Close v Steel Company of Wales Ltd

JurisdictionEngland & Wales
JudgeLord Denning,Lord Goddard,Lord Morton of Henryton,Lord Morris of Borth-y-Gest,Lord Guest
Judgment Date23 June 1961
Judgment citation (vLex)[1961] UKHL J0623-1
Date23 June 1961
CourtHouse of Lords
Close
and
Steel Company of Wales Limited

[1961] UKHL J0623-1

Lord Denning

Lord Goddard

Lord Morton of Henryton

Lord Morris of Borth-y-Gest

Lord Guest

House of Lords

Upon Report from the Appellate Committee, to whom was referred the Cause Close against Steel Company of Wales Limited, that the Committee had heard Counsel, as well on Monday the 24th, as on Tuesday the 25th and Wednesday the 26th, days of April last, upon the Petition and Appeal of Leo Close, of 43 Llangorse Road, Penlan, Swansea, in the County of Glamorgan, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 2d of June 1960, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of the Steel Company of Wales Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled. That the said Order of Her Majesty's Court of Appeal, of the 2d day of June 1960, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Lord Denning

My Lords,

1

Mr. Leo Close was employed by the Steel Company of Wales Limited at their Abbey Works, Margam, Glamorganshire. On 24th January, 1956, he was in the instrument workshop working with an electric drilling machine drilling a hole in a gear-wheel. The bit of the drill shattered and a piece of it entered his left eye. He claimed damages from his employers on the ground that they were negligent at common law or in breach of their duty under the Factories Act, 1937. Winn, J. rejected his claim on both heads. Mr. Close did not challenge the finding that there was no negligence at common law but he appealed to the Court of Appeal on the claim for breach of statutory duty. His appeal was dismissed and he now appeals to your Lordships' House.

2

His claim is based on section 14 (1) of the Factories Act, 1937, which provides that "Every dangerous part of any machinery … shall be securely fenced …" Those words can be traced back to 1891 where it was provided, by section 6 (2) of the Factory and Workshop Act, 1891, that "all dangerous parts of the machinery" in a factory shall be securely fenced: and this was re-enacted in the Consolidation Acts of 1901 and 1937 in substantially the same words.

3

The meaning of the words "dangerous part" first came up for discussion in 1896 in the leading case of Hindle and Another v. Birtwistle [1897] 1 Q B. 192. It concerned looms in a cotton factory. A shuttle flew out and struck and injured a weaver. The Divisional Court held that it was capable of being a dangerous part of the machinery. It depended on the frequency with which shuttles were likely to fly out. If it was so frequent as to be a reasonably foreseeable cause of injury, it was dangerous. But if it was so rare as to be a minimal risk, it was not dangerous. Wills, J. gave a definition which has been repeatedly approved:

"It seems to me that machinery or parts of machinery is and are dangerous if in the ordinary course of human affairs danger may be reasonably anticipated from the use of them without protection." And Wright, J. said that "The mere fact that the shuttle will sometimes fly out, and that when it flies out it is dangerous, is not enough. It is a question of degree and of fact in all cases whether the tendency to fly out is a tendency to fly out often enough to satisfy a reasonable interpretation of the word 'dangerous'."

4

My Lords, anyone who has practised in the Queen's Bench Division knows that the case of Hindle v. Birtwistle has been cited, very, very many times. Du Parcq, L.J. vouched for it up to 1940 in Stimpson v. Standard Telephones and Cables, Ltd. [1940] 1 K.B. 342 at pp. 360-1; and I can vouch for it since. There was a tendency in the time when Lord Hewart was Lord Chief Justice to adopt a stricter test. He was inclined to make the happening of an accident proof positive that a part of the machinery was dangerous: but this tendency was corrected by my noble and learned friend, Lord Goddard, when he became Lord Chief Justice. In the case of Carr v. Mercantile Produce Co. Ltd. [1949] 2 K.B. 601 he re-established the test of foreseeability laid down in Hindle v. Birtwistle and it has never been doubted since. It received the support of your Lordships House in John Summers & Sons Ltd. v. Frost [1955] A.C. 740, where my noble and learned friend, Lord Reid, quoted the judgment of Wills, J. with approval and added the apt comment: "Subsequent statements of the law have added little to this".

