Cakebread v Hopping Brothers (Whetstone) Ltd
| Jurisdiction | England & Wales |
| Date | 1947 |
| Court | Court of Appeal |
Factories - Woodworking machine - Guard incapable of proper adjustment - Employers' consequent breach of statutory duty - Workman's refusal to have guard safely adjusted - Contributory negligence - Liability - Apportionment of fault -
The defendant employers' woodworking machine was fitted with a guard incapable of being so adjusted as to comply with reg. 10 (c) of the Woodworking Machinery Regulations or “so adjusted as to enable the work to be carried on without unnecessary risk” in compliance with reg. 21. The plaintiff workman, on his side, refused to have the guard lowered even as far as it would go. The defendants' foreman pointed out to the plaintiff the risk which he was running, but agreed to an intermediate position for the guard by way of compromise. While the workman was working at the machine with the guard in that agreed position an accident occurred, injuring his hand, which could not have occurred had the guard been lowered to the fullest extent of which it was capable. The trial judge held the workman guilty of contributory negligence and refused to apportion any part of the blame on the employers under s. 1, sub-s. 1, of the
Held, that the employers were in continuing breach of reg. 21 by having a guard incapable of proper adjustment fitted to the machine, and, further, through their foreman, by permitting the workman to work at the machine when the guard was not in the safest position possible to it, that that breach of statutory duty by the employers was an independent and contributory cause of the accident which the workman could set up against them; that the workman was not in breach of his duty under reg. 23 to maintain the guard in proper adjustment since it was not capable of such adjustment, but was guilty of contributory negligence; that, having regard to s. 1, sub-s. 1, of the Act of 1945, the workman's claim was not defeated by his contributory negligence; and that the fault must accordingly be apportioned between him and the employers, the fair proportion being 50 per cent. against each.
Per Tucker L.J. Different considerations might arise in a case where there was no breach of statutory duty on the part of the employers, the workman having himself failed to adjust properly a properly constructed guard and there being adequate supervision in the factory. Assuming, without deciding, that any question of contribution by the employers could arise under the Act of 1945 in such a case, the blame might be apportionable as to 90 per cent. on the workman.
APPEAL from Hilbery J.
The plaintiff, Sidney William Cakebread, an employee of the defendants, Hopping Brothers (Whetstone), Ld., was engaged in operating a circular saw in their factory. The saw was provided with a guard which, however, did not comply with reg. 10 (c) of the
The workman admitted in evidence that he did not like working with a guard brought down low, and he, in fact, kept it some 3½ inches above the wood at which he was working on the machine, notwithstanding that the employers' foreman had protested at his doing so and had agreed to a compromise position for the guard. While he was at work with the guard in that position, his hand was thrown against the saw and seriously injured. He sued the employers for damages for breach of duty under the
Edgedale for the workman. The trial judge accepted the submissions (1.) that, as this circular saw did not comply with the regulations of 1922, the duty to adjust it, under reg. 21, could not be delegated and therefore that the workman was under no duty under the regulations to adjust it; (2.) that the workman was guilty of negligence in not adjusting it; and (3.) that that negligence was the cause of the accident. On the first point the judge was right, the primary duty to adjust the guard being on the employers under reg. 21, and reg. 23 only imposing a duty on the workman not to interfere with the employers' adjustment: Murray v. Schwachman, Ld.F1; Lay v. D. & L. StudiosF2. Admittedly the duty under reg. 21 can be delegated: Smith v. Baveystock & Co., Ld.F3, but a condition precedent to delegation is that it is at least possible for the workman to carry out the delegated duty and that the employers have not (as here, with the improperly constructed guard) done anything to prevent the workman's carrying out the delegated duty: Vyner v. Waldenberg Bros.F4; Murray v. Schwachman, Ld.F1. The employers' guard here could not be adjusted as low as practicable as required by reg. 10 (c); therefore the delegated duty could not be carried out, and so there could be no delegation.
As for the second point, it is submitted that the judge was wrong in finding the workman guilty of negligence, for there can be no negligence without a duty, and the workman's duty was a statutory one under reg. 23, being merely to maintain the proper adjustment made by the employers. Therefore the workman was under no duty himself to adjust the guard. Alternatively, as for the third point, the judge was wrong in holding the workman's negligence to be the sole cause of the accident. If the employers had carried out their duty to adjust under reg. 21, there would have been no accident. Therefore any negligence on the part of the workman was only contributory, and, as such, under the Law Reform (Contributory Negligence) Act, 1945, merely affects the amount of damages. As to the degree of fault, the employers, by their foreman, acquiesced in the guard's not being kept as low down as it would go. They are therefore at least as much in fault as the workman.
Leon (Beney K.C. with him) for the employers. The evidence was that the accident had nothing to do with the employers' breach of statutory duty in failing to provide the right guard. The only breach of duty by the employers which might be said to have had anything to do with the accident was the permission given to the workman by the foreman to keep the guard in an intermediate position. As to that, (1.) the workman, as the author of his own wrong, cannot complain. He was a highly skilled man, and it was only his persuasion of the foreman that brought about the compromise. He deliberately committed a criminal offence and persuaded his employers, through their foreman, to do so with him. (2.) If he can be heard to complain on this score, he has not proved that the compromise arrived at between himself and the foreman was the cause of the accident. It is true that, if an accident occurs and there has been a particular breach of statutory duty at the time which might have caused it, the onus is on the employers to show that it did not cause it. Here, however, the particular breach of statutory duty was in having the guard 3½ inches above the wood. The employers had forbidden this, and, although they would be liable in a police court, the workman who, contrary to express orders, had done a dangerous thing, cannot be heard to complain of that breach. If the guard had, at the time of the accident, been at the compromise position, undoubtedly the onus would have been upon the employers. If, however, the onus is, in fact, on the workman, he has failed to show that the accident would have happened if the guard had been in the compromise position. As a matter of fact, that is unlikely.
Finally, if both parties are to blame, by far the greater blame is on the workman who caused the accident by over-persuading the foreman in spite of his own great experience.
Edgedale replied.
LORD OAKSEY L.J. By reg. 21 of the Woodworking Machinery Regulations, 1922: “The guards and other appliances required by these regulations shall be maintained in an efficient state and shall be constantly kept in position while the machinery is in motion, except when, owing to the nature of the work being done, the use of the guards or appliances is rendered impracticable. The guards shall be so adjusted as to enable the work to be carried on without unnecessary risk.” The workman's first contention is that that regulation imposes on the employer an absolute duty in addition to that imposed by reg. 10 (c), to keep the guard, which must extend as...
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