Jenkins v Allied Ironfounders Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Hodson,Lord Guest,Viscount Dilhorne,Lord Upjohn |
| Judgment Date | 27 November 1969 |
| Judgment citation (vLex) | [1969] UKHL J1127-2 |
| Court | House of Lords |
| Docket Number | No. 4. |
| Date | 27 November 1969 |
[1969] UKHL J1127-2
House of Lords
Lord Reid
Lord Hodson
Lord Guest
Viscount Dilhorne
Lord Upjohn
Upon Report from the Appellate Committee, to whom was referred the Cause Jenkins (A.P.) against Allied Ironfounders Limited, that the Committee had heard Counsel, as well on Tuesday the 14th as on Wednesday the 15th, days of October last, upon the Petition and Appeal of Thomas Stewart Jenkins (Assisted Person), residing at 219 Carmuirs Avenue, Camelon, Falkirk, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland of the First Division of the 30th of March 1969, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Interlocutor 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 Allied Ironfounders 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 Interlocutor of the 30th day of March 1969, 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 Appellant do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the parties entitled to the same within one calendar month from the date of the Certificate thereof, the Cause shall be, and the same is hereby, remitted back to the Court of Session in Scotland, or to the Judge acting as Vacation Judge, to issue such Summary Process or Diligence for the recovery of such Costs as shall be lawful and necessary.
My Lords,
The Appellant sustained rather severe injuries while employed as a labourer in the Respondents' Foundry at Falkirk. It was the practice to take castings from the moulding boxes and convey them to an area on the floor where they were dumped in a heap. These castings still contained sand cores and had "gates" attached which might be a foot long. A little more metal is poured in to the moulding box than necessary for the casting itself and the surplus forms the gate. It is fairly easily knocked off and sometimes the gate becomes detached when a casting is dumped in this heap. When the accident happened the Appellant and another man were carrying castings from this heap with a view to knocking out the cores and removing the gates. Some of the castings weighed 100 lbs. or more and had to be carried by two men. In moving one of these castings the Appellant held one end and walked backwards while the other man held the other end and walked forwards. He had only gone a few feet when his heel caught an obstruction and he fell and sustained injury.
The floor at that point is covered with several inches of sand and it is fairly clear what had happened. When one of these castings was dumped the gate must have broken off and become embedded in the sand below it. When the castings on top of it were removed it was not visible or, at least, not noticed, and then when another casting farther into the heap was being removed the Appellant's heel was caught by it. The accident could only have been avoided if steps had been taken to discover and remove the gate after it had become uncovered and before the Appellant tripped over it.
The Appellant's case at common law failed but he succeeded before the Lord Ordinary on the ground that there had been a breach of section 28 (1) of the Factories Act, 1961. That subsection provides:
"All floors, steps, stairs, passages and gangways shall be of sound construction and properly maintained and shall, so far as is reasonably practicable, be kept free from any obstruction and from any substance likely to cause persons to slip."
The Appellant maintains that the gate on which he tripped was an obstruction within the meaning of this subsection, that the onus was on the Respondents to prove that it was not reasonably practicable to remove it before the accident and that they have failed to discharge that onus. The Respondents maintain that this gate was not an obstruction within the meaning of this subsection, and that, if it was, the onus was on the Appellant to prove that it was reasonably practicable to remove it and that he had failed to discharge that onus.
The first question is whether this gate was an "obstruction". It is quite true that this word must be given a limited meaning. It is clearly not intended to include easily visible objects properly put on the floor in the course of a proper system of work. So it would not include the heap of castings. The Respondents say that the gate forming part of the casting was also properly put on the floor and so could not be an obstruction when put there. So far I agree: it was no obstruction so long as it was covered by castings. But I see no good reason why it should not become an obstruction when the castings covering it were removed. Suppose it is left there for a long time after all the castings have been removed. Could it possibly be said that even after being left on the sand uncovered for a long time it had not become an obstruction? I do not think so. So when does it become an obstruction? I can see no reasonable alternative to holding that it becomes an obstruction within the meaning of the Act as soon as it is uncovered and becomes an "obstruction" within the ordinary meaning of that word. Its character has changed when the castings which covered it have been removed: it was no obstruction before that because then only the castings could be an obstruction, but when those castings were removed it came within the mischief which the section is designed to prevent. It was an object whose presence on the floor might cause an accident and whose presence there served no useful purpose. So I am of opinion that this gate was an obstruction within the meaning of the section.
I can now turn to the question whether it was reasonably practicable to remove this obstruction before the accident. Much was said in the Court of Session about the onus of proof but I do not think it is necessary to deal with that matter in this case. We must consider the evidence as we find it and after the evidence has been led it is only in very rare cases that onus of proof is material.
The only ways in which the floor could have been kept free from this obstruction were by preventing the gate from being left in the sand when the casting from which it broke off was removed—a matter I shall deal with later—or by removing it between the time when it was uncovered by removal of the castings on top of it, and the time when the accident happened. This interval was short: certainly less than an hour, and perhaps only a few minutes. The Respondents' system was for the men engaged in moving the castings from the heap to put on one side any gates or other obstructive material which they saw and then for cleaners to clean up the site of the heap after all the castings had been moved. The Appellant and the man working with him did not see this gate, no doubt because it was to a large extent buried in the sand: it is not suggested that they were negligent. And the time for the cleaners to clean up the site had not yet arrived: they would, or at least should, have found it and removed it in the course of their operation if the accident had not happened when it did.
The only way in which it is suggested that this gate could have been detected and removed before the accident would have been to have a man with a rake who, as soon as each casting was removed from the heap, would go over the sand on which it had rested to see that no obstruction was left after it had been removed. The question is whether that would have been reasonably practicable. It would certainly have been possible but that is not the test.
There are in Marshall v. Gotham Co. Ltd. [1954] A.C. 360 references to authorities and expressions of opinion as to the meaning of the expression "reasonably practicable". I do not think it necessary to add to them. On the one side, we must put any expense, delays or other disadvantages involved in adopting the preventive system and, on the other, the nature and extent of the risks involved if that system was not adopted. Here the evidence is scanty but it is not difficult to draw inferences from the whole circumstances. The pursuer did not expect any such system to be adopted and a foreman did not approve of it. It is reasonably clear that its adoption would have cost appreciable expense and probably some delays or dislocation in the ordinary work of moving the castings. On the other hand, men with long practical experience had never heard of an accident resembling this one, and I think that a careful employer, if he had thought about the matter before the accident, would have regarded the chance of such an accident as no more than a remote possibility, and the chance of serious injury, if such an accident did occur, as not very great. If there had appeared to be any substantial chance of such an accident then the preventive system ought to have been adopted but in the circumstances disclosed by the evidence I do not think that, in light of the authorities, it would have been reasonably practicable to have a system which would have led to the removal of this gate before the accident.
Finally, I must consider the argument...
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