Cross v Midland and Low Moor Iron and Steel Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Evershed,Lord Morris of Borth-y-Gest,Lord Hodson,Lord Donovan |
| Judgment Date | 19 November 1964 |
| Judgment citation (vLex) | [1964] UKHL J1119-2 |
| Court | House of Lords |
[1964] UKHL J1119-2
House of Lords
Lord Reid
Lord Evershed
Lord Morris of Borth-y-Gest
Lord Hodson
Lord Donovan
After hearing Counsel as well on Tuesday the 13th as on Wednesday the 14th, days of October last, upon the Petition and Appeal of Midland and Low Moor Iron and Steel Co. Ltd., of Midland Iron Works, Union Street, in the County Borough of Rotherham, in the County of York, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice, of the 12th of March 1964, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioners might have the relief prayed for in the Appeal, or such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; and Counsel having been heard on behalf of Thomas Keddy Cross, the Respondent in 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 a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice, of the 12th day of March 1964, 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 said Order of a Divisional Court of the Queen's Bench Division of Her Majesty's High Court of Justice be Varied by expunging therefrom the words "And it is further Ordered that the Respondents do pay to the Appellant or his Solicitors his costs of this appeal such costs to be taxed by a Taxing Master."
My Lords,
This appeal arises out of an Information laid before the Rotherham Justices to the effect that a certain dangerous part of a machine in the Appellants' factory was on 8th April 1963 not securely fenced whereby the Appellants were guilty of an offence under the Factories Act 1961. On that date an employee had sustained injury while working the machine. The Justices dismissed the Information but stated a case at the request of the Respondent, an Inspector of Factories. A Divisional Court (Lord Parker, L.C.J., and Widgery and John Stephenson JJ.) allowed the appeal, certified that a point of law of general importance is involved and gave leave to appeal to this House.
The question of law relates to the meaning of the word "dangerous" in the phrase "every dangerous part of any machinery" in section 14 (1) of the Act. The machine has been described in the Case Stated and by my noble and learned friend Lord Evershed. The purpose of the machine is to straighten bars. For this purpose the bar is fed in between two sets of grooved wheels at a speed of about 20 inches per second. The accident on the day in question occurred because the man who was feeding in the bar had his attention momentarily distracted and his hand was carried along by the moving bar and nipped between it and the first of the wheels.
It is not disputed that, if the Act requires us to consider the position when the machine is doing its usual work, the moving wheel was dangerous because the possibility of an accident like that which happened was reasonably foreseeable. But the Justices dismissed the Information on the ground "that the only danger was created by a nip as a bar was going through the machine so that there could be a trapping between the bar and one of the leading in rollers, and that there was no duty to fence against a danger created by the juxtaposition of a moving piece of material and a part of the machine not in itself dangerous." By "not in itself dangerous" the Justices mean that if the machine were running light doing no work there would be no danger: then the lower wheels would be revolving being power driven, the upper wheels being free would be stationary, and there would be a sufficient gap between the upper and lower wheels to make it impossible for a man's hand or clothing to be nipped between them.
The purpose of this legislation is to promote the safety of workmen when they are at work and I would find it very surprising if the Act requires us to disregard dangers which arise out of the ordinary working of the machine, and only to have regard to dangers which can arise when the machine is running light before normal working begins. But the Appellants argue that the authorities require us to reach that conclusion. They rely chiefly on what was said in this House in the series of cases beginning with Nicholls v. F. Austin (Leyton), Limited [1946] A.C. 493. The decisions in those cases do not assist the Appellants, because they were concerned with fragments of the workpiece or of the machine itself being violently ejected by the machine and causing injury to a person nearby. It was held that the only duty was to fence against the workman (or his clothing) coming into contact with the dangerous part of the machine, and that there was no duty to fence against anything which might be ejected from the machine. But in the present case the workman's hand did come in contact with the wheel; it was nipped between the wheel and the bar. I made some observations about these cases in Sparrow v. Fairey Aviation Co. Ltd. [1964] A.C. 1019 and I will not repeat them here. In Sparrow's case I thought that we were bound by those decisions. But in the present case the Appellants can only rely on certain observations in the speeches of noble Lords in those earlier cases.
It is clear that none of those who made those observations had the present problem in mind. Danger from fragments flying out was being contrasted with danger from contact with the machine itself and danger arising from juxtaposition of the machine and the workpiece never appears to have been considered. I attach more importance to general observations about the meaning of "dangerous" in this context, which are to be found in a number of cases. I quoted three of them in Summers v. Frost [1955] A.C. 740 at p. 765 and I need not set out the quotation again here. All appear to contemplate the test being applied when the machine is in use. Wills J. refers to danger which "may be reasonably anticipated from the use of them without protection"; and Lord Cooper refers to the "operative intent upon his task". We were not referred to, and I am not aware of any other case, apart from certain recent decisions at first instance, where it has been held or suggested that to be a "dangerous part" the part must be dangerous in itself when no work is being done. The decisions to which I refer were in cases where a moving workpiece came so near to a stationary part of the machine as to create danger. In Salter v. Plenty, decided by Hallett J. in 1954, the danger was created by a large crankshaft in a lathe coming near to a stationary bar which was part of the machine. Hutchinson v. English Steel Co., decided by Lynskey J. in 1955, was a somewhat similar case. In a case decided by Ashworth J., Lewis v. High Duty Alloys Ltd. [1957] 1 W.L.R. 632 the danger was created by a workpiece on a moving table passing close to a stationary part of the machine.
A workpiece is not part of the machine and therefore cannot be a dangerous part of it. So in such cases the Act could only apply if the stationary part of the machine were held to be a dangerous part which had to be fenced. This matter was raised in argument in the present case but it is unnecessary to decide the point now. As it appears to arise fairly frequently and to be of considerable importance to those interested, I prefer to leave it for decision in a case where it arises directly. I think there are arguments both ways and I should add that there are other cases conflicting with those which I have mentioned. In the present case the injured man did —— come into contact with a moving wheel, and, if I am right in holding that we must have regard to the wheel when doing its odinary work, then the wheel was a dangerous part of the machine and this appeal must be dismissed.
My Lords,
I agree that this appeal should be dismissed.
The question posed for your Lordships' decision is whether a piece of machinery, installed in the premises of the Appellants as occupiers of a factory, was dangerous within the meaning of section 14(1) of the Factories Act, 1961. The piece of machinery in question is called a Bigwood Roller R.S. 3 Bar Straightening Machine and its nature, purpose and characteristics are fully described in the judgment of the Lord Chief Justice in the Divisional Court and in the photograph supplied to your Lordships and the plans referred to by the Lord Chief Justice to which, if necessary, further reference may be made. For the purposes of the decision which your Lordships are asked to pronounce it is, I conceive, sufficient to describe the machine as follows: It consisted of eight drums or rollers disposed laterally in two rows one above the other, each drum having grooves within it. The lower row of four drums (somewhat larger in diameter) are placed laterally in conjunction so that when the machine is set in operation they revolve in a clockwise direction at a moderately high speed. The upper four drums which are laterally parallel to the lower drums (though no individual one is immediately vertically above the other) are separated at their nearest points from the lower drums at a distance of some 1 3/8 inches. When the machine is put in operation the lower series of drums is set in motion but the upper drums remain stationary. It was and is, however, the purpose and achievement of the machine to pass between the two rows...
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