Close v Steel Company of Wales Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 02 June 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0602-3 |
| Date | 02 June 1960 |
| Court | Court of Appeal |
[1960] EWCA Civ J0602-3
In The Supreme Court of Judicature
Court of Appeal
The Master of the Rolls
(Lord Evershed)
Lord Justice Ormerod and
Mr. Justice Davies (not present)
MR. H. E. HOOSON, Q.C. and MR. BRUCE GRIFFITHS (instructed by Messrs. Evill & Coleman) appeared, for the Appellant, Plaintiff below.
MR. ALUN DAVIES (instructed by Messrs. Kenneth Brown Baker Baker & Co.) appeared for the Respondents, Defendants below.
: The judgment which I am about to read is the judgment of the Court.
The facts in this case may be shortly and simply stated. The plaintiff appellant, who is 32 years of age, was on the 34th January, 1956, working at the Abbey Works, Margam, of the defendant Company, He was operating an electric drill for the purpose of drilling l/16th inch holes through a gear wheel. The drill, illustrated in a photograph which we have, was of the kina which we understand to be in common use and, when drilling, a bit, being a short piece of very hard steel of the requisite diameter is inserted into the base of the drill and the base is then lowered on to the object to be drilled. When thus lowered on to the object to be drilled, the current is turned on and the drill revolves at a high speed up to 3,000 revolutions per minute and so drills the required bits.
On the occasion in question, the bit broke and shattered and a piece or pieces of the broken drill entered into and injured the plaintiff's left eye. In the present proceedings, he sued the attendants both on the ground of common law negligence and for breach of duty under section 14(1) of the Factories Act, 1937. The learned judge dismissed the action under both heads. There has been no appeal against the learned judge's dismissal of the claim at common law but the defendant has contended here that the case is, on its facts, within the scope of section 14(1) of the 1937 Act, and that we should hold the defendants liable accordingly for a breach of their duty under that sub-section. Section 14(1) of the Act is as follows, so far as relevant: "Every dangerous part of any machinery shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced: Provided that, in so far as the safety of a dangerous part of any machinery cannot by reason of the nature of the operation be secured by means of a fixed guard, the requirements of this sub-section shall be deemed to have been complied with a device is provided which automatically prevents the operator from coming into contact with that part,"
The sole question than raised in the appeal is whether the Respondents were in breach of the statutory duty imposed by Section 14(1) of, the Factories Act, 1937; for if they were, it is not in doubt that the Appellant's accident was a direct consequence of the breach.
The true question may indeed, in our judgment, be more concisely stated thus: on the facts of the case as found by the judge, was the part of the drilling machine into which the bit was inserted (or, possibly, was the bit itself) a "dangerous part" of the machine? Upon the evidence in the case it was found by the judge that the fracture or shattering of these bits in the ordinary course of the working of the machine was common enough. So much is not in dispute, Mr. Davies for the Respondents conceded that it could be taken as a weekly occurrence in the shop. It is at this point that, in our judgment, the crucial difficulty arises. It seems clear enough upon the evidence that the result of the breakage of a bit is that its fractured parts are thrown outwards by the rapid revolutions of the instrument. The learned judge's findings upon this vital matter of fact were as follows: I read at page 8 of the judgment between the letters D and E. "Mr. Hewitt" - an expert called in the case - "Mr. Hewitt did not know of any employer who fenced or covered any hand-drill as distinct from pillar drills, and he told me that no precautions were to his knowledge taken against the risk of eye in-juries for shattered drill bits, which he regarded as a very small risk, albeit a risk of a grave injury. He agreed it was a frequent occurrence for a bit to break, and that when it aid break it usually shattered into fragments which fly about, though normally they fly only a couple of feet at the most, usually less, and only fly level or downwards". Again, at page 11, letter B, the learned judge said: "there is no evidence of known prior accidents caused by fragments through a flying out, nor any evidence that the Defendants or any responsible representative of theirs had Knowledge of or any reason to foresee an injury from a breaking of any consequence at all, I do not exclude the distinct possibility that there might be superficial scratches or minor penetrating wounds, of the in particular". Finally, I will read a