Gatehouse v John Summers & Sons Ltd
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LORD JUSTICE BIRKETT,LORD JUSTICE HODSON |
| Judgment Date | 05 May 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0505-2 |
| Court | Court of Appeal |
| Date | 05 May 1953 |
[1953] EWCA Civ J0505-2
In The Supreme Court of Judicature
Court of Appeal
The Lord Chief Justice of England (Lord Goddard)
Lord Justice Birkett and
Lord Justice Hodson
Mr H. EDMUND DAVIES, Q.C. and Mr W. L. MARS-JONES (instructed by Messrs Carpenters, Agents for Messrs Laces & Co., Liverpool) appeared on behalf of the Appellants (Defendants).
Mr F. W. BENEY, Q.C. and Mr F. ELWYN JONES, Q.C. (instructed by Messrs Rowley, Ashworth & Co.) appeared on behalf of the Respondent (Plaintiff).
This is an appeal from a Judgment of Mr Justice Pearson, who awarded damages to the Plaintiff as the administratrix of her late husband who was killed while carrying out an operation, which I will describe in a moment, at the works of the Defendants. The learned Judge assessed the damages at something over £4,000, but deducted 25 per cent because he held that the deceased man had to some extent brought about the accident by his own negligence.
Now, the facts which give rise to the matter are these: The deceased man was an electrician — no doubt an electrician of experience — and he had been employed by the Defendants for some time. The Defendants, at their works in Wales, have a travelling crane which travels up and down on a gantry on rails. The object of this crane is to lift scrap steel. The lifting apparatus is not done by a grab; it is done by a powerful magnet weighing, no doubt, a great many tons, which picks up the steel and has to be kept electrified. Accordingly, quite independent of the lifting machinery — that is to say, the machinery which would haul up the magnet once it had attracted the metal — it has this electrical cable coming down to the magnet, which is, in effect, an electrical lead; it leads the electric current to the magnet.
This cable is wound on a separate drum to any other part of the machinery, and, of course, the stress that is put upon it I suppose varies from time to time. This gantry (it is near the sea) is exposed to considerable wind pressure at times, and if there is a high wind blowing it so happens that from time to time the cable gets blown off the drum. It is generally blown off the drum to the side nearest to the cat-walk or gangway alongwhich electricians or other workmen can walk. It does sometimes happen, but rarely, that it gets blown off on the far side from that which the electrician would go up to correct the cable if it gets blown off the drum. No doubt that rarely happens, but it has happened on certain occasions, as the Judge found. In fact, the position into which the cable got on this day, which was that it had been blown off on the off side or far side from the gantry, is described by the Judge as "a rare and exceptional, but not unprecedented or extraordinary occurrence".
On this particular day, not only did the cable get blown off the drum, but it jammed. It was not a mere matter of replacing it on the drum, but it had jammed, and the electrician, the deceased man, was called up the ladder because the crane man could not, by manipulating the drum, procure it to work again and release the jamming. The man came up and he stood in a position with one foot on the rail upon which the crane ran — a sort of railway line — and the other foot on the pedestal part of the crane. That was undoubtedly a very dangerous position, because he was putting himself directly over the space through which he could fall and did fall a distance of some 26 feet, or something like that. He fell, in fact, on to the scrap metal below and was killed.
The reason he fell was this: Having put himself into that position, which no doubt was a dangerous position, he proceeded to pull with both hands on this electric cable, hoping to release it where it was jammed and get it back on to the drum. Unfortunately, the cable had got a defective joint, the joint broke, and that caused him to fall backwards, and that is how he met his death.
Now, this cable was of substantial construction, and the evidence was that it ought to have borne the strain of eight men. As it was, the jerk, or whatever this man gave, broke it, because it had got a defective joint. It had been jointed at some time and it had not been jointed properly; but the evidence of both the expert witness called for the Plaintiff and the expert witness called for the Defendant was that had this been properly jointed in the way it should have been the cable would have been as strong after the joint had been repaired and properly welded, or whatever the correct expression is, as if it was a new cable.
Now, the action was framed on two grounds. First it was said that there was negligence at common law in not providing the deceased man with proper plant; there was a defect in the plant which it was the duty of the Defendants to provide for the safe working of their men; and, secondly, it was put on the ground of breaches of the Factory Act, first of the particular section of the Factory Act to which I referred and secondly to one of the electricity regulations that are made under the Factory Act.
There is no question about it that the position which this man took up and the method which he adopted for remedying this jam was dangerous. In fact, his own expert described it as, or agreed that the method he adopted was about the most dangerous that he could have adopted. He could have adopted other methods. The most simple would seem to have been to have given a direction to the crane man to lower the magnet slowly in the hope that that would (apparently it was expected it would by the crane man) have loosened the jam sufficiently at any rate for this man, the deceased, to get it back on to the drum. He might have had the crane taken along thegantry to the end where he could have stood in a position of some greater safety, or he might have used planks and put them across the rail; but even then, if he had adopted that method, he would have been standing on two planks which would have formed a sort of platform, and if he was pulling hard on to this defective cable and it had broken, the same result would probably, I should think, have followed as did follow.
However that may be, the Judge has found — and this Court sees no reason to differ from him — that the main cause of the accident was the breaking of this cable owing to the defective joint; but the learned Judge has also found — and this Court can see no reason for differing from him — that the man contributed to his own misfortune by standing in the position that he did, and using (I think he also took this into account) both hands to pull at this cable. He was standing in a hazardous position when he might have only pulled with one hand, seeing the best he could have done with that, and held on to something with the other hand; but, as I say, the learned Judge thought that the main cause of the accident was the breaking of this cable.
Now, as this cable broke in the way that it did and it ought not to have broken, it seems to follow inevitably that there was a defect in this plant, because this man would see this thick cable, which was something over an inch thick, I think, — it would certainly carry the weight of eight men — and therefore the deceased was certainly entitled to assume that, if he pulled on the cable himself, whether he used one hand or two he was putting his whole weight on the pull, it would withstand him. Instead of that, it broke.
This Court has come to the conclusion that there was here a defect in the plant which ought not to haveexisted, and, it being the duty of the Defendants to supply their men with proper plant and not with defective plant, that the man was doing a thing which was certainly a method of righting this cable, and that if he had been standing in a position of greater safety or holding on with one hand, no-one can say, and certainly the Judge did not find, that he was adopting a wholly improper method. What he was doing was this: He was standing in a position which he need not have put himself into and was a position which was hazardous. The learned Judge, as I say, found that he contributed to his own misfortune to the extent of 25 per cent, and this Court does not see any ground upon which they can differ from that finding; but the learned Judge did not put his Judgment on the ground of common law negligence. He thought that the matter depended upon a breach of the statutory duty.
This Court thinks that at any rate on the findings of the learned Judge he could have found and ought to have found that there was a breach of the common law duty as well.
That is enough to really dispose of the case, because if there was a breach of the common law duty which had formed part of the Plaintiff's complaint In the action, Mr Beney was quite entitled, on behalf of the Respondent, to uphold the Judgment in any way that he could, and if the Court came to the conclusion that there was common law negligence, whether they thought there was a breach of statutory duty or not, that is enough to uphold the Judgment.
At the same time, we have been much pressed to give an opinion upon the question of the breach of statutory duty, and for myself I think there was a breach of statutory duty here, though not a breach ofSection 24 of the Factory Act, which deals with lifting machinery, because the cable that broke was no part of the lifting machinery; it was a mere electrical...
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