Bux v Slough Metals Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EDMUND DAVIES,LORD JUSTICE STAMP,LORD JUSTICE STEPHENSON |
| Judgment Date | 06 July 1973 |
| Judgment citation (vLex) | [1973] EWCA Civ J0706-5 |
| Date | 06 July 1973 |
| Court | Court of Appeal (Civil Division) |
[1973] EWCA Civ J0706-5
In The Supreme Court of Judicature
Court of Appeal
On appeal from Judgment of Mr. Justice Kerr.
Lord Justice Edmund Davies,
Lord Justice Stamp and
Lord Justice Stephenson
Mr. M. STUART-SMITH, Q. C. and Mr. PERIOD O'BRIEN (instructed by Messrs L. Bingham & Co.) appeared on behalf of the Appellants (Defendants).
Mr. ANTHONY McCOWAN. Q. C. and Mr. HARRY WOLF (instructed by
Messrs Bower, Cotton & Bower, Agents for Messrs Roderic Miles & Co., Slough, Bucks) appeared on behalf of the Respondent (Plaintiff).
On February 7th, 1973, Mr. Justice Kerr awarded the plaintiff Mr. Razul Bux £25,883 against his employers in respect of the grievous eye injuries he sustained in an accident on February 2nd, 1970. His claim was based on allegations of the employers' breaches of Regulation 13(1)(c) of the Non-Ferrous Metals (Melting and Founding) Regulations, 1962, and of their common law duty of reasonable care. The learned Judge held that no breach of statutory duty had been established but that negligence had been made out. He also found the plaintiff guilty of contributory negligence by reason of his breach of Regulation 13(4) of the same Regulations and, as a result, reduced the damages by 20 per cent in arriving at the aforementioned sum. The relevant portions of Regulation 13 provide as follows, in sub-paragraph (1), in so far as the wording is relevant: "(1) There shall be provided and maintained suitable protective equipment of the types and for the operations or work respectively hereafter in this Regulation specified for the protection of persons employed in any such operations or work, that is to say … (c) suitable goggles or other suitable eye protection for persons employed in — (i) work at a furnace where there is risk to the eyes from molten metal; or (ii) pouring or skimming; or (iii) work involving risk to the eyes from hot sand being thrown off".
The employers appeal on the grounds (1) that the finding of liability based on negligence was wrong, and (2) that, in any event, the plaintiff had so conducted himself that the finding of contributory negligence should have resulted in a substantially greater reduction than 20 per cent in his damages. By his cross-notice the plaintiff claims (1)that the defendants should have been held in breach of Regulation 13(1) as well as of negligence, and (2) that he was either guilty of no contributory negligence or, alternatively, of such as to justify only a lesser reduction than 20 per cent of the damages.
The plaintiff is a Pakistani and was 39 at the time of his accident. His command of English was very limited but he was able to follow simple and slow conversations, though his evidence was given through an interpreter. The defendants' factory at Slough contains an iron foundry and a die-casting foundry. The absence of records made it impossible to establish with precision when the plaintiff's employment began, but the proper conclusion seems to be that it was about mid-1968 and that about February, 1969, he started in the die-casting foundry. It was during his employment as a die-caster that nearly a year later he sustained injuries which destroyed the sight of one eye completely and very largely the sight in the other. His work involved the placing of ingots of aluminium alloy in a furnace, in due time to remove by means of a ladle some of the molten metal thus produced, and then to pour it from the ladle into a die. While the operation appears at first sight to be a straightforward one, it was not without its complications, for, on removing molten metal from the furnace, the plaintiff had to bring his ladle around by making a left turn and, lowering the ladle to the level of the die, stretch out in what the Judge described as "the fairly narrow space" between four projecting pinion handles used to open and close the dies, and by that means be in a position to pour out the metal into a die. He was paid on a piece-work basis and was known tobe a remarkably fast worker.
The plaintiff was trained for this work for some weeks by Mr. Mantle, the superintendent of the die-casting foundry, and it is noteworthy that throughout that period no goggles were provided or worn or instructed to be worn. Furthermore, as the plaintiff could see, none of the other 14 or 15 die- casters, mostly Pakistanis, wore goggles, save that one man wore them over his glasses. It is common ground that, had the plaintiff been wearing suitable goggles, he could not have sustained his eye injuries. What happened on February 2nd, 1970, as the Judge found, was that, in the act of turning left from furnace to die with his ladle of molten metal, the ladle struck against one of the projecting pinion handles with such force that some of the metal was thrown up and into his eyes.
