Hugh Wearing (Appellant – Plaintiff) v Pirelli Ltd (Respondents – Defendants)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHENSON,LORD JUSTICE BROWN,LORD JUSTICE SHAW |
| Judgment Date | 27 January 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0127-5 |
| Court | Court of Appeal (Civil Division) |
| Date | 27 January 1976 |
[1976] EWCA Civ J0127-5
In The Supreme Court of Judicature
Court of Appeal
(Appeal of Plaintiff from judgment of Mr. Justice Hollings, Carlisle, dated March 5, 1975.)
Lord Justice Stephenson
Lord Justice Browne
Lord Justice Shaw.
MR E.G. GOLDREIN, (instructed by Messrs. Beachcroft, Hyman & Isaacs, Agents for Messrs. Hough Walton & Soul of Carlisle) appeared on behalf of the Appellant (Plaintiff).
MR D.A. PIRIE, (instructed by Messrs. Sinton & Co. of Newcastle-upon-Tyne) appeared on behalf of the Respondents (Defendants).
This is an appeal from a judgment of Mr. Justice Hollings given on the 5th March, 1975, dismissing a young man's claim for damages against his employers for causing him to break the scaphoid bone in his right wrist through their breach of the statutory duty imposed upon them by Section 14 of the Factories Act 1961 and their negligence at common law. Happily his injury was not very serious, and the judge quantified his general damages at £600.
The only question for this court is one of liability: Was the judge wrong in dismissing the plaintiff's claim? Indeed, the question is a narrower one even than that. It is really now simply the question whether there was committed by the defendants a breach of Section 14 (1) which caused the plaintiff's injury: for Mr. Goldrein, on the plaintiff's behalf, has abandoned the main issue of negligence at common law as it was fought at the trial, and as it was pleaded, and be no longer seeks to contend that the defendants failed in the exercise of their duty to take reasonable care for the plaintiff's safety and to provide him with different, better and safer equipment. He has not formally abandoned his case in negligence, but, for my part, I think the learned judge was right in holding that the duty imposed at common law on these employers in respect of the plaintiff was not as high as the absolute duty imposed by the statute, and, in the circumstances which I shall relate, that there was no breach of that lower duty towards him.
The facts of the case do raise an interesting and perhaps not altogether easy point for decision on Section 14 of the Factories Act 1961. The plaintiff had been for something like a year working on a machine which moulded and formed rubber in the course of making motorcar tyres. We have the photographs of that machine which were before the learned judge, and they show a revolving drum, made, we are told, of metal, which revolved towards the operator at a speed of 430 revolutions a minute, or something like 30 miles per hour. On to the drum, apparently from another machine, came rubber of an average thickness of one-sixteenth of an inch. There were parts of the rubber which were occasionally thicker than that, caused by joins or other features, and the thickness was occasionally one-eighth of an inch. On to that rubber at each end of the drum was also imposed some beading, which was partly of metal and partly of rubber, and which presumably stood very slightly proud of the rubber. The rubber formed at each end of the drum a skirt, also shown in the photographs. In looking at the photographs we have to bear, in mind that only the first one shows the drum stationary, and the other three show it revolving at this high speed. That skirt had to be turned over the beading into contact with the rubber, which was laid like a coating in intimately close contact all round the revolving drum. That was done by means of a bobbin to the left of the drum when the operator is dealing with the skirt at the left-hand end of the revolving drum. But that bobbin was apparently unable to do its work of folding back the skirt over the beading completely, and, as the judge put it, the plaintiff, or whoever was conducting this operation, had to lend a hand, and he lent a hand by grasping a small wheel like a cogwheel at the end of a long handle in both his bare hands, putting it under the skirt which projected from the end of the drum under the beading, and helping to case it back on to the drum by pointing it towards the inside of the drum, and then with a circular or semi-circular motion pulling upwards towards himself and round soas to get the skirt folded over into the correct position, an operation which the plaintiff said took him about a minute to two and a half minutes. That was an operation which he had frequently done before, and an operation which had been frequently and safely done by others. It was an operation which was done, according to the evidence, 250 times on an average every one of three shifts by some sixteen operators on sixteen machines of this type. That is how I have understood the evidence. We have not been referred to it in detail, but that is the effect of it, according to the learned judge, and as understood by counsel.