passage from page 14 between A and E: "although it would be inaccurate to say that the bit of this drill was not a dangerous part of machinery within the test hitherto accepted and applied, it is not a part the dangerous character of which is in the same category of danger as the danger involved in spinning a carborundum wheel at 4,000 revolutions, or in spinning the type of wood-cutting machinery which is dealt with in the cases to which I shall be referring. The danger involved in the case of this type of 1/16" high speed carbon steel bit is a danger of the occurrence, or a risk of the occurrence, on not infrequent occasions of very slight and trivial injury; together with a remote (and in my judgment extremely remote) risk of the occurrence, in very exceptional conditions, of such a grave injury as most unfortunately was suffered by this Plaintiff on this occasion, I think that it is right, as Mr. Breuan Rees urged upon me to say, and I do accept this from him, that it was foreseeable that such an injury to the eye of a drill operator would or might sooner or later - in the course of many hundreds of thousands of operations - occur. But it was not a risk which a reasonable man would have foreseen would occur in his factory within measureable time, within it might be the lifetime of any particular workman, The risk was as remote in my judgment as that".
It is never easy in a case of this kind - and in on extemporary judgment - to express a finding with the clarity and precision sufficient to satisfy the later discussion in the Court of Appeal; though we are very far from criticising in this respect the language used by the judge in his very careful judgment. But we were in the circumstances properly referred to the transcript of the evidence, Mr. Hooson for the Appellant suggested that the statement by the judge to the effect that the pieces would not fly out at an angle higher than the plane of the base of the instrument was not really justified; that a workman might well in any case bring his eye down to that level or very near it; and that if the entry of a fragment into the worker's eye was something foreseeable at all, then it was an accident which however improbable on any given day yet might happen tomorrow no less probably than thirty years ahead. On the other side it was said by Mr. Davies that the ejection of a fragment in an upward direction was something that would not occur except in unusual circumstances not to be expected or readily explained; and that, though an accident such as occurred to the Appellant was foreseeable in the sense that it could not be excluded from contemplation if you thought about it, still it was something the chances of the happening of which were so remote that it was only foreseeable in the sense that it was capable of rational imagination; but on the other hand could not be reasonably expected to happen in the ordinary course of working - a view supported by the evidence that, although the use of these drills was extremely well known, no similar had ever been recorded? in other words that it was foreseeable in the same way that you would describe as foreseeable the chance that a man walking along the pavement might be run down by a motor car which for some quite exceptional reason had mounted the kerb. It was further said by Mr. Davies (and this was not, we think, in dispute) that the injuries which a man might in the ordinary course receive from flying pieces of bit (for example, a slight scratch on the hand) were too trivial for notice since the pieces were not ejected, according to the evidence, more than about a couple of feet and could not be said to fly with any force. Finally Mr. Davies draw attention to the circumstance (material in considering the question of danger) that the learned judge had rejected the suggestion that goggles ought to be provided (as the evidence showed that they never had been) and acquitted the Respondents of any common law negligence - conclusions which Mr. Hooson did not challenge before us.
In the circumstances it may be useful to quote one or two passages from the evidence of the Respondents' expert witness, Mr. Hewitt, which we regard as fairly representative, I take first a short passage on page 50 of the transcript in the examination-in-chief: (Q) What do you say about the possibility of such an accident happening? (A) I should it vary remote indeed. I have broken many drills myself. I have no doubt it is a very common occurrence, a daily occurrence in industry; but I have never yet seen a driller wearing goggles at work, those people who do nothing else all day, every day, but drill holes." On page 51 by E, in cross-examination, I find this question: "It follows, there-fore, dose It not, that upon such shattering the shattered pieces may fly out in all directions? (A) Not quite in all directions, they will fly, yes. (Q) And at quite some considerable...
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