Gill v Donald Humberstone & Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Evershed,Lord Hodson,Lord Devlin |
| Judgment Date | 24 July 1963 |
| Judgment citation (vLex) | [1963] UKHL J0724-1 |
| Date | 24 July 1963 |
| Court | House of Lords |
[1963] UKHL J0724-1
Lord Reid
Lord Evershed
Lord Jenkins
Lord Hodson
Lord Devlin
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Gill (A.P.) against Donald Humberstone & Co. Limited, that the Committee had heard Counsel, as well on Tuesday the 18th, as on Wednesday the 19th, days of June last, upon the Petition and Appeal of Harold Leonard Gill, of 32 Monks Dyke Road, Louth, Lincolnshire, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 27th of July 1962, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Donald Humberstone & Co. Limited, 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 Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 27th day of July 1962, complained of in the said Appeal, be, and the same is 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 Costs incurred by the Appellant in respect of the said Appeal to this House be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
On 29th August, 1959, the Appellant, employed by the Respondents as a painter, was engaged in applying creosote to the roof of a hut at an R.A.F. Station when he fell from the roof and sustained rather serious injuries. He does not now maintain that the Respondents were guilty of any negligence at common law and there is no question of contributory negligence. He maintains that the accident was caused by a breach by the Respondents of the Building (Safety, Health and Welfare) Regulations, 1948, made under the Factories Act 1937.
The roof of the hut, some 90 feet long, sloped at about 19 degrees down to the eaves at each side which were about 12 feet from the ground: the width of each side of the roof was about 15 feet, 8 inches, from the central apex down to the eaves. It was covered with felt to which the creosote was being applied by long-handled brushes. One man worked on a ladder at each side of the roof painting a strip of the roof. The ladders were fastened together at the apex. When a strip was finished the men stepped off the ladders on to the roof and pulled the ladders along the roof so that they could begin painting another strip. They were then sufficiently near the apex to be able to use that as a hand hold.
When the accident happened the Appellant was preparing to move the ladders along the roof. He had put his left foot on the roof and was lifting his right foot from the ladder when his left foot slipped. He had not grasped the apex and was unable to stop himself from slipping down the roof to the eaves and falling to the ground.
Regulation 31 deals with sloping roofs. The only part which would apply in the case is paragraph (1) which is as follows:
"31.—(1) Where work is done on the sloping surface of a roof and, taking into account the pitch, the nature of the surface, and the state of the weather, a person employed is likely to slip down or off the roof, then unless he has adequate hand hold or foothold or is not liable to fall a distance of more than 6 feet 6 inches from the edge of the roof, suitable precautions shall be taken to prevent his so falling."
The Appellant has not alleged any breach of this Regulation. He alleges a breach of another more general provision, Regulation 24, of which the relevant parts are:
"24.—(1) Subject to paragraphs (3), (4) and (5) of this Regulation, every side of a working platform or working place, being a side thereof from which a person is liable to fall a distance of more than 6 feet 6 inches, shall be provided with a suitable guard-rail or guard-rails of adequate strength, to a height of at least 3 feet above the platform or place and above any raised standing place on the platform, and with toe-boards up to a sufficient height being in no case less than 8 inches and so placed as to prevent so far as possible the fall of persons, materials and tools from such platform or place.
(2) The guard-rails and toe-boards used on a working platform or working place shall be placed on the inside of the uprights, and the space between any toe-board and the lowest guard-rail above it shall not exceed 27 inches.
(3) Guard-rails and toe-boards required by paragraphs (1) and (2) of this Regulation may be removed or remain unerected for the time and to the extent necessary for the access of persons or the movement of materials.
(4) On the side of a suspended scaffold facing the wall—
( a) guard-rails where required by this Regulation need not extend to a height of more than 27 inches above the platform if the work is impracticable with a guard-rail at a greater height;
( b) guard-rails and toe-boards shall not be required if the workers sit at the edge of the platform to work and ropes or chains affording all the workers a safe and secure handhold are provided.
(5) ( a) The requirements of paragraphs (1) and (2) of this Regulation regarding toe-boards shall not apply to the platform of a ladder scaffold or of a trestle scaffold or where and in so far as the provision of a toe-board is impracticable on account of the nature or special circumstances of the work.
( b) The requirements of paragraphs (1) and (2) of this Regulation regarding guard-rails shall not apply to the platform of a ladder scaffold if a secure handhold is provided for the full length of such platform or to the platform of a trestle scaffold when the platform is supported on folding trestles or step ladders.
( c) The requirements of paragraphs (1) and (2) of this Regulation shall not apply to a platform provided with suitable guard-rails which is on the outside of a sloping roof."
The Respondents maintain that Regulation 24 has no application to sloping roofs or alternatively that there was no breach of this Regulation. The difficulty is to find what Regulation 24 (1) means. It applies where there is a "working platform or working place". There is no definition of "working place" and all that is said about "working platform" by way of definition in Regulation 3 is that it "includes a working stage". A number of Regulations deal with working platforms and it is not very difficult to get at least a general idea of what the phrase means from Regulations 22, 23 and 25. The typical working platform appears to be a comparatively small temporary structure or contrivance on which a man can stand, or I suppose sit or kneel, when working on a building at some distance above the ground. But what is meant by a working place? The Appellant says that it means any place at which a man happens to be working, but the Respondents say that it has a much more limited meaning than that in this context. They point to the fact that in other Regulations, for example, Regulation 5, there is express reference to "every place at which any person has at any time to work", and that in the old Regulations of 1926 (S.R. & O. 1926 No. 238) the precursor of what is now Regulation 24—Regulation 17—referred only to working platforms. So "working place" was only brought in to supplement "working platform" when the Regulations were expanded and redrafted. The Respondents further maintain that to give a wide meaning to "working place" in Regulation 24 would bring in many cases where it would be impracticable or at least quite unreasonable to apply its requirements. They say that "working place" is only brought in because there are cases where a builder finds it unnecessary to provide a working platform since he finds that a part of the building, so to speak, provides one ready made: in such cases if he uses that ready-made platform he must comply with Regulation 24. But in this case there was no question of using any such place as a substitute for a platform.
In order to determine what weight should be given to these various arguments I find it necessary to make some general observations about the interpretation of Regulations of this kind. They are addressed to practical people skilled in the particular trade or industry, and their primary purpose is to prevent accidents by prescribing appropriate precautions. Any failure to take prescribed precautions is a criminal offence. The right to compensation which arises when an accident is caused by a breach is a secondary matter. The Regulations supplement but in no way supersede the ordinary common law obligations of an employer to care for the safety of his men, and they ought not to be expected to cover every possible kind of danger. They have often evolved by stages as in the present case, and as a result they often exhibit minor inconsistencies, overlapping and gaps. So they ought to be construed in light of practical considerations, rather than by a meticulous comparison of the language of their various provisions such as might be appropriate in construing sections of an Act of Parliament. Section 60 of the Factories Act, 1937, empowers the Secretary of State to "make such special regulations as appear to him to be reasonably practicable and to meet the needs of the case". So the Secretary of State, with the wealth of experience and practical knowledge available in his Department, must have thought the application of each...
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