Dickson v Flack
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE DENNING,LORD JUSTICE MORRIS |
| Judgment Date | 17 July 1953 |
| Neutral Citation | [1953] EWCA Civ J0717-3 |
| Judgment citation (vLex) | [1953] EWCA Civ J0717-1 |
| Court | Court of Appeal |
| Docket Number | 1951 D. No. 300 |
| Date | 17 July 1953 |
[1953] EWCA Civ J0717-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
1951 D. No. 300.
LORD JUSTICE SINGLETON,
LORD JUSTICE DENNING, and
LORD JUSTICE MORRIS
Counsel for the Appellant: MR F. W. BENEY, Q. C., and MR DONALD McINTYRE, instructed by Mr W. Timothy Donovan.
Counsel for the Respondents: MR H. B. HYLTON-FOSTER, Q. C., and MR MARTIN JUKES, instructed by Messrs Tiddeman, Coules & Co.
This appeal raises a question under the Wood-Working Machinery Regulations of 1922, as amended, and perhaps, too, a question under Section 14, sub-section (1), of the Factories Act, 1937. It is a case of importance. It really is not a very long case, though there are difficult questions involved. The case occupied some six days in the Court of first instance, and judgment in that Court was in favour of the Defendants. The Plaintiff appeals to this Court.
He is a man who was 67 years of age at the time that he was hurt in an accident in the Defendants' factory on the 27th March, 1950. He, Mr James Dickson, was a very experienced woodworker. He had been on that kind of work all his working life. He was what is called a woodcutting machinist, and he was employed by the Defendants.
On the day of the accident he was operating a vertical spindle moulding machine when something happened inside the machine; a cutter was thrown off and a bolt and a nut were thrown out of the machine, and something caught one of his eyes – it was probably part of a nut or a part of a bolt – and in the result he lost his eye. It was a most unfortunate accident for him, and an accident for which he was not to blame.
In the action which he brought against the Defendants, his employers, it was said, first, that there was a breach by the employers of Regulation No. 17 of the Wood-Working Machinery Regulations, and further or alternatively, there was a breach of Section 14 of the Factories Act, 1937, and it was further said that the Defendant was negligent in that he had failed to perform the duty which he owed to his employees, a duty to take reasonable care that they were not subjected to unnecessary risk.
I said a moment ago that the claim under the Factories Act was an alternative to the claim under the Wood-Working Machinery Regulations. I am not sure that it is wholly accurate to say that it is put forward as an alternative claim. Both are called into use by the learned Counsel appearing for the Appellant. We have not heard argument upon the allegation of negligence at common law. I indicated to Mr Beney at an early stage of his argument that it would be very difficult for him, in view of the Judge's findings of fact, to establish negligence against the Defendant. He desired to keep that claim opon: the main argument has developed upon Regulation No. 17.
The Plaintiff worked in front of a table which is very well shown on photograph "G". He had to pass a piece of wood along the fence so that it came into touch with the cutters, and there was provided a guard which is known as the Shaw type of guard. The advantages of that guard are that it brings pressure to bear upon the piece of wood, which has to pass along the cutters, from above and from the front so that the hands of the operator do not come into touch, or do not get near, the cutters.
On the morning of the accident the Plaintiff had not commenced to put wood through the machine. It was necessary first that he should test the machine to see that the cutters were working properly and that the machine was running evenly, and he was doing the testing when he met with the accident. I draw attention to that because of the suggestion made by Mr Beney that there is a difference between testing time and working time, and that even if it could be said that the Shaw type of guard was the best for ordinary working, it was not the best for use during testing time, and that there oughtto have been another guard for testing time even if the Shaw guard was the best type for working purposes, though he did not admit that it was. I do not think that there is any substance in the distinction which Mr Beney sought to draw. Testing time is very short. I do not think it could have been contemplated that there ought to be another type of guard for testing; that is, a guard other than that which is used normally during the time of the working of the machine, and I propose to approach this case on the basis that if there was the most efficient guard provided for working purposes, that, too, should be regarded as sufficient for the short period during which testing would take place.
