Jenkins v Allied Ironfounders Ltd
| Jurisdiction | Scotland |
| Judgment Date | 30 January 1969 |
| Docket Number | No. 14. |
| Date | 30 January 1969 |
| Court | Court of Session (Inner House - First Division) |
1ST DIVISION.
Lord Hunter.
NegligenceMaster and ServantBreach of statutory dutyFactoryDuty to keep floors free from any obstruction so far as reasonably practicable"Obstruction"Averment by pursuer that it was reasonably practicable by two specified methods to keep floor free from obstructionsFailure to prove avermentFactories Act, 1961 (9 and 10 Eliz. II, cap. 34), sec. 28 (1).
EvidenceOnus of proofOnus imposed by statute on defenders but assumed by pursuer in pleadingsPursuer's failure to discharge onus.
The Factories Act, 1961, enacts by sec. 28:"(1) All floors shall, so far as is reasonably practicable, be kept free from any obstruction "
A workman was engaged in removing castings lying in a pile and partially covered by sand which had fallen from them. While carrying a casting over a part of the sand from which the castings had been removed he tripped on a piece of metal broken from a casting and was injured. In an action against his employers he maintained that his injury was due to their failure to keep the floor free from obstructions, in breach of sec. 28 (1), and averred that it was reasonably practicable for them to do so by two methods, which he specified.
Held (1) that the piece of metal constituted an "obstruction" within the meaning of sec. 28 (1); but (2) (rev. judgment of Lord Hunter, diss. Lord Cameron) that, although sec. 28 (1) imposed on the defenders the onus of proving that it was not reasonably practicable to keep the floor free from obstructions, the pursuer had by his averments assumed the onus of proving that it was reasonably practicable to do so, and that he had failed to discharge that onus; and the defenders assoilzied.
Hall v. Fairfield Shipbuilding and Engineering Co.,1964 S.C. (H.L.) 72, followed.
Nimmo v. Alexander Cowan & Sons, 1967 S.C. (H.L.) 79, distinguished.
Thomas Stewart Jenkins brought an action of damages for personal injuries against his employers, Allied Ironfounders Limited.
The following narrative of the facts is taken from the opinion of the Lord President:"The pursuer was working as a labourer at the defenders' foundry. Part of his duties at the time of the accident consisted in helping two other labourers, Dowell and Bow, in decoring castings in the moulding shop. The whole operation involved three stages. First of all, the castings with the core sand adhering to them were removed from the moulding boxes while still hot, loaded into an iron barrow and wheeled up to the end of the row of moulding boxes, where they were emptied out into heaps of some 40 or 50 castings. The second stage took place the following morning, when the moulds were cold. It consisted in the labourers' moving the castings one by one from the pile to make a second pile a few yards away, where they rapped out or decored the castings and piled them up ready for removal in a bogie to another part of the premises. This final removal in a bogie is the third stage in the operation. The castings usually had "gates" or "fins" attached to them in the form of excrescences of scrap formed in the course of the moulding process. If these had not come off at the moulding boxes or when the casting was emptied on to the first pile, they were knocked off at the second pile. These gates were ultimately collected and remelted for use in subsequent moulds.
"This case is concerned with the second stage of the operation,i.e. when the castings were being removed from the first pile to the second pile. The work had proceeded for some time and the three labourers had substantially reduced the area of the first pile. In the course of lifting a casting from the first pile and conveying it to the second the pursuer lifted it at one end and another labourer lifted it at the other. The pursuer was walking backwards and, after he had moved back along the floor some two or three feet, he caught his heel on a piece of scrap lying on the floor which was hidden in the sand on the surface of that part of the moulding shop, lost his balance, and sustained injuries to his back."
