Irwin v White, Tomkins & Courage Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Hodson,Lord Guest,Lord Devlin,Lord Pearce |
| Judgment Date | 12 February 1964 |
| Judgment citation (vLex) | [1964] UKHL J0212-2 |
| Date | 12 February 1964 |
| Court | House of Lords |
[1964] UKHL J0212-2
House of Lords
Lord Reid
Lord Hodson
Lord Guest
Lord Devlin
Lord Pearce
Upon Report from the Appellate Committee, to whom was referred the Cause Irwin against White, Tomkins and Courage Limited, that the Committee had heard Counsel, as well on Tuesday the 3d, as on Wednesday the 4th, Thursday the 5th and Monday the 9th, days of December last, upon the Petition and Appeal of Margaret Irwin, of 12 Victoria Road, Sydenham, in the City of Belfast in Northern Ireland, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal in Northern Ireland of the 25th of January 1963, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, 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 White. Tomkins and Courage 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 in Northern Ireland of the 25th day of January 1963, in part complained of in the said Appeal, be, and the same is hereby, Reversed: And it is further Ordered, That the Judgment of the Honourable Mr. Justice Black of the 4th day of May 1962, thereby Set Aside, be, and the same is hereby, Restored: And it is further Ordered, That the Respondents do pay or cause to be paid to the said Appellant the Costs incurred by her in the Court of Appeal in Northern Ireland, and also the Costs incurred by her in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice in Northern Ireland, to do therein as shall be just and consistent with this Judgment.
My Lords,
The main question in this case is whether certain machinery in the Respondents' mill was within the scope of the Factories Act at the time of the accident which caused the death of the Appellant's husband. They had been installing some new machinery including seven sack hoists to raise sacks to the first floor and corresponding conveyor belts to remove sacks hoisted by the hoists. The installation was not complete and the machinery had not been taken into commercial use, but the sack hoist which caused his death was complete. The deceased was in charge of the installation and he was running this sack hoist for some purpose—probably testing it. For some reason which we do not know he climbed on to the conveyor belt which had not been completed and either he must have put his head through the "window" through which sacks came off the hoist on to the conveyor belt, or he must have slipped and fallen so that his head went through that "window". All that we know is that his neck was struck or caught by a descending bar and he was killed.
The Appellant's case is that the Respondents were in breach of sections 15 and 17 of the Factories Act (Northern Ireland) 1938 in failing to have this part of the machinery fenced, and that this breach caused the accident. I agree with your Lordships that the jury were entitled to find that this part was dangerous, that it could have been fenced and that a fence would probably have prevented the accident. The question is whether there was any statutory obligation to fence at the time of the accident. The Respondents maintain that no such obligation arose until the machine was taken into use. So I must examine these two sections.
Section 15 (1) provides that:
"Every dangerous part of any machinery, other than prime movers and transmission machinery, shall be securely fenced".
The exception and the proviso do not apply to this case. I agree with the Respondents to this extent: there cannot be a dangerous part of any machinery until there is machinery, and machinery means machinery which has been installed as part of the equipment of the factory. There is no statutory obligation to fence while a machine is being erected; at that stage the employee can only rely on his employers' common law obligations. The Respondents did contend that the hoist and conveyor belt were only parts of a single machine which was not yet complete, but I agree with Lord MacDermott L.C.J, that the hoist was an independent machine—"it was a machine in its own right, as it were, and it had been erected and completed before the accident".
The Respondents sought to support their contention that the obligation to fence does not arise when the machine has been completely installed but only when it is taken into use by reference to the proviso to section 15 (1) and to section 17. Under the proviso, if the safety of a dangerous part cannot by reason of the nature of the operation be secured by a fixed guard, there is permission to provide a device "which automatically prevents the operator from coming into contact with that part". The Respondents say that that shews that this provision, and therefore the whole subsection, cannot come into operation until there is an "operator" carrying out the operation for which the machine is used. But in my view the proviso does not limit the class of persons protected. If at a time when the machine was not producing anything someone other than the operator was endangered by the absence of the required automatic device, there would be liability under the statute. So this provision throws no light on the question when the statute begins to apply.
Section 17 requires rather more detailed examination. It provides that fencing required by the Act shall be kept in position while the dangerous parts "are in motion or in use". There is an exception to this when the parts are exposed for examination, lubrication or adjustment: but then additional precautions prescribed by regulations must be taken. The Respondents contend that the phrase "in motion or in use" shews that the section cannot be intended to apply until the machine has been taken into use. But the phrase cannot mean in motion and in use for then the exception would be unnecessary. It is not obvious why the words "or in use" were added: it may be because parts which are not in motion may nevertheless be dangerous while the machine is in use.
Some argument was based on the history of this section. The Factory and Workshop Act, 1878, section 5 (4) required that fencing should be maintained while the parts "are in motion or use for the purpose of any manufacturing process". But that must have been found to be insufficient because in the Factory and Workshop Act, 1901, section 10 it was expanded: the fencing had to be maintained while the parts "are in motion or use, except when they are under repair or under examination in connextion with repair, or are necessarily exposed for the purpose of cleaning or lubricating or for altering the gearing or arrangement of the parts of the machine." Clearly the present case would not have been covered by the 1878 Act and it might have been difficult to say whether it was covered by the 1901 Act. But now the exception has been narrowed and it does not cover the present case.
The words "in motion" can cause difficulty. They were considered in Richard Thomas & Baldwins, Ltd. v. Cummings [1955] A.C. 321. But I find it unnecessary to pursue that topic because I think that on any possible view the dangerous part was in motion when this accident occurred.
Finally the Respondents relied on the case of Parvin v. Morton Machine Co., Ltd. [1952] A.C. 515. There it was held that the fencing provisions of the Act do not apply to machinery which is being manufactured in a factory and which is not part of its equipment. The Respondents rely particularly on the speech of Lord Normand but at the beginning of his speech he set out the question very clearly. "It is whether the provisions of sections 14(1), 16 and 20 of the Factories Act, 1937, apply to machines or machinery manufactured in the factory or only to machines or machinery for use in the factory in the processes of manufacture or as ancillaries to these processes". The machinery in this case was undoubtedly "for use" in the factory. It is true that later in his speech Lord Normand used various forms of expression—"machinery used for production", "machinery used in the process of production" and "machinery which is part of the factory and used in the manufacturing processes". But he meant the same thing throughout. "Used" could mean (i) used at the time of the accident, or (ii) which has been used in the process of production but is not being so used at the time of the accident, or (iii) which is intended to be so used in future, or all three. Lord Normand cannot have meant to exclude both (ii) and (iii) for that would be going back to the repealed 1878 Act. As between (ii) and (iii) I can see no virtue in the machine having been used in the past if it is not in use at the time of the accident, and nothing said by Lord Normand suggests any such distinction. He had no need to consider the question in the present case and there is no indication that he had it in mind: but at least when he was formulating the question he had to consider he used language wide enough to cover the present case—"machinery for use m the factory". So I do not think that Parvin's case helps the Respondents.
This machine had been completely installed as part of the factory equipment before the accident. I am...
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