aircraft engine. The turntables upon which the components were placed could be lowered hydraulically to ground leval and there loaded. They were then raised, again hydraulically, to be worked on. This indeed is what happened on the particular occasion with which we are concerned. The circular casing was brought to the turntable by a fork-lift truck; the plaintiff lifted, or slid it on to a metal pallet which was itself resting on a lowered turntable and the latter was then raised with the component upon it. At this stage the plaintiff noticed that it was not sufficiently centred on the turntable; he therefore took hold of it at its circumference and lifted, tilting it so that the opposite end of the component remained resting on the surface of the turntable and pushing it so to get it centrally positioned. On the evidence, in so doing he would have exerted a force of about 100 lbs. As he did so he felt a pain in his back, and it seems clear that he then suffered some injury to a muscle in his back, or possibly to an intervertabral disc short of a prolapse, which caused pain and disability. He came into work the following day, the Monday, but did very little. Ultimately, on the third day, he had to go off work. Thereafter he was off for a period of a month or two, with decreasing pain and disability. It was not suggested that this was a really serious injury, as perhaps can be seen from the fact that the learned judge assessed the general damages at £700, to which he added agreed special damages of £126.

4

The defendant employers now appeal to this court against the learned judge's finding of liability on their part. The plaintiff, by his cross-appeal, contends that the finding of contributory negligence of 50% was excessive; he submits that it should have been substantially less, if not none at all—although it must be said that his counsel did not argue that there was no contributory negligence with any great enthusiasm. More, however, of contributory negligence hereafter.

5

The case was laid by the plaintiff, as I shall continue to refer to him, on the basis both of a breach of the statutory duty imposed by s.72(l) of the Factories Act 1961 and also of negligence at common law. So far as the claim in negligence was concerned, the only relevant allegation now remaining is that contained in paragraph 2(j) of the particulars of negligence in paragraph 3 of the amended particulars of claim. This paragraph was added by way of amendment, and reads as follows:

"The defendants, their servants or agents were negligent in that they:…..

  • (j) failed to heed the fact that from about April 1975 the plaintiff had a weakened back. The defendants by their servant Griffiths (now sadly believed deceased) well knew of such pre-existing condition".

6

The reference there to "their servant Griffiths" was a reference to Dr. Griffiths, who was then the defendants' works medical officer, but who unfortunately died between the date of the accident and the date of trial. It is right to add that that allegation by way of amendment had been foreshadowed by the particulars of claim as originally served on 30th November 1977, because in paragraph 4, which was the paragraph dealing principally with injury and damage, this sentence appeared:

"It is believed that in April 1975 the plaintiff sustained a minor back injury, and if such is the case, the particulars of negligence may be amended to include an allegation that the defendants well knew, or ought to have known, that this plaintiff was prone to back injury, of the type of which complaint is now made".

7

The plaintiff had in fact had previous back trouble, as the evidence at trial demonstrated. It had not been very serious, but as the learned judge found, it was apparent on an examination of the defendants' medical records relating to the plaintiff. In those records there were three relevant entries; between 1st April and 15th April 1975 they showed that the plaintiff was off work with a strained back; on 19th April 1975 it was recorded that he had strained his back when "lifting an awkward job, 20 lbs. approximately, in the paint shop on to a trolley". It may be—I know not—that realistically the incident of 19th April was really part and parcel of the one at the beginning of that month; suffice it to say that those two entries were in the defendants' records.

8

In addition, there was an entry showing that between 24th May and 14th June 1976 the plaintiff had been away from work, again with backache; indeed, the plaintiff's own general practitioner, Dr. Bunting, when he gave evidence at the trial, said that before 1975 he had seen the plaintiff frequently and his main impression was that he was a chronic back sufferer. He said:

"I would have told him to avoid anything which would strain him or revive his back trouble. I wouldn't consider contacting employers unless asked by patient and he didn't do so until after the accident".

9

On this and other material the learned judge found as a fact that at the time of the accident the plaintiff did suffer from a weak back. He found that he was predisposed to strain or injury. He also found that the defendant employers knew, or ought to have known through their medical staff, of the plaintiff's predisposition to back injury. In addition to the entries in the records to which I have referred, I add that there was in force at the defendants' factory a system whereby any employee who was off work due to illness or injury had to report to the works surgery when he returned to work, so that the staff there might check that he was indeed fit to go back to his job.

10

As a result the learned judge then went on to hold that the plaintiff should not have been asked to lift more than about 56 lbs.—half a hundredweight—without risk, and that the defendants "should have taken steps not to require him to do that work in those circumstances". That notwithstanding, he was required to manhandle the engine casing to which I have referred. The judge thus came to the conclusion that the accident was due to negligence as pleaded in the one particular which I have quoted, and that there had also been a breach of the statutory provision contained in s.72. On my reading of the whole of the note of the learned judge's judgment, his finding in favour of the plaintiff was clearly based on both grounds, that of negligence and that of breach of statutory duty.

11

In so far as the appeal against the learned judge's finding of common law negligence was concerned, Mr. Leighton Williams, on behalf of the defendants, has first submitted that there was no adequate material before the learned judge to justify his finding that the plaintiff did in fact suffer from a weak back at the time of the accident, or from any predisposition to back injury. Counsel accepted that he had had the previous incidents of back trouble to which I have referred, but submitted that it is a common occurence with many of us to have some degree of backache, or back trouble, from time to time. There was, Mr. Leighton Williams contended, no adequate evidence that this particular plaintiff was any more predisposed to back injury than the next man. Consequently he submitted that the learned judge erred in concluding that there was any negligence on the part of the employers in failing to do anything about this man's weak back. Mr. Darlow, on behalf of the plaintiff, contended in reply that the learned judge's finding on this point was justified; that there was evidence to support it; and that as...

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9 cases
  • Whitfield v H. & R Johnson Tiles Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 2 March 1990
    ...lift, carry or move any load so heavy as to be likely to cause injury to him". 20 The learned judge was referred to the case of Bailey v. Rolls Royce [1984] I.C.R. 688. He said of that decision: "That Court of Appeal authority lays down a number of propositions. The criterion is n......
  • McFarlane v Wilkinson and Another ; Hegarty v E E Caledonia Ltd
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 5 February 1997
    ...they only qualify for protection if the breach of duty is likely to endanger them (i.e. that it is probable that it will: see Bailey v Rolls Royce (1971) Ltd [1984] ICR 688: Whitfield v H & R Johnson Tiles Ltd [1991] ICR 109). In Cade v British Transport Commission [1959] A.C. 256 Visco......
  • Francois Maartens Heynike (Executor of the Estate of David Hill, Deceased) v (1) 00222648 Ltd (Formerly Birlec Ltd)
    • United Kingdom
    • Queen's Bench Division
    • 22 February 2018
    ...contended for by counsel for the claimant and first defendants, albeit obiter, may perhaps be found in the case of Bailey v Rolls Royce (1971) Ltd. [1984] I.C.R. 688, where the Court of Appeal had to consider the meaning of the word “likely” in Section 72(1) of the Factories Act 1961, “… a ......
  • Cream Holdings Ltd and Others v Banerjee and another
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 13 February 2003
    ...survey of the cases, it is, I think, instructive to consider one or two of them in a little detail. 32 This court in Bailey -v—Rolls-Royce (1971) Limited [1984] ICR 688 had to consider the meaning of the word likely in s72(1) of the Factories Act 1961: "A person shall not be employed ......
  • Request a trial to view additional results
1 books & journal articles
  • Computer Misuse: The Implications of the Police and Justice Act 2006
    • United Kingdom
    • Journal of Criminal Law, The Nbr. 72-1, February 2008
    • 1 February 2008
    ...383 interpreting the Heavy Goods Vehicle (Drivers’ Licences) Regulations 1977 (SI 1977 No. 1309), reg. 4. 62 Bailey v Rolls Royce (1971) [1984] ICR 688 interpreting the Factories Act 1961, s. 72(1) ‘likely to cause injury’. 63 Taplin v Shippam [1978] ICR 1068 interpreting the Employment Pro......

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