It is important to have regard to what had happened in relation to the wearing of goggles in the die-casting foundry during the preceding twelvemonth. Having heard nothing about goggles during his training period, the Judge said that, "He accordingly got used to working without goggles". But in March, 1969, Mr. Evans, a new works director, decided that goggles should be purchased and supplied go employees. Either he or Mr. White (who was the superintendent in the iron foundry) made enquiries of the British Safety Council and concluded that goggles known as "Toughspec" should be suitable, and samples of these and other types were obtained. Mr. Mantle experimented and concluded that the "Toughspecs" (or Type 1 as they were called in the lower Court) were suitable; on March 31st, 1969, 80 pairs were ordered; early in April they were delivered; and shortly thereafter a pair was handed to each of the 15 diecastersand, indeed, to the men working in the iron foundry also. Another Pakistani die-caster, Tajar Singh, handed a pair to the plaintiff, who agreed that he was then told, "You must wear these when you work", and that he realised they were being supplied to protect die-casters against the risk of hot metal splashing into their eyes. He said that he tried them for a few days, but then told Tajar Singh that they were no good, as they became misted up "after a minute or so" or "every three or four minutes". He also said, "Of course we would have used them if they were any good", and that, "It was the nuisance of having to constantly keep wiping them, that I did not wear them". He therefore put them away in his tool box. Before doing that, he told Mr. Mantle that the Type 1 goggles were useless as the "steam" hampered the die-caster's work and said "If you've got any better ones, let us have them", to which Mantle made no reply. After that, he and all the other die-casters stopped wearing the goggles, and no member of the management took steps to persuade them to wear them or to supply another type, although Mr. Hantle undoubtedly reported their attitude to Mr. Evans.
On being asked, "If the goggles you were given misted up, you had no intention of wearing them?", the plaintiff replied "No, sir, I would not wear them". He maintained that attitude even after he learned that another die-caster, Nirmal Singh, sustained an eye injury in August, 1969, while not wearing goggles. Both men denied seeing the posters illustrating the risk to eyes from molten metal which the Judge found were exhibited in their foundry.
The first question arising for consideration is whether the Judge rightly absolved the employers of a breach of Regulation 13(1). Mr. McCowan submits that he was not, since the Type 1 goggles were not "suitable" and, furthermore, in all the circumstances, they were at the material time not "provided" On the question of suitability, the plaintiff's expert, Mr. Earnshaw-Brown, thought that Type 1 would "be fairly readily misted up in foundry work", but that "it is very difficult to find a set of goggles that does not mist up at times — some are a lot better than others". He also said that, "There is, quite obviously, a serious difficulty in getting men to wear glasses that mist up", and that "for anything under half-an-hour they were unlikely to wear them … unless a great deal of pressure was put on them". Mr. Bevan, for the defence, considered. Type "very good" and that with them "the misting up is not a problem", but that "no goggles are proof against misting" The learned Judge adverted to Daniels v. Ford Motor Company (1955 1 W. L. R., 76), where Lord Justice barker said at page 79 that "'suitable' cannot mean 'perfect'" (but added that "something may be more suitable than something else"), and to Marshall v. Babcock & Wilson (1961 Scots Law Times, 259), where the Lord President said: "If 'suitability' means something which has no inconveniences or drawbacks of any kind, as the pursuer's argument involves, then his construction of the Regulation would mean that the defenders had a duty imposed upon them to do the impossible and were guilty of an offence if they did not do so".
Mr. Justice Kerr accepted the evidence of Mr. Bevan that Type 1 goggles were no more liable to mist up than anyothers, that they were not liable to cut into the wearer's face, and that he doubted that it would be possible to find a better type. But it is on another piece of Mr. Bevan's evidence that Mr. McCowan bases his submission of unsuitability, for at one stage, in rejecting the plaintiff's assertion that misting up occurred every 3-4 minutes, he added, "I would be very surprised if somebody said twenty minutes. If they said that after two hours of working they required to take them off and clean them, I would accept that". The learned Judge (apparently accepting Nirmal Singh's evidence on this point) said, "I think that they misted up something of the order of every twenty minutes or so — it is difficult to form any judgment on this …", and it is...
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