Ballard v Ministry of Defence
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE LAWTON,LORD JUSTICE GEOFFREY LANE |
| Judgment Date | 10 February 1977 |
| Judgment citation (vLex) | [1977] EWCA Civ J0210-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 1974 B. No. 7133 |
| Date | 10 February 1977 |
[1977] EWCA Civ J0210-1
In The Court of Appeal
On Appeal from the High Court of Justice
Queen's Bench Division
Lord Justice Megaw
Lord Justice Lawton
and
Lord Justice Geoffrey Lane
MR. R. WATERHOUSE. Q.C. and MR. N. FRICKER (instructed by Messrs. Clifford & Co.) appeared on behalf of the Appellant.
MR. S. BROWN (instructed by the Treasury Solicitor) appeared on behalf of the Respondents.
I will ask Lord Justice Lawton to give the first judgment.
This is an appeal by the plaintiff, Mr. Maurice Ballard against a judgment of Mr. Justice Griffiths delivered on the 1st July, 1975, whereby he adjudged that the defendants, the Ministry of Defence, had not been in breach of either their common law duty of care or their statutory duty under Section 14 of the Factories Act 1961. As a result, the plaintiff received no damages for the personal injuries which he had sustained in the course of his employment.
The accident out of which the claim arose occurred on the 28th November, 1973. At that time the plaintiff was 53 years of age. He was employed by the defendants as a fitter in Command Workshop No. 44, which was under the control of the Corps of Royal Electrical and Mechanical Engineers. The workshop was situated at Ashford in the county of Kent.
It was a large workshop. Amongst other activities it reconditioned and repaired large numbers of military vehicles, in particular their engines. The kind of work which was carried on in that workshop can be described in this way. Vehicles came in; their engines were taken out; they were dismantled; if any parts wanted replacement they were replaced, and in other cases, if repair was not economical, the engines would be rebuilt with new parts. Such work having been done the engines had to be tested. They were tested in the year 1973 is a part of the Command Workshop where the plaintiff worked. She method of testing was as follows. There were five test beds. Each consisted of parallel bearers on which engines under test were put. Engines under test had, of course, to be kept to the requisite running temperature. Each test bed had attached to it a radiator. When the engine was in position on the test bed it was connected to the radiator byby rubber hoses and jubilee clips. Water was put into the radiator; a supply of electricity was connected to the engine; petrol also was supplied. The test would then start.
As a matter of ordinary mechanical practice, each engine would have a fan, the fan being designed to assist in keeping the engine cool whilst under test. Fans can be of two types, those which suck air through the radiator into the area of the engine and those which force air through the radiator. It matters not from the point of view of cooling the engine which type of fan is used because both kinds of fan have the effect of either sucking air through the radiator, or forcing air out. Whatever method is used, the water in the radiator is kept cool. Some motor vehicles have what is known as a reverse thrust fan, that is one which forces air out and is a different type to those which suck air in. The ordinary fan, if I may call it so, appears to be more common than the reverse thrust fan. The evidence established that a number of well known makes of motor cars have reverse thrust fans, particularly if there is a transverse engine. It appeared in the course of cross-examination that the plaintiff himself has a motor car which has a transverse engine, and a reverse thrust fan.
The plaintiff has been employed by the Ministry of Defence for two periods during his working life, which had been spent as a motor engine fitter. He was a very experienced man indeed. In the second period of his employment with the defendants, he had been working for about eight years before the accident happened. It was part of his job to test the engines on the test bench. He knew about reverse thrust fans but he told the court, and there is no reason to think that he was not being accurate in his recollection, that he had himself never tested an engine in that workshop which had a reverse thrust fan.
He worked under the supervision of a chargehand, a Mr. Sinden. Mr. Sinden had been a chargehand in the Command Workshop for about 25 years. For 20 years he had been employed in the part of that workshop where the plaintiff worked. He had high regard for the plaintiff's skill and experience and, as a result, he took the view, and in the opinion of the learned judge rightly took the view, that the plaintiff was not a man who required much close supervision.