The machine is described sufficiently on page 5 of the judgment of Mr Justice Havers. He described it as an old machine, but mechanically in very fair condition. The motive power is electric with flat-belt transmission, the power controls are of the press-button type and conform to the Regulations. The spindle head-piece unit dimensions are 1¼ ins. and 7 ins. long; and upon and, in a sense, below the spindle head-piece there is an inter-changeable square cutter block, and that square cutter block revolves with a spindle unit at 4,500 revolutions a minute. That is a very high speed. Attached to the cutter block there are two cutters which are fastened to the cutter block by means of belts and nuts. I do not propose to go into the way in which they are held. As the cutter block revolves there go with it the two cutters which do the necessary moulding upon the piece of wood which is passed through the machine. The very high speed may mean that there is some loosening of a belt or of belts. That is not likely to happen in the ordinary course, if the nuts have been properly tightened, butit may occur. Sometimes there occurs what is called drift, and a cutter may become a little loose. It does occur in a machine of this type that there may be something happening within the machine which causes a piece, or pieces, of the machine to be thrown out, and if pieces of the machine are thrown out when the machine is revolving at 4,500 revolutions a minute it means that in all probability they are thrown out at speed, and that if they hit someone that person may be hurt.
The danger of something being thrown from a machine has been recognised for very many years, and an examination of the evidence of the expert witnesses called on behalf of the Defendants shows that they recognised it. I refer in particular to the evidence of Mr Bevan when he was cross-examined; he was asked to turn to one of the documents put to him, a pamphlet. The question was this: "It is recognised throughout that document, as you fairly agreed yesterday, that this sort of machine is a dangerous machine. (A) It is recognised throughout this document and throughout the trade. (Q) And also that it is liable to shoot parts of it out at great speed; we are agreed about that? (A) I do not think this document deals particularly with parts of machines coming out."
It was pointed out to him later that the small pamphlet did deal with that matter. Other witnesses spoke of the danger of parts being thrown out of the machine, but fortunately, as far as the evidence showed, they had not known of a great number of accidents from that cause, but from the books which were before the Judge one sees more of the danger which arises from a machine such as this.
There was published in the year 1928 by the HomeOffice: "Safety Pamphlet No. 8. Fencing and Other Safety Precautions for Wood-Working Machinery", and at page 51 there is an article under the heading "Spindle Moulders": "The vertical spindle-moulder or shaping machine is one of the most dangerous tools in common use. It causes a large number of accidents yearly, and a considerable proportion of these result in the loss of several fingers. As with circular saws and over-hand planers the reason lies mainly in the operative's hands being constantly in close proximity to rapidly moving edge tools. The fingers come into contact with the cutters, especially when the work is violently torn from the machinist's grasp in consequence of some irregularity catching in the cutters. The fatal accidents are caused by cutters breaking off or coming loose, and being hurled away with great velocity, due to the centrifugal force developed by their exceptionally high speed, one to seven thousand revolutions per minute. It is therefore of prime importance that suitable safeguards should be chosen for each operation and that cutters should be set with scrupulous care." That is the 1928 book, the larger book.
There is another smaller pamphlet which was also before the Judge: "Form No. 279", which is issued by the Factory Department of the Ministry of Labour and National Service. This was a reprint in the year 1947, but it was published, we know from the evidence, in the year 1935. That small pamphlet gives diagrams of various guards which can be used for this type of work, and on page 14 it has this passage: "The danger to workers at neighbouring machines or benches can be minimised by the provision of guards and screens which will intercept a flying cutter."
Thus it is clear that the danger of parts flying out of a machine has been recognised by those responsiblefor safety precautions for a considerable number of years.
Now I go back further. In the year 1922 the Wood-Working Machinery Regulations were made by the Secretary of State for Home Affairs. They recognise the difficulty which arises in the use of certain machines. The definition is: "'Wood-working machine' means a circular saw, plain band saw, planing machine, vertical spindle moulding machine or chain mortising machine operating on wood." The first three or four of those have to be provided with a guard of...
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