Galashiels Gas Company Ltd v O'Donnell
| Jurisdiction | England & Wales |
| Judge | Lord Normand,Lord Morton of Henryton,Lord MacDermott,Lord Reid |
| Judgment Date | 20 January 1949 |
| Judgment citation (vLex) | [1949] UKHL J0120-2 |
| Date | 20 January 1949 |
| Court | House of Lords |
[1949] UKHL J0120-2
House of Lords
Lord Normand
Lord Morton of Henryton
Lord MacDermott
Lord Reid
Upon Report from the Appellate Committee, to whom was referred the Cause Galashiels Gas Company Limited against O'Donnell or Millar, that the Committee had heard Counsel as well on Monday the 6th, as on Tuesday the 7th days of December last, upon the Petition and Appeal of the Galashiels Gas Company Limited, having their registered office at Bank Street, Galashiels, praying, That the matter of the Interlocutors set forth in the Schedule thereto, namely, an Interlocutor of the Lord Ordinary in Scotland (Lord Blades) of the 13th of June 1947, and also an Interlocutor of the Lords of Session there of the Second Division, of the 6th of February 1948, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutors might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Mrs. Mary O'Donnell or Millar, lodged in answer to 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 His Majesty the King assembled, That the said Interlocutors complained of in the said Appeal, be, and the same are 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 Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by her in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the Certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
I have had the advantage of reading in print the speeches which my noble and learned friends are about to deliver, and I find myself in complete agreement with them. The facts will be dealt with by my noble and learned friend, Lord Reid. I desire only to emphasize that no new principle and no extension of any principle already recognized is involved in the conclusion that the Appellants are liable to the Respondent for breach of the duty imposed on them by section 22 (1) of the Factories Act, 1937. The only question of law in the case is the proper construction of the obligation imposed by section 22 (1) as controlled by the definition of "maintained" in section 152 (1), and on that I wish to add nothing.
My Lords,
Section 22 (1) of the Factories Act, 1937, is in the following terms:—
"Every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained."
The statutory duty which, it is alleged, the Appellants have failed to discharge is contained in the words, "Every hoist or lift shall be properly maintained" in Section 22 (1) read in conjunction with the definition of "maintained" in Section 152 (1):—
"'Maintained' means maintained in an efficient state, in efficient working order, and in good repair."
I think there can be no doubt that this subsection imposes a continuous obligation on the Appellants. I shall shortly consider the precise nature of that obligation. Equally there can be no doubt, in view of the Lord Ordinary's findings of fact, that the brake of the lift in question was not in efficient working order at the time when the accident happened, though it would appear to have worked efficiently during the periods before and after the accident.
The contention of the Respondent, which has so far succeeded, is that she has established a breach of statutory duty by the Appellants simply by proving that the brake was not in efficient working order at that time. If this contention is sound, the appeal must fail, for contributory negligence by the deceased workman has been negatived, and there can be no doubt that the failure of the brake to operate efficiently caused the death of the deceased.
The Appellants contend that no breach of statutory duty has been proved. They contend that their statutory duty is to take such active steps as will ensure that the lift is in efficient working order, and that the Respondent cannot succeed unless she can point to some particular step which the Appellants omitted to take and which would have prevented the accident. They say truly that the Respondent cannot point to any such step, and failed to prove any specific cause for the failure of the brake to operate. They rely strongly upon the following passages in the judgment of the Lord Ordinary, "I am satisfied that the defenders took every practical step to ensure that the lift mechanism worked properly and was safe to use. I am equally satisfied that the failure of the brake was one which, apparently, nobody could have anticipated or after the event explain. … That the defenders took all reasonable steps to provide a suitable lift and to maintain it properly is to my mind established beyond doubt."
My Lords, in my view the Lord Ordinary supplied the correct answer to the whole of this argument when he said, "In my opinion there is imposed on the defenders an absolute and continuing obligation binding upon them, which is not discharged if at any time their lift mechanism, in this case the brake, is not maintained in an efficient state, in efficient working order, and in good repair." The words of the subsection are imperative "shall be properly maintained" and I can find nothing in the context or in the general intention of the Act, read as a whole, which should lead your Lordships to infer any qualification upon that absolute obligation. It is quite true that the subsection, so read, imposes a heavy burden upon employers, but the object of this group of sections is to protect the workman. I think the subsection must have been so worded in order to relieve the injured workman from the burden of proving that there was some particular step which the employers could have taken and did not take. This would often be a difficult matter, more especially if the cause of the failure of the mechanism to operate could not be ascertained. The statute renders the task of the injured workman easier by saying, "You need only prove that the mechanism failed to work efficiently and that this failure caused the accident."
Counsel for the Appellants contended that a decision against him "would go further than any decided case." I do not agree, but even if I did agree, I should not be unduly perturbed. Your Lordships were not referred to any decision upon this particular subsection, but there are other statutory provisions for the protection of workmen which have been held to impose an absolute and continuing obligation upon employers. See for instance:— Smith v. Cammell Laird & Co. Ld. [1940] A.C. 242, Riddell v. Reid [1943] A.C. 1, Carroll v. Andrew Barclay & Sons, Ltd. [1948] A.C. 477. In the last-mentioned case this House had to decide a question as to the nature of the fencing which was required under Section 13 (1) of the Factories Act, 1937, but no member of the House doubted that the obligation as to fencing was absolute and continuous. Lord Normand observed at p. 487 ad fin., "The subsection imposes an absolute obligation in the sense that the obligation, whatever its meaning and effect, must be actually fulfilled and not merely that the occupier of the factory must do his best to fulfil it."
Counsel for the Appellants relied upon the word "properly" in Section 22 (1) and contended that the presence of this word indicates that the obligation of the employers is limited. I cannot agree. If the word "maintain" alone imposes upon the employers the absolute obligation. I cannot see that the addition of the word "properly" can lessen their obligation. In the case of Cole v. Blackstone & Co. Ltd. [1943] K.B. 615, Macnaghten J. had to consider Section 25 (4) of the same Act which provides, "all ladders shall be soundly constructed and properly maintained." The facts were that when a workman named Cole was ascending a ladder a rung gave way, with the result that he fell to the ground and received injuries from which he died. The ladder was subsequently taken to pieces and examined. The strings were made of deal and the rungs of coppice oak, and both the strings and all the rungs, including that which had given way, were found to be in perfect condition. The rungs were screwed to the strings with three-inch steel screws, and it was found that those which had held the rung which had given way had broken in half at a point between the rung and the string and that the fractures were due to corrosion. All the other screws were in perfect condition. A few weeks before the accident happened the ladder had been inspected by a "safety first" committee appointed by the defendants, to which the workmen elected their own representatives, and nothing had been found requiring attention. Cole, who used the ladder several times a day, had never made any complaint about it. Cole's widow was successful in an action alleging breach of the statutory obligation imposed by Section 25 (4) and Macnaghten J. said, in regard to the words "properly maintained".— "Mr. Marshall, for the defendants, submitted that the statutory duty to keep the ladder in an efficient state and in good repair is not an absolute duty, and that the words of the Act must be...
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