In condescendence 3 the pursuer set forth his grounds of fault at common law, with which this report is not concerned. The parties further averred:(Ans. 3) "Admitted that certain duties were incumbent on the defenders. Quoad ultra denied. Explained and averred that the defenders performed all duties incumbent on them in the circumstances. The sand on the floor of said shop was gone over daily by men using graips known as rough-wheelers, and the sand was also rotavated daily. In addition it was part of the pursuer's duty in the course of his work in said shop to pick up pieces of metal, such as gates, which were lying about and to place them in piles The defenders also employed two cleaners, whose duty it was to sweep up surplus sand, rubbish and paper. In view of the nature of the work in said shop it was impossible for the defenders to ensure that no pieces of metal were left lying on the floor concealed in the sand.Esto the pursuer sustained injury in the manner averred by him, the accident was wholly caused, or in any event materially contributed to, by his own fault. It was his duty to take reasonable care for his own safety, to look where he was going and not to trip over objects lying on the floor. In addition it was his duty to pick up pieces of metal which were lying about and, particularly if he was going to be walking backwards carrying a casting, to pick up any such pieces which were lying in his path. In these duties he failed and so caused said accident. He did not take reasonable care for his own safety. He did not look where he was going. He did not pick up said gate before tripping over it. But for said failure in duty said accident would not have happened." (Cond. 4) "Further and in any event said accident was caused by the breach of statutory duty incumbent on the defenders. The defenders' said premises were a factory within the meaning of the Factories Act, 1961. It was the defenders' duty to comply with section 28 (1) thereof, which provides, inter alia, that all floors shall, so far as is reasonably practicable, be kept free from any obstruction. The said gate on which the pursuer tripped was an obstruction on said floor. It was reasonably practicable for the defenders to keep the floor free of such obstruction by issuing and enforcing instructions that such scrap was not to be deposited on the floor and by removing any scrap that came on the floor by regular raking. It was the defenders' duty to keep the floor free of said obstruction. In this duty they failed and so caused the said accident. The defenders' averments so far as not coinciding herewith are denied." (Ans. 4) "Admitted that the defenders' said premises were a factory within the meaning of said Act. Quoad ultra denied. Reference is made to the preceding Answer. The pursuer is called upon to specify to whom he alleges that instructions should have been issued which were not issued and which would have prevented his alleged accident. He is also called upon to state how often he alleges the floor should have been raked. His failure to answer these calls will be founded upon."
The pursuer pleaded, inter alia:"(1) The pursuer, having sustained loss, injury and damage through the fault and negligence of the defenders as condescended on, is entitled to reparation therefor."
The defenders pleaded, inter alia:"(1) The pursuer's averments being irrelevant, et separatim being lacking in specification, the action should be dismissed. (2) The pursuer's averments, so far as material, being unfounded in fact, the defenders should be assoilzied. (3) The pursuer not having suffered loss, injury or damage through fault on the part of the defenders, they should be assoilzied. (4) Separatim, the pursuer's injuries having been wholly caused by his own fault, the defenders should be assoilzied. (5) Separatim, the pursuer's injuries having been at least partly caused by his own fault, any damages awarded should be reduced in terms of the Law Reform (Contributory Negligence) Act, 1945."
On 27th June 1968, after a proof before answer, the Lord Ordinary (Hunter) sustained the first plea in law for the pursuer, repelled the first five pleas for the defenders, and awarded damages.
At advising on 30th January 1969,
LORD PRESIDENT (Clyde).This is an action for damages arising out of an injury which the pursuer sustained while at work and for which he maintains that his employers, the defenders, are responsible. His action is based upon negligence at common law and alternatively on breach of section 28 (1) of the Factories Act, 1961.7 After sundry procedure a proof before answer was allowed, and, after the proof had taken place, the Lord Ordinary reached the conclusion that the pursuer's case at common law failed, but he decided that a breach of section 28 (1) had been established and he awarded a sum of damages to the pursuer on the ground that this breach had caused the accident and consequent injury. The defenders have presented this reclaiming motion and argued to us that the Lord Ordinary's conclusion that a breach of section 28 (1) took place is unsound and that the defenders should be assoilzedi.
Before us it was not maintained that the Lord Ordinary was in error in holding that the pursuer's common law case had failed, and the sole dispute was confined to the statutory case. The ultimate issue in regard to this part of the case falls into a narrow compass, and in order to focus
that dispute I shall first of all set out the circumstances in which the accident took place[His Lordship gave the narrative quoted supra, quoted section 28 (1), and continued]Although the first part of this subsection is framed in absolute terms, the second part (with which alone this case is concerned) is framed in less absolute terms. The two questions which arise in this case are, firstly, whether the piece of scrap on which the pursuer caught his...
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