Haigh v Charles W Ireland Ltd
| Jurisdiction | Scotland |
| Judgment Date | 21 December 1972 |
| Docket Number | No. 11. |
| Date | 21 December 1972 |
| Court | Court of Session (Inner House - First Division) |
FIRST DIVISION.
Lord Hunter.
NegligenceMaster and ServantBreach of statutory dutyCutting of scrap safe"Plant""Vessel"Factories Act, 1961 (9 and 10 Eliz. II., cap. 34) sec. 31 (4).
Sec. 31 (4) of the Factories Act, 1961, enacts that: "No plant, tank or vessel which contains or has contained any explosive or inflammable substance shall be subjected (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; "
A workman who was engaged in cutting open an old safe with an oxy-acetylene cutter was seriously injured when an explosion occurred. The cutting operation took place on premises of his employers which were a factory for the purposes of the Factories Act, 1961. The workman's employers were scrap metal merchants who had acquired the safe among a load of scrap. The explosion was caused by the presence in the safe of a quantity of high explosive, which was not known to the workman's employers or the person from whom they had acquired the load of scrap. The workman raised an action of reparation against his employers based upon, inter alia, a breach of section 31 (4).
Held (rev judgment of Lord Hunter) that the safe being part of the stock-in-trade of the employer was not "plant" within the meaning of sec. 31 (4); and, further that it was not a "vessel" within the meaning of sec. 31 (4); and defendersassoilzied.
Dictum of Lindley L.J. in Yarmouth v. FranceELR, (1887) 19 Q.B.D. 647 at p. 658 applied.
Ronald Haigh raised an action of reparation against Charles W. Ireland Limited based on the defenders' negligence at common law and their breach of section 31 (4) of the Factories Act, 1961.
The following narrative of the circumstances is taken from the opinion of the Lord Ordinary (Hunter):"The defenders are engineers and metal merchants and have premises at Greenfield Works, Burnbank, Hamilton, where they have for a considerable number of years dealt in scrap metal in fair quantities, the volume having risen from an average of about 50 tons per day in 1960 to about 150 tons per day in 1970. In the course of their trade the defenders would purchase scrap metal from smaller dealers and then re-sell it to steel works having first, where necessary, cut the individual items of scrap into pieces of suitable shape and size for their customers' requirements. On 4th August 1966 the defenders purchased from the witness O'Neill, who carries on business as a scrap metal dealer at Ayr, a load of scrap weighing 9 tons 7 cwt. 1 qtr. The document No. 48 of process does not state the price, but according to O'Neill, whose evidence I accept, he was receiving about 8, 5s. to 8, 10s. per ton for scrap at that time, so that the price for the whole consignment would probably be in the region of 80. The said load of scrap was delivered in a lorry which O'Neill had hired from a contractor to carry the load from Bicorn Farm, Girvan, to the defenders' premises at Burnbank. There was included in the consignment an old safe, the approximate dimensions and weight of which were respectively 3 feet by 2 feet by 2 feet and 3 cwt. The safe was closed and locked, and it was not accompanied by a key. Some time between 4th and 9th August 1966 the safe was lifted by crane on to a wagon in the defenders' premises, and, probably to enable the crane hook to be inserted, a hole had been made with a pick in the outside of the back of the safe. This hole probably did not penetrate into the interior of the safe. The safe was subsequently lifted off the wagon and again deposited on the ground, and on the forenoon of 9th August 1966 the pursuer was instructed to open the safe by using an oxy-acetylene cutter. This is admitted on record, and the evidence is to the effect that the pursuer received his instructions from the witness Owens, who was at that time the defenders' works foreman, and who intended the safe to be cut up as scrap to be supplied to the steel works. There is also evidence that the cutter used by the pursuer was in fact a propane cutter, but this is not of significance since it is clear that the cutter used by the pursuer operated by the application of intense heat to the metal of the object being cut. According to the pursuer, whose evidence I accept, Owens told him to burn the door of the safe off and, when asked by the pursuer how this was to be done, instructed him to burn the hinges. In order to do this the pursuer, assisted by another workman, pushed the safe over on to its back. The pursuer then applied the burner to the hinges of the door, but did not succeed in getting the door off by this means. He then applied the flame of the burner to the lock, and burned the outer plate so as to obtain access to the locking mechanism. Having done so, he next applied the flame to the lock. He heard a click, and immediately afterwards there was a violent explosion inside the safe which blew it to pieces, causing very severe injuries to the pursuer which involved amputation of his left leg and part of his left hand.