On the 28th November, 1973, there was difficulty in the workshop because the public power supply was not working. There had been a strike by those employed in the power industry. It was a cold day and those working in the workshop, unless something was done, would have to work in cold conditions. Mr. Sinden had an idea. The engines on the work bench generated some heat but the amount of heat generated, Mr. Sinden thought, might be increased if one of the engines which had an ordinary fan was fitted with a thrust fan. The engine which Mr. Sinden chose for this purpose was on a test bed which was under the control of the plaintiff. Mr. Sinden went to the stores; he obtained a for suitable for the engine which was about to be tested on that bench. That engine was one from a Bedford truck of 90 brake horse power.
Having obtained a spare fan from the stores, Mr. Sinden took it into the welding shop and asked the chargehand welder if he could reverse the blades so as to change it from an ordinary fan into a reverse thrust fan. The chargehand welder said he could and did. When it had been changed Mr. Sinden took it to the test bench where the plaintiff worked. He and the plaintiff then took off the fan which was on the engine, which was an ordinary fan, and fitted the reverse thrust fan. The ideas of course, was to force air through the radiator which was part of the equipment of the workshop. Both Mr. Sinden and the plaintiff seem to have been satisfied withthe fitting. Mr. Sinden then left the plaintiff to start the test of that engine.
The test which van contemplated was one of about an hour's duration. That was a common length of test; but on occasions in that workshop engines were tested for much longer, seven or eight hours. Mr. Sinden said that if the reverse thrust fan which he had fitted to this engine had circulated warm air through the workshop, it might have been used again on another engine which was on the test bed for testing. In the event it never was used again.
The plaintiff started up the engine under test. He ran it for about five minutes at revolutions which were between 700 and 1,000 per minute. That was ticking over. Experience had taught the plaintiff that engines under test might not be working satisfactorily in their cooling systems. If they were not working satisfactorily there would be overheating, and, possibly, release of steam into the workshop. Overheating was, of course, to be avoided and could be avoided if the tester took some simple precautions. One was, very shortly after the test had started, to feel the engine to see whether it was warming up satisfactorily.
The plaintiff said that he normally started his tests as to the efficiency of the cooling system by touching the back of the engine. On this occasion he did so and found the back was just warm. He then went to the other end and touched the top of the radiator to find whether that was warm. He found it was cold. He then went a little nearer the engine to the elbow joint which was near the top of the radiator. That, too, was cold. That indicated to him that whatever warm water there was in the engine itself was not coming through into the radiator. One explanation for this not coming through into the radiator might have been that the thermostatic valve on the engine near its connection with the hose leading up to theradiator was either broken or stuck, or for some other reason not working properly.
The plaintiff said that finding the elbow joint was cold, he then decided to pat sis hand on to the part of the engine where the thermostatic valve was to be found. He said that he could not remember exactly whether he ever got his sand on to that part of the engine because the next thing he knew was a feeling of air on the sleeve of his overall and his right hand got caught up in the blades of the fan. His hand was badly lacerated; he lost most of his middle finger; his forefinger was damaged in such a way that the top joint was left with what is called a mallet deformity; and his little finger was lacerated. This must have been a most painful injury. It is to the great credit of the plaintiff that despite the severe injuries which he sustained he was back at work, in bandages, within three weeks of his accident and ever since then he has carried on with his job. He has been able to adapt himself despite his disability.
After the plaintiff had been injured in this way the engine was stopped and Mr. Sinden, I presume, removed the reverse thrust fan from the engine and kept it as evidence. As a result, those advising the plaintiff, at a later date were able to examine it and to form as opinion about its efficacy, and whether it was a type of fan which ought to have been fenced.
To complete the story of the accident itself, and the conditions in which it occurred, early in January, 1974, a factory inspector visited the workshop as a result of hearing about this accident. The workshop was, of course, a factory for the purposed of the factories Act, 1961. He was not the same factory inspector who in the past had been to the workshop and had carried out examinations for the purposes of the factories Act. He was a new...
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