Cherry v International Alloys Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PEARCE,LORD JUSTICE DEVLIN,LORD JUSTICE SELLERS |
| Judgment Date | 25 July 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0725-2 |
| Date | 25 July 1960 |
| Court | Court of Appeal |
[1960] EWCA Civ J0725-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Sellers.
Lord Justice Pearce and
Lord Justice Devlin.
MR. JOHN THOMPSON, Q. C., and MR. B. CHEDLOW appeared on behalf of the Appellant (Plaintiff), instructed by Mr. W. H. Thompson.
MR. PATRICK O'CONNOR, Q.C., and MR. B. CAULFIELD appeared on behalf of the Respondents (Defendants), instructed by Messrs. Hair & Co.
MR.JUSTICE SELLERS: On the 10th November, 1956, the Plaintiff was employed by the Defendants as a motor mechanic in their factory at Aylesbury where they produce various kinds of alloy materials. In the factory a number of trucks were used for carrying and removing the materials produced there. Some were electrically driven, and there were nine Lister trucks which were petrol driven with an engine somewhat similar to that of a motor car. The Plaintiff was an experienced mechanic and his duties included the running maintenance of these various trucks and also major and minor repairs.
On the day in question the Plaintiff was attending to one of the Lister trucks in part of the electricians' shop, and after replacing a broken fan belt he took the opportunity of adjusting the oil feed. This adjustment had to take place with the engine running, and the adjustment was made by turning a small wheel with his fingers and then tightening a nut with a spanner. As the Plaintiff was tightening the nut by lifting the spanner upwards, the spanner slipped and his right hand was caught by the revolving fan and seriously damaged.
As with the ordinary motor car, the fan serves to cool the engine and is normally enclosed, in this case by a louvred plate or guard, but this had to be opened downwards to give access to the oil feed for adjustment and so left the fan, during that operation, unguarded. The adjustment had to be done with care but it was a simple operation and one frequently carried out.
The Lister trucks had been in general and regular use in this factory for many years and there never had been any further or other guard or protection to the fan than the outside louvred plate. The truck was a three-wheeled vehicle of a standard type in common use throughout the country in the larger factories.
In this action, brought by the Plaintiff to recover damages from his employers, it was alleged amongst other grounds that the accident was caused by the Defendants' breach of the Statutory duty to fence under Section 14 of the Factories Act as the fan was a dangerous part of machinery and that it was unfenced and was not in such a position or of such construction as to be safe to every person employed or working on the premises as it would be if securely fenced. That is the only breach of duty relied on in this Appeal, the Appellant not challenging in this Court the other findings of the learned Judge in favour of the Defendants.
The Defendants contended that the Lister truck was not machinery to which the Factories Act, and in particular Section 14, applied and therefore there was no duty to fence the fan in question. The learned Judge upheld this submission and found that the truck as used for transport in these premises was not "machinery" within Section 14.
The sole question is whether this Lister truck, which would normally be described as a vehicle, is machinery to which the Factories Act applies. If it is such machinery, then it is conceded by the Defendants that there was a breach of Section 14 and the Plaintiff is entitled to recover.
The only definition of machinery in the Act is that machinery includes a driving belt. Otherwise it is left to the Court to decide in any given case whether the article or plant complained of is machinery as contemplated and intended by the legislature. The learned Judge, who has had long and very active experience of litigation under this much invoked Statute, has found confidently that the Act does not apply. It is an opinion I would be reluctant to disturb.
The difficulty in the case is to find the right approach to the problem. Where there is no definition, what are to be the guides? It is conceded in the arguments on t side that little, if any, guidance is available from other Sections of the Statute, except perhaps to reveal absurdities if the Appellant's contention is correct.
The safety provision of Part II of the Act, and in particular Sections 12, 13 and 14. are appropriate to what might be called production machinery but give no indication of their applicability to a motor car, truck or other vehicle where the obvious dangers as a self-contained unit moving a be ut a factory are of a wholly different character to those to which Section 14, sub-section (1), refers. Under Section 22 hoists and lifts, under Section 25 chains, ropes and lifting tackle, and under Section 24 cranes and other lifting machines, are dealt with separately. By Section 24, sub-section (8), "lifting machine" means a crane, crab, winch, teagle, pulley block, gin wheel, transporter or runway, and cro dealt with. The plant included in these Sections serves to remove goods in the course of the processes of production, but there is no reference, directly or by implication, to a vehicle such as a motor car or a truck. The express provisions of Section 24 prevent any analogy between cranes and other lifting machines and the mobile ruck on the factory floor. The Lister truck under consideration had no lifting power but served only to carry goods.
Under Section 151, which deals with the expression "factory," sub-section (1) (vi) excludes any premises from being a factory if used as ancillary to an industrial undertaking for the purpose of housing locomotives or vehicles where only cleaning, washing, running repairs or minor adjustments are carried out. This is a curious exception if a motor vehicle is to be regarded as dangerous machinery in whole or in part.
The Appellant has relied on the truck being a necessary adjunct to the process of manufacture and containing within itself machinery, and has contended that Section 14 deals with "other machinery" than prime movers and transmission machinery, and that the truck falls within "other machinery".
That the word "machinery" need not be interpreted in its widest sense is clear from the case of Parvin v. Morton Machine Co, Ltd., reported in 1952 Appeal Cases, at page 515, where the House of Lords held that Section 14, sub-section (1), of the Factories Act, 1937, does not apply to machines and machinery manufactured in a factory. In that decision more assistance could be obtained from the construction of the Act than is available here. But if this truck is machinery to which the Act applies, so is an ordinary motor car whilst in the factory, at least if used for factory purposes, and that no-one, I would have thought, could have described as factory machinery.
The intuitive or instructive decision, whilst appropriate to a Jury within the ambit of the evidence, is not a satisfying judicial decision, but there are occasions when it may play its part. We were invited to take a common-sense view.
I would approach the matter as this Court did in the case of Rogers v. The Mews of the World (unreported), and in Kimpton v. Steel Company of Wales, reported in 1960 1, Weekly Law Reporter, at page 530, which relied on and quoted an extract from the Judgment of the Master of the Rolls in the former case. I do not repeat the quotation. The question was whether three steps constituted a "staircase" within the meaning of Section 25, sub—section (2), The issue...
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Liptrot v British Railways Board
...whether the mobile crane was machinery to which section 14 of the Act applied. He held in the light of the decision in Cherry v. International Alloys Ltd. [1961] 1 Q.B. 136 "with very considerable hesitation" that it was not. He consequently gave judgment for the Appellants but said that i......
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Liptrot v British Railways Board
...learned judge appears to have taken the view that a good deal of help was to be derived from the decision of this court in Cherry v. International Alloys Limited, (1961) 1 Queen's Bench Division, page 136. That case concerned a Lister truck, which was used within a factory for the purpose o......
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Quintas v National Smelting Company Ltd
...refers to Parvin v. Morton Machine Co. Ltd. (1952 Appeal Cases, page 515) but since then, and after the judgment under appeal, Cherry v. International Alloys Ltd. (1960 3 Weekly Law Reports, page 568) was decided in this court and this incorporated the reasoning of Rogers v. "News of the Wo......
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Irwin v White, Tomkins & Courage Ltd
...driven truck used for transport within and without a factory has been held not to be covered by the words "any machinery": Cherry v. International Alloys, Ltd. [1961] 1 Q.B. 1936. 13 There are also cases in which a limited interpretation has been put upon the wide words "in motion" so as to......