Haigh v Charles W Ireland Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Lord Diplock,Lord Cross of Chelsea,Lord Kilbrandon |
| Judgment Date | 21 November 1973 |
| Judgment citation (vLex) | [1973] UKHL J1121-3 |
| Court | House of Lords |
| Docket Number | No. 1. |
| Date | 21 November 1973 |
Lord Reid
Lord Morris of Borth-y-Gest
Lord Diplock
Lord Cross of Chelsea
Lord Kilbrandon.
HOUSE OF LORDS
My Lords,
I have had an opportunity of reading the speech of my noble and learned friend, Lord Diplock, and for the reasons which he gives I would dismiss this appeal.
My Lords,
On the 9th August, 1966, the Appellant, who was in the employment of the Respondents at their premises at Burnbank, Hamilton, was instructed to open a safe. The premises are admittedly a factory within the meaning of the Factories Act, 1961. The Respondents are engineers and metal workers. For many years prior to 1966 they had dealt in quantities of scrap metal. In the course of their business they bought scrap metal from dealers and, after cutting the items into pieces of suitable shape and size, they sold such pieces to steel works.
The safe in question had been bought by the Respondents on the 4th August, 1966, from a scrap metal dealer. It was closed and locked. There was no key. The Respondents planned to cut it up so that the resulting scrap could be sold. Accordingly the Appellant, who was employed as a burner, was directed by the foreman to proceed to burn off the door of the safe and to achieve this result by burning the hinges. The Appellant used a propane cutter. His application of the burner to the hinges did not make it possible to remove the door of the safe so he then applied the flame of the burner to the lock. He burned the outer plate so as to obtain access to the locking mechanism. A violent explosion inside the safe then took place. The safe was blown to pieces. The Appellant sustained very severe injuries which involved the amputation of his left leg and part of his left hand.
The reason for the explosion was that the safe contained high explosive. There was a quantity of probably between three and 10 lbs. The Respondents did not know what were the contents of the safe and indeed did not know whether it had any contents. The Lord Ordinary drew the conclusion from evidence that he heard, that the high explosive had probably been in the safe for upwards of a quarter of a century and that it had been placed there by one who in the course of carrying on an ironmonger's business supplied certain quarries with explosives.
The claim which the Appellant presented was based on two grounds, viz., ( a) fault at Common Law and ( b) breach of the statutory duty imposed by subsection (4) of section 31 of the Factories Act, 1961. He failed on the first of these but succeeded on the second. In the Inner House the Appellant did not pursue his first ground and as regards the second the Interlocutor of the Lord Ordinary was reversed. Section 31 of the Factories Act, 1961, provides as follows:
“31.—(1) Where, in connection with any grinding, sieving, or other process giving rise to dust, there may escape dust of such a character and to such an extent as to be liable to explode on ignition, all practicable steps shall be taken to prevent such an explosion by enclosure of the plant used in the process, and by removal or prevention of accumulation of any dust that may escape in spite of the enclosure, and by exclusion or effective enclosure of possible sources of ignition.
(2) Where there is present in any plant used in any such process as aforesaid dust of such a character and to such an extent as to be liable to explode on ignition, then, unless the plant is so constructed as to withstand the pressure likely to be produced by any such explosion, all practicable steps shall be taken to restrict the spread and effects of such an explosion by the provision, in connection with the plant, of chokes, baffles and vents, or other equally effective appliances.
(3) Where any part of a plant contains any explosive or inflammable gas or vapour under pressure greater than atmospheric pressure, that part shall not be opened, except in accordance with the following provisions:
( a) before the fastening of any joint of any pipe connected with the part of the plant or the fastening of the cover of any opening into the part is loosened, any flow of the gas or vapour into the part or into any such pipe shall be effectively stopped by a stop-valve or otherwise;
( b) before any such fastening is removed, all practicable steps shall be taken to reduce the pressure of the gas or vapour in the pipe or part of the plant to atmospheric pressure;
and if any such fastening has been loosened or removed, no explosive or inflammable gas or vapour shall be allowed to enter the pipe or part of the plant until the fastening has been secured or, as the case may be, securely replaced; but nothing in this subsection applies to a plant installed in the open air.
(4) No plant, tank or vessel which contains or has contained any explosive or inflammable substance shall be subjected—
( a) to any welding, brazing or soldering operation;
( b) to any cutting operation which involves the application of heat; or
( c) to any operation involving the application of heat for the purpose of taking apart or removing the plant, tank or vessel or any part of it;
until all practicable steps have been taken to remove the substance and any fumes arising from it, or to render them non-explosive or non-inflammable; and if any plant, tank or vessel has been subjected to any such operation, no explosive or inflammable substance shall be allowed to enter the plant, tank or vessel until the metal has cooled sufficiently to prevent any risk of igniting the substance.
(5) The chief inspector may by certificate grant, subject to any conditions specified in the certificate, exemption from compliance with any of the requirements of subsections (3) and (4) of this section in any case where he is satisfied that compliance with the requirement is unnecessary or impracticable.”
The Factories Act, 1961, is a consolidation Act and section 31 follows upon section 28 of the Factories Act, 1937, section 11 of the Factories Act, 1948, and section 7 of the Factories Act, 1959.
It is beyond doubt that the safe contained and had contained an explosive or inflammable substance. No point was taken to the effect that there were no practicable steps (see subsection (4)) that could have been taken to remove the substance, and any fumes or gas or vapour resulting from it. It follows that the period of possible inapplicability of the positive prohibition laid down by subsection (4) had not been reached. The safe was subjected to an operation or a cutting operation which involved the application of heat and which involved such application for the purpose of taking apart the safe. An explosion was caused which injured the Appellant. It clearly follows that the Appellant was entitled to succeed on the ground that the Respondents were in breach of their statutory duty if the safe came within the words “no plant, tank or vessel”.
The word “plant” is not defined in the Factories Act but it is an ordinary word which is in general use. Like many other English words it has many and diverse meanings as a reference to any dictionary will show. In any particular case its meaning must be found by having regard to its context. When used in connection with a factory no one would regard the word as denoting something growing in a garden: rather would the word be regarded as a somewhat general one covering the equipment or the apparatus or the gear or the implements or the appliances or the machinery which anyone would expect to find in a factory. The reason why the Appellant's claim has been rejected is that the safe was said to be something to which and not by which an industrial process was being applied in a factory and that the safe was not within the word “plant” because in the hands of the Respondents it was a part of their stock-in-trade.
The submission of the Appellant was that in the context of the subsection the safe did come within the word “plant”. The Factories Act, 1961, is an Act which consolidates enactments relating to the safety, health and welfare of employed persons. Section 31 is in a part of the Act containing provisions relating to safety. The emphasis is therefore on taking precautions which will ensure safety.
There is a reference to machinery “or plant” in one earlier section, section 17 of the Act, but the word is not extensively used in the Act. There are indications, however, that the word is included where it is desired to make safety provisions as comprehensive as possible. Thus under section 76 wide powers are given to the Minister to make regulations in the interests of safety and health. He may do so if he is “satisfied that any manufacture, machinery, plant, equipment, appliance, process or description of manual labour is of such a nature as to cause risk of bodily injury to the persons employed or any class of those persons”. Indeed, so wide are the powers given that the Minister may modify “or extend” with respect to any class or description of factory any of the health or safety provisions of Part I, Part II or Part IV of the Act.
A similar indication of the use of words which are comprehensive to ensure that powers are wide to deal with dangerous conditions and practices may be found in section 54. That section gives power to a Magistrates Court to make certain orders if satisfied inter alia that “any part of the ways, works, machinery or plant used in a factory is in such condition or is so constructed or is so placed that it cannot be used without risk of bodily injury”.
For many purposes (notably in regard to Revenue law) in distinguishing between capital expenditure and revenue expenditure it is necessary to recognise a distinction between things which a person uses and needs to use in carrying on a process in his business and other things which he has in his factory and which can...
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