John Summers & Sons Ltd v Frost
| Jurisdiction | England & Wales |
| Judge | Viscount Simonds,Lord Oaksey,Lord Morton of Henryton,Lord Reid,Lord Keith of Avonholm |
| Judgment Date | 24 March 1955 |
| Judgment citation (vLex) | [1955] UKHL J0324-2 |
| Date | 24 March 1955 |
| Court | House of Lords |
[1955] UKHL J0324-2
House of Lords
Viscount Simonds
Lord Oaksey
Lord Morton of Henryton
Lord Reid
Lord Keith of Avonholm
Upon Report from the Appellate Committee, to whom was referred the Cause John Summers and Sons Limited against Frost, that the Committee had heard Counsel, as well on Thursday the 10th, as on Monday the 14th, Tuesday the 15th and Wednesday the 16th, days of February last, upon the Petition and Appeal of John Summers and Sons Limited, of Hawarden Bridge Steelworks, Shotton, in the County of Chester, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 19th of March 1954, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners 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 printed Case of Albert Harold Frost, 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, of the 19th day of March 1954, 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 Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
I have had the privilege of reading the Opinion which my noble and learned friend, Lord Reid, will deliver and am so fully in agreement with it that I propose to make only a few short observations myself. I have come with reluctance to the conclusion that this appeal must be dismissed, for I cannot fail to be impressed by the inconvenience of a decision which may for the time being make it impossible to work a machine which has for long been in popular use without (so far as is known) any adverse report by H.M. Inspectors of Factories or any administrative measure designed to safeguard its use. Fortunately, as I shall indicate, the matter can be remedied and, as the judgment of the Court of Appeal which is to be affirmed was delivered a year ago, it may be assumed that the necessary steps are already in contemplation.
My Lords, section 14 of the Factories Act, 1937, and its predecessor, section 10 of the Factories Act, 1901, have on many occasions been discussed in the Courts and I think that their true construction is not in doubt. In particular I think it is clear that the obligation imposed by the section to fence securely every dangerous part of any machinery, except as in the section mentioned and subject to its proviso, is an absolute obligation. And by that I mean that it is not to be qualified by such words as so far as "practicable" or "so long as it can be fenced consistently with its being used for the purpose for which it was intended" or similar words. I come to this conclusion for the following reasons which will be elaborated by my noble and learned friend.
First, it appears to me to be an illegitimate method of interpretation of a statute, whose dominant purpose is to protect the workman, to introduce by implication words of which the effect must be to reduce that protection.
Secondly, where it has been thought desirable to introduce such qualifying words, the Legislature has found no difficulty in doing so. This can be found both in other statutes, of which I need give only one out of many possible examples, viz. 60 and 61 Vic. C. 60, which in providing for the fencing of chaff cutting machines uses the words "so far as is reasonably practicable and consistent with the due and efficient working of the machine" and also in other sections of the statute now under consideration. For instance, in different forms qualifying words are to be found in sections 18, 19, and 22 and no doubt in many other sections.
Thirdly, it was decided as long ago as 1919 in Davies v. Thomas Owen & Co. Ltd. [1919] 2 K.B. 39) that the obligation imposed by the comparable section 10 of the Factories Act, 1901, was absolute and that, if the result of a machine being securely fenced was that it would not remain commercially practicable or mechanically possible, that did not affect the obligation: the statute would in effect prohibit its use. This had been for 17 years the unchallenged law when the Act of 1937 was passed, and that Act by section 14 substantially repeated the former section. It would be contrary to well established principles of construction to give a different meaning to the new section. See Barras v. Aberdeen Steam Trawling and Fishing Company, Ltd. [1933] A.C. 402.
Fourthly, the proviso to section 14 (1) affords a strong indication that the substantive part of it imposes an absolute obligation: for, unless its effect is absolutely to prevent the operator from coming into contact with a dangerous part of the machine, there would be little meaning in the provision of an alternative which has just that effect.
Fifthly, the absolute obligation imposed by section 14 (1) is subject to the regulation-making power of the Minister under section 60. I do not think it necessary to decide whether the Act of 1901 contained a similar power. But in my opinion it is clear that section 60 of the 1937 Act enables the Minister by special regulation to modify the absolute obligation of section 14 in regard to such classes or descriptions of factory as he thinks fit. Reading the section as a whole I do not regard the words "subject to the provisions of this Act" as qualifying the power of modification but rather as looking forward to section 129. There is thus a consistency in the Act—first a provision for the safety of the workman which is absolute, and secondly a recognition that such a provision may render a particular industrial process practically impossible, and therefore a power in the Minister, if he thinks fit and subject always to the power of Parliament to annul the regulation, to relax the rigour of the absolute obligation.
For these reasons I think that the obligation to "securely fence" the machinery here in question is unambiguously absolute and will remain absolute unless and until the Minister makes appropriate regulations.
The next question is what is the test or standard of secure fencing. I agree with my learned and noble friend, Lord Reid, that, since the danger to be guarded against is contact with the exposed part of the grindstone while it is in motion, that fencing is secure which effectively protects the workman from that danger. By "workman" in this context I mean not only the actual operator but also any other person employed on the premises. Your Lordships have been referred to a number of formulae and I do not wish to add to their number. It is elementary that it is necessary to consider not only the risk run by a skilled and careful man who never relaxes his vigilance. An observation of the late Lord du Parcq in Walker v. Bletchley Flettons, Ltd. [1937] 1 A.E.R 170 to the effect that a machine is dangerous "if it is a possible cause of injury to anybody acting in a way in which a human being may be reasonably expected to act in circumstances which may reasonably be expected to occur" has been sometimes mentioned with approval, and I think that it gives as precise a direction as can be hoped for if it is read in conjunction with what Lord Cooper said in Mitchell v. N. British Rubber Coy. Ld., 1945, J.C. 69, viz. that a machine is dangerous if "in the ordinary course of human affairs danger may reasonably be anticipated from its use unfenced, not only to the prudent, alert and the skilled operative intent upon his task, but also to the careless or inattentive worker whose inadvertent or indolent conduct may expose him to risk of injury or death from the unguarded part." So long as this element of danger exists the machine is not securely fenced.
But whatever test is adopted, there will be borderline cases and it is sufficient for this case for me to say that I can think of no standard of security which would justify the employers in leaving the rotating grindstