Fencing and the Unreasonable Workman
| Author | D. M. Emrys Evans |
| Published date | 01 January 1966 |
| Date | 01 January 1966 |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb01107.x |
94
THE
MODERN
LAW
REVIEW
YOL.
20
mentioned, the balance should be tilted in favour of regarding the
second marriage
as
void and bigamous.
Fortunately, the Privy Council
is
free from the fetters of
stare
decisis
and
it
is hoped that the Judicial Committee will have
an
opportunity of re-examining the question.
K.
L.
KOH.
FENCING
AND
TEE
UNREASONABLE WORKMAN
THE recent case of
Penrce
v.
Stanley-Bridges Ltd.l
raises once more
one of the basic problems underlying the extent and application
of
the Factories Acts safety provisions, namely, that relating to the cir-
cumstances in which the duty to fence arises under section
14
'(1)
of
the Factories Act
1981.
Indeed, this section has been the subject of
so
much litigation that'one could be forgiven for supposing that
its
fundamentals were by now well established. However,
it
may be
that the very simplicity of the safety provisions has been directly
responsible for the tangle of special pleading that has rendered
more than problematical not only the predictability of liability
in
accidents where injury has occurred but also .the securing of
a
measure of preventive caution for the future.
A
skilled maintenance fitter suffered
an
injury, the occasioning of
which was largely unexplaincd, whilst at work adjusting
a
com-
pressed
air
lifting machine: his arm became trapped in some way
between the machine's platform when
it
rose unexpectedly and
an
adjacent conveyor belt. He alleged that the gap between the
machine and the conveyor belt should have been fenced but his
claim
was
dismissed by McNair
J:
On
appeal, the breach of the
duty to fence was urged strongly upon the court but the court,held
unanimously that there was
no
duty at all to fence the gap. Will-
mer
L.J.
said that there were
no
cases where
a
duty to fence arose
from the proximity of a machine to some other part of factory
equipment. The nearest case, he maintainedY2 was
Irwin
v.
White,
Tomkins
Q
Couruge;B
where the danger arose from the proximity of
the moving part of
a
hoist to the stationary parts of the same hoist
-the danger arose, that is, from the proximity of the dangerous
part to another part of the same machine. He then used the
standard test as enunciated by du Parcq
L.J.
in
1987
in
Walker
v.
Bletchley Rettons Ltd.,4
as
to when
a
part of
a
machine is danger-
ous
so
as
to require fencing, to argue that
it
was not reasonably
foreseeable that
an
experienced maintenance fitter would do what
the plaintiff had done. Since this is the basis of his judgment that
there was
no
duty
to
fence,
it
is necessary to call attention to certain
important aspects
of
the
du
Parcq dictum and the manner
in
which
it
has been applied and used by the courts.
1
1965 1
W.L.R.
931; [lo66
9
All
E.R.
694.
2
hlflGI
9
All
E.R.
G94
nt
n.
b90.
8
1964
1
W.l%.
887; [1&34]
1
All
E.R.
646.
4
[l937]
1
A11
E.R.
170
at
p.
176.
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