Ball v Richard Thomas & Baldwins Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE DAVIES |
| Judgment Date | 28 November 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J1128-2 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 1965. B. No. 3222. |
| Date | 28 November 1967 |
[1967] EWCA Civ J1128-2
In The Supreme Court of Judicature
Court of Appeal
Civil Division
Appeal from Swanwick J. at Newport Assizes 7.3.1967.
Revised
Lord Justice Willmer
Lord Justice Davies and
Lord Justice Edmund Davies
Mr. TASKER WATKINS, Q. C., and Mr. PIERS ASHWORTH (instructed by Messrs Abbott, Baldwin & Co., Agents for Messrs Francis Ryan & Co., Cardiff) appeared on behalf of the Appellants (Defendants).
Mr. JOSEPH M. DAVIES, Q. C, and Mr. ESYR LEWIS (instructed by Messrs Evill & Coleman) appeared on behalf of the Respondent (Plaintiff).
I have asked Lord Justice Davies to deliver the first judgment,
On the 11th June 1963, when the plaintiff was in the employ of the defendants at their steelworks at Ebbw Vale, he sustained a serious accident while at work. The seriousness of the accident may be judged by the fact that the learned judge assessed the damages on the basis of total liability at the figure of £6,475, including an agreed sum of £l,225 for special damage. But the judge held that the plaintiff himself was 25 per cent to blame for his accident, and therefore the sum for which judgment was given was the sum of £4,856.5s.
The learned judge based his finding of liability on a breach of section 26, subsection (1), of the Faotortes Act, 1961, to the provisions of which I shall, of course, have to turn. He found that there was no common law negligence on the part of the defendants; but, as I have said, he found that the plaintiff was 25 per cent to blame.
From that judgment the defendants appeal to this court. They submit that the learned judge was wrong in finding that section 26, subsection (1), applied at all, and they also contend that the judge ought to have found a larger responsibility on the part of the plaintiff than 25 per cent. The plaintiff resists the appeal with regard to the breach of statutory duty, and cross-appeals, submitting, first, that the learned judge ought to have made a finding of common law negligence and, secondly, that he was wrong in attributing any proportion of blame to the plaintiff Those then are the issues before this court.
It is necessary, I fear, that I should explain to some extent, though not; I hope, at toe great length, the circumstances of the accident. The plaintiff, Mr. Ball, had been in the employment of the defendants for some fifteen years or so, and for a great deal of that time he had been engaged solely on the task on which he was engaged on the day of his accident. The technical description of his occupation was that of oxyacetylene burner. The locus in quo can be seen from a series of photographs which were put in evidence. On the left of photographs 1 and 2 there is a series of furnaces. In the foreground there is in particular to be seen a trough, known as a launder, leading from one of the furnaces. This launder, when the furnace is tapped, conducts the hot molten metal from the furnace down the incline into a ladle, which is out of sight on the right of the photograph. It is apparently inevitable that in the course of that process there is some degree of overspill from the launder of the hot molten metal as it flows down. The floor of the landing across which the launder runs, and on which the plaintiff was working, some 20 foot above the floor of the works, is constructed of bricks in a steel framework. The overspill, when itcools and hardens, is appropriately enough known as "scab". For it attaches itself, in the kind of form to be seen in the photographs, to the brick floor and in the interstices between the bricks and also to the steel framework, and actually words itself to the launder and other metal work.
Before the furnace can be used again it la necessary for all this scab to be cleared away. It is essential that the launder should be broken open on its pivot, as shown in photograph 2, so that the slag may be cleared out of the furnace; and this, of course, cannot be done if the scab is holding the launder in the closed position.
According to the plaintiff, there are two methods of removing the scab. The first is by cutting up the scab into pieces by means of the oxyacetylene cutter, and then having those pieces carried away by the crane. This is a somewhat lenghthy process and may take upwards of three hours. The second, and more rapid, method is to use the overhead crane, to which I shall refer in a moment, to lift slightly the edge of the scab in order that the operator may place a brick under the edge and so enable him with his burner sufficiently to loosen the scab as to enable the crane to lift it away when chains are placed underneath and around it
The crane in question was on rails soma 20 feet above the landing on which the plaintiff was working. The driver's cab was about 60 feet away. It was an auxilary hoist of 25 tons lifting capacity. The main crane, of 160 tons capacity, does not come into this story. The auxilary hoist was, according to the evidence, regularly used for three purposes: (a) for tipping the contents of the ladles, which are supported by the main crane, into the moulds; (b) for holding the scrap boxes when the furnaces are being charged; and (c) for the purpose of dealing with the scab, as in the present case. Beneath the block of the auxilhry chain there is suspended a heavy chain, as shown in the drawing that was put in during the hearing of the appeal, weighing some 2 tons, and variously called the tipping chain or jib chain. At the foot of the chain there were rings from which were suspended lighter chalns, eachterminating in a hook On the drawing to which I have just referred four such chains are to be seen, but on the day of the plaintiff's accident there were only three.
On that day the plaintiff was instructed by the second furnaceman to clear away the scab as quickly as possible. He therefore decided not to use the slow burning process, to which I have referred, but instead to use the more speedy process of using the crane to enable him to insert something under the scab in order to facilitate its removal He therefore removed a brick from under the edge of the scab, hammered in with a sledge hammer a hook under the edge of the scab, and signalled to the crane driver to take the strain. Quite obviously it was necessary at this stage for the plaintiff to have put himself in a place of safety and security, since it is clear that in such an operation the hook is likely, as it is said, to "fly". But what happened on this occasion was that, when the crane started to lift the scab, the hook straightened or opened, lost all purchase on the scab, flew out and hit the plaintiff in the face. Hence the injuries.
There are apparently three ways in which the hook can be caused to fly in the course of this operation. First, the edge of the scab under which the hook is placed can break, and then, of course, the hook would fly. Secondly, as the hook has a small plain level face as. its tip, it cannot penetrate the scab at all. and so may lose its purchase, and again will fly. Thirdly, as on this occasion, if the hook is not strong enough to raise the scab, it will straighten and come out in that way. From the evidence of Mr. Hewitt, the defendants' expert, it is plain that in the sort of circumstances that I have described, this particular sort of incident is something that does happen from time to. time.
That, I think, is all I need say about the accident, save to add this, that the learned judge found as a fact that when the accident happened the plaintiff was standing within 9 feet of the place where the hook had been inserted.
Section 26, subsection (1), of the 1961 Factories Act provides as follows: "Chains, ropes and lifting tackle. (1) Thefollowing provisions shall be complied with as respects every chain, rope or lifting tackle used for the purpose of raising or lowering persons, goods or materials". Sub-paragraph (a) says; "No chain, rope or lifting tackle shall be used unless it is of good construction, sound material, adequate strength and free from patent defect". For the present purpose the only other provision to which I need refer is the definition contained in subsection (3), which states: "In this section 'lifting tackle' means chain slings, rope slings, rings, hooks, shackles and swivels'. 3o we see that a hook comes within the expression "lifting tackle". What is said on behalf of the plaintiff in this case is that this operation was an operation for the purpose of raising materials, to wit, the scab, and that the facts demonstrate that the hook was not, and could not have been, in the circumstances, of "adequate strength". It is an interesting point, and there is really no authority on it at all. The submission made by Mr. Tasker Watkins and Mr. Ashworth on behalf of the defendants in this court (not perhaps entirely the same submission as was made to the learned judge in the court below) is that this is not an operation of raising. "Raising", it is said, connotes the lifting from the ground of a free unattached article or goods; and it is submitted that this operation was not an operation of raising, albeit it is conceded that the lift which was being used was a directly vertical lift. It is said that this was ripping fixed material, and that therefore the section has no application whatsoever, since ripping is not raising.
I think it is right that in this connection I should refer to the passage in the learned judge's judgment where he deals with the contention made before him. The relevant passage is at page 59. Having referred to a Scottish authority, Milne v. C. F. Wilson & Co. (1932) Limited, (1960) Scots Law Times 160, the judge says this; "I would take the view that that section means that no lifting tackle shall be used unless it is of...
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