5

Applying the test enunciated in Hindle v. Birtwistle, I have come to the clear conclusion that the bit of this drill is not a dangerous part of machinery. This drilling machine is a well known machine which is used by men at their own homes in doing things for themselves as well as in factories. It is true that the bit occasionally shatters, maybe as often as once a week in a factory like this. But there was no evidence of any previous accidents having happened on that account. The reason is because fragments are so small and light that they usually go only a few inches or at most a foot or two. They have not sufficient force to penetrate clothing, and although the Judge thought there was a distinct possibility that a man's hands might be scratched or cut, there was no evidence of even this having happened. No one had ever known of an accident to an eye before and the chances of such a grave injury were, as the Judge said, "extremely remote". No one ever used goggles for the work and there was no evidence to suggest that goggles should be worn. In these circumstances it seems clear that in the ordinary course of human affairs danger could not reasonably be anticipated from the use of the drill unfenced. It cannot, therefore, be classed as dangerous. True it is that, in one or two passages of his judgment, Winn, J. seems, albeit with considerable hesitation, to have held the contrary. But his finding on the point—involving as it did the true application of the word "dangerous" to the facts of the case—was, I think, open to review by the Court of Appeal and they were quite right to hold, as they did, that this part of the machinery was not dangerous.

6

That is sufficient to decide the case, so that it is not strictly necessary to discuss the further point of law which was argued before your Lordships. It was this: the employers said that even if the bit of the drill was dangerous, it did not have to be fenced, because the danger lay only in the tendency of broken fragments to fly out of the machine. There is no duty under section 14, they said, to fence against flying bits of machine. The Court of Appeal expressed the hope that this House would consider this point and gave leave to appeal for that purpose: and, as it was fully argued before your Lordships, we ought perhaps to do so.

7

In considering this point, it is very necessary to realise that it involves two distinct sub-questions: First, can the part in question properly be said to be a "dangerous part of any machinery"? Second, if it is, what must be done to see that it is "securely fenced"?

8

Upon the first question I think it plain, as matter of common sense, that a part of machinery is dangerous if it is likely in the ordinary course of working to throw off flying bits so as to imperil those around. This was clearly the view of the judges who decided Hindle v. Birtwistle. They held that if the shuttles were likely to fly out frequently and cause injury, they were "dangerous parts" of the machinery which ought to be fenced. And Sir Edward Clarke himself, who appeared for the occupiers of the factory, must have thought so also, for he did not argue the contrary. And whenever the judges have had since that time to consider flying pieces, they have taken the same common sense view. Take the vertical spindle-moulding machine which was before the judges in Harrison v. Metropolitan Plywood Company [1946] K.B. 255 and Dickson v. Flack [1953] 2 K.B. 464. It revolved at a very high speed and contained sharp cutters which often broke off or came loose and were hurled away from the machine with great velocity, causing many accidents yearly. No one could suggest that the cutters were not "dangerous parts" of the machine. Or take the cut-off machine which the Court of Appeal had before them in Rutherford v. R. E. Glanville & Sons (Bovey Tracey) Ltd. [1948] 1 W.L.R. 415. It contained an abrasive carborundum wheel which was driven at 4,000 revolutions per minute. It was apt to disintegrate because of the high speed at which it was working, and when it did disintegrate, the bits flew out with great force. My noble and learned friends, Lord Goddard and Lord Morris of Borth-y-Gest, together with McNair, J., were all quite clear that the carborundum wheel was a "dangerous part" of the machine: and no man surely would say the contrary. None of your Lordships, not even those who differ from me on other points, have doubted that a part of machinery is a "dangerous part" if it is apt to throw off broken or loose bits and cause injury. No one has suggested that Hindle v. Birtwistle was wrongly decided.

9

Now here comes the point: Accepting that the part in question is a dangerous part,...

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