Sometimes when this job was being done there was a jerk which would be caused by the arrival of a thicker piece of rubber on the revolving drum. The plaintiff's account of his accident was that one of these thicker pieces of rubber – presumably one about one-eighth of an inch thick – took charge by suddenly taking hold of the wheel and pulling it downwards. He was doing the job as usual, not only pulling the wheel towards him, but exerting a bit of sideways pressure, but this jerk caused his right wrist to come into contact with the surface of the beading. That produced a small friction burn which was not the subject of any complaint by the plaintiff, but it also, unfortunately, fractured the scaphoid bone in his wrist, an injury which, as is well-known may be the case with this type of injury, was not discovered for some time: and when it was discovered, as I have said, happily it had no serious consequences.
The learned judge found that there was a good deal of exaggeration In the plaintiff's evidence as to the number of times that this jerk occurred. He had the evidence not only of the plaintiff, but of a Mr. Pearson, for the defendants, who told him thathe had experience of these jerks, which happened something like once a shift. When he had these jerks the little wheel he was holding would catch on the skirt, but what would then happen would be that it would give a slight twist and knock his hand downwards and away from the drum; not, as with the plaintiff on this one occasion, knocking his hand against not simply the drum – if it had been simply against the drum the court would not have been troubled with this appeal – but against the beading at a point where it covered the drum itself. That sort of thing, Mr. Pearson said, happened not so much when there was a thicker piece of rubber, but when you were trying to beat the machine in the process of turning over this skirt. The learned judge, therefore, treated this accident as an exceptional one. He had evidence that if your hand was jerked it was jerked away, and that would be due to mishandling by the operator. There was, however, no plea of contributory negligence in this case, and it was not suggested that the plaintiff had done anything wrong in bringing about this rather mysterious accident.
The learned judge was not prepared to find on the evidence of the plaintiff and Mr. Pearson, and of two expert engineers, called one on each side, that there was any failure to take reasonable care of the plaintiff in anything to do with this machine, the way he was required to operate it, the equipment he was given with which to do it, and so on; and it was, as I have said, an operation which had been done safely innumerable times without any record of any accident or injury at all. It is therefore not surprising that the judge dismissed the plaintiff's claim for negligence and that Mr. Goldrein has not seriously challenged that dismissal.
A There remains, however, his dismissal of the claim for breach of statutory duty. The learned judge stated the issue in this way at page 7 "G" of the transcript: "The only issue in this case is whether there was a dangerous part of machinery which caused this injury, and that involves consideration of whether part of the machinery was dangerous, which involves the question of foreseeability." The learned judge asked himself whether there was a dangerous part of the machinery. He properly directed himself as to what "dangerous" meant in line with such authorities as Walker -v- Bletchley Flettons, Bolton and Others -v- Stone and Mitchell -v- North British Rubber Company, and he came to the conclusion that there was a part of this machine which might be a reasonable foreseeable cause of injury to somebody acting in the way in which a human being might reasonably be expected to act in circumstances which might reasonably be expected to occur. He expressed himself as satisfied that there was a foreseeable risk of injury caused by friction burns from the revolving of this drum. He said that If the material, the rubber and the beading, had not been present and contact of the plaintiff's wrist had been with the drum he would have been satisfied that there was sufficient foreseeability for thee to be liability under Section 14. That finding Mr. Pirie, on behalf of the defendants, does not feel able to challenge. So the judge was finding – and the appeal must be decided on the basis of his finding – that this revolving drum was a dangerous part of the machinery, and there only remains the question whether that dangerous part of the machinery, that revolving drum, caused the accident, and whether it caused the accident because the defendants had a duty to fence it and were in breach of that duty.
One matter raised by Mr. Pirie in his respondents' notice can be disposed of at once. He has submitted that there was no duty oh the defendants under Section 14 to guard the drum or the material thereon against contact with the tool held by the...
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