Eaves v Morris Motors Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HOLROYD PEARCE,LORD JUSTICE WILLMER,LORD JUSTICE PEARSON |
| Judgment Date | 05 July 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0705-2 |
| Court | Court of Appeal |
| Date | 05 July 1961 |
[1961] EWCA Civ J0705-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Holroyd Pearce
Lord Justice Willmer, and
Lord Justice Pearson
(formerly an infant but now of full age)
Mr. JOHN THOMPSON, Q.C. and Mr. RICHARD TUCKER (instructed by Messrs. Herbert Gowers & Co.) appeared on behalf of the Appellants (Defendants).
Mr. A.E. JAMES. Q.C. and Mr. IRVON SUNDERLAND (instructed by Messrs. Alan, Edmunds & Phillips, Agents for Messrs. Hewitt & Walters, Birmingham) appeared on behalf of the Respondent (Plaintiff).
: The defendants appeal from Mr. justice Winn, who awarded damages to the plaintiff for personal injuries sustained by him at his work.
The plaintiff was engaged on piece-work in the task of putting bolts, two at a time, through a milling machine driven by hydraulic power. The speed of the operation is shown by the fact that he could normally hope to deal with 3,000 bolts during the night shift. He stood at a metal table on which was a vice or block into which he inserted two bolts standing upright. He made them secure by tightening a nut. He then pulled the starting handle, whereupon the metal table together with the block traversed a few inches towards the cutting knives of the machine, moving fairly fast. The knives had a guard of vertical bars which allowed the block to pass underneath them and the projecting bolts to pass between them. Thus there was no danger of his hand coming into contact with the knives, while the bolts were being milled by the knives the block momentarily halted. The block (and table) then reversed, the block still holding the bolts emerged once more from within the guard, and returned to the position whence it started. The metal table and block would then halt. The plaintiff would then loosen the nut and remove the bolts. He would insert two fresh bolts, pull the starting handle again, and the whole operation would be repeated.
On the occasion of the accident the machine "repeated" or "performed an uncovenanted stroke". Instead of remaining stationary on the completion of its task it suddenly for no apparent reason started off on its journey again without the plaintiff pulling the starting handle. He was just in the act of removing the finished bolts when this happened. He hastily withdrew his hand to avoid its being drawn towards and against the guard and in so doing cut his hand on a tiny burr or irregularity on the bolt head. This trivial cut became septic and he lost his finger.
The two questions that arise are: First, was there a failure to fence within section 14 of the Factories Act, 1937, and secondly, was there at common law a failure to use reasonable care to see that the machine was properly maintained in consequence of which failure it "repeated"? On both those questions the judge found in the plaintiff's favour.
It is conceded that the block without the bolts in it was not a dangerous part of the machinery. The learned judge said this at page 6"E" of the judgment: "There can be no doubt, in my judgment, that the block is part of the machinery, and at the material moment a moving part of the machinery. I cannot myself believe that it is right to take the view, and I refuse to take it, that the bolts standing in that block were not themselves part of the block. If the block itself had had a sharp edge and by moving forward had cut the plaintiff's finger, then it would have been a moving part of the machinery which was dangerous, moving as it was and giving motion to the bolts which were then physically in it. I think that the block comprised the bolts and the bolts in the block were part of the machinery. I think it may be only playing with words, but I put my thoughts a little differently when I say that the block itself was a dangerous part of the machinery when it moved, because it carried with it those bolts".
Section 14 (l) reads: "Every dangerous part of any machinery, other than prime movers and transmission 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".
Section 14 (3) provides: "Any part of a stock-bar which projects beyond the head-stock of a lathe shall be securely fenced unless it is in such a position as to be as safe to every person employed or working on the premises as it would be if securely fenced. The Secretary of State may, as respects any machine or any process in which a machine is used, make regulations requiring the fencing of materials or articles which are dangerous while in motion in the machine".
Regulations have been made under that section with regard to fencing particular classes, of machinery and when so made they take the place of and to that extent modify the absolute duty to fence under section 14 so far as concerns those particular classes of machinery. No regulations, however, have been made with regard to fencing the material used in machinery.