The material which exploded was a quantity, probably between 3 and 10 lbs, of high explosive which contained nitro-glycerin, one of the components of gelignite. It is a reasonable inference from the evidence that the high explosive had been in the safe for many years, probably upwards of a quarter of a century, and by the date of the accident it was probably in a liquefied and very deteriorated condition with the result that it was highly dangerous and very liable to explode if disturbed by friction or subjected to the application of heat. The explosion which injured the pursuer was caused by the cutting operation, either directly as a result of application of heat from the burner to the deteriorated high explosive, or indirectly as a result of friction caused in some way by the cutting operation.
It is clear from the evidence that the presence of the said high explosive inside the safe was unknown to the defenders and also to their supplier O'Neill. Indeed it is apparent that the possibility of the safe containing anything explosive did not occur to either the pursuer or Owens. It is, however, not difficult to infer from the history of the safe how it may have come to contain the high explosive. O'Neill purchased the safe during the summer of 1966, probably late in July, from the witness Kinnaird, who was a licensed grocer carrying on business under the name of E. Kinnaird & Son at the Cross, Dalbeattie. The safe was sold along with a small amount of other scrap, and O'Neill paid Kinnaird 30s. for the lot. O'Neill conveyed the safe and other scrap in his van to Ricorn Farm, where it was dumped until collected by the contractor's lorry and conveyed to the defenders' premises at Bumbank as already described. When O'Neill purchased the safe it was lying in a yard outside the back of dairy premises belonging to Kinnaird at Queens Terrace, Dalbeattie. Kinnaird had obtained the safe as part of the equipment of the said premises at the Cross, Dalbeattie, which he purchased in May 1966 from his cousin Kilpatrick. The safe was then in the back shop at the said premises at the Cross. It was locked, and Kinnaird understood that the key had been lost. When Kinnaird took over the premises at the Cross, the safe was put out on the pavement at the front of the premises, where it lay for a few days before being removed in a van to the dairy premises at Queens Terrace. Prior to May 1966 an ironmongers' business had been carried on in the said premises at the Cross. The said ironmongers' business was old-established and had been carried on for many years up to 1954 by a family called Blyth. In 1954 the said business was taken over by Kilpatrick, who subsequently purchased the premises. When Kilpatrick took over the business, he took over with it the stock and equipment, which included three safes. Two of these safes were usable, but the third, which was obviously very old, was not, since Kilpatrick had no key or other means of opening it. The third safe was the one involved in the accident with which the present action is concerned, and between 1954 and 1966 was left lying unused and unopened at the back of the said premises at the Cross. The use made of the safe prior to 1954 is largely matter of conjecture, but there is evidence that during the period between the wars a Mr Blyth, who then carried on the said ironmongers' business, used to supply the quarries, presumably those at Dalbeattie, with explosives. I understand from the evidence of Kilpatrick that this was the same Mr Blyth who died suddenly at or about the time Kilpatrick took over the ironmongers' business, and it seems reasonable to infer that for this or other reasons the presence of the high explosive in the safe came to be lost sight of. Although the evidence relating to the documents which were found after the explosion, and which had been inside the safe with the quantity of high explosive, is not wholly satisfactory and was in some measure incompetent, it can be said that there is no indication that the safe had been in regular use since about 1940, and I am satisfied that it was not opened or used for any purpose of the ironmongers' business from 1954 onwards."
The parties averred, inter alia:(Cond. 4) "The said accident was also caused by the defenders' breach of statutory duty. It was their duty to comply with the provisions of the Factories Act, 1961, and in particular section 31 (4) thereof In these duties the defenders failed and so caused said accident. Said safe fell within the meaning of the words "plant, tank or vessel." It contained explosive substances. It was accordingly the defenders' duty not to subject it to...
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