I feel sympathy with the learned judge's view of the matter and I would gladly accept it, were it not for sub-section (3) of section 14 and authorities which are in my judgment inconsistent with that view.
Sub-section (3) of section 14 would be completely pointless if the true meaning of section 14 (1) was that materials or articles which are dangerous while in motion in the machine can be regarded as part of the machinery and therefore have to be fenced under that section. For sub-section (3) expressly gives the Secretary of State power to make regulations requiring them to be fenced. Moreover it expressly provides for the fencing of a stock-bar which projects beyond the head-stock of a lathe - a typical example of material which is dangerous while in motion in the machine. It is therefore difficult to construe "machinery" in section 14 (l) as including the "materials or articles" which are "in motion in the machine".
I cannot accent Mr. James' ingenious suggestion that the words of sub-section (3) are intended to give the Secretary of State power to modify the rigid requirements of sub-section (l) by making regulations which will supersede them, and which by being in some respects less strict (as, for instance, the Horizontal Milling Machines Regulations, 1928) will give practical help to problems caused by the rigidity of fencing requirements. The words of sub-section (3) do not tolerate such an argument. They are plainly directed to the making of regulations requiring the fencing of materials or articles and not to regulations modifying the fencing requirements of section 14 (l).
In ( Hindle v. Birtwhistle 1897 1 Queen's Bench, 192), it was decided that there had been a failure to fence a dangerous part of machinery when the shuttle flew off a weaving machine and injured the plaintiff. Mr. Justice-Wills said: "Machinery or parts of machinery is and are dangerous if in the ordinary course of human affairs danger may he reasonably anticipated from the use of them without protection".
It is urged by Mr. James that the learned judges were there considering danger as it should be considered, namely, as danger to the workman for whose protection the Act was passed, without restriction on how the danger is caused, provided that the danger emanates from the machinery and can reasonably be anticipated. That is an attractive and sensible approach if the wording of the 1937 Act and the authorities allow it. But in ( Nicholls v. Austin (Leyton) Ltd. 1946 Appeal Cases, 493) the House of Lords on a consideration of the wording of section 14 concluded that the obligation under it was an obligation to guard against contact with machinery and not to guard against dangerous materials ejected from it - an obligation to "fence out" and not an obligation to "fence in".
In ( Carroll v. Andrew Barclay &, Sons Ltd. 1948 Appeal Cases, 477) the House of Lords held that there was no breach of section 14 where a broken belt (part of the transmission machinery) lashed out at the plaintiff and injured him. But doubts were expressed by some of the noble and learned Lords whether, in spite of what vas said in Nicholls case, machines which were dangerous because they ejected loose parts of the machinery (as opposed to materials in it) might not require to be fenced.
In ( Dickson v. Flack 1953 2 Queen's Bench, 464) this court having considered those dicta, held that there was a breach of section 14 when a cutter thrown off (as was not unusual) from a spindle in a woodworking machine injured the plaintiff. The same view was taken by this court in Newnham v. Taggart Morgan & Coles (unreported, 19th July, 1956) and ( Rutherford v. Glanville 1958 1 All England Reports, 532).
In ( Bullock v. Power 1956 1 All England Reports, 498) this court decided that a plaintiff could not recover in respect of injury caused by a loose end of wire which was being wound on an electric drum. The ratio of the case is in certain respects conclusive of the present case. The court founded itself on Nicholls' case and on the distinction there drawn between the machinery and the materials in it.
Mr. James argued that that case would not now be so decided since this court was then largely relying on the view in Nicholls' case that the purpose of fencing under section 14 was to keep out the body of a workman and not to fence in flying objects, and that, since subsequent cases such as Dickson v. Flack have held that this view did not apply in respect of flying pieces of machinery, the natural force of Bullock v. Power is abated. Therefore he urged us to return to the broad commonsense view expressed by Mr. Justice Wills and Mr. Justice Wright in Hindle v. Birtwhistle. But Nicholls' case decided that material is a separate thing from the machine which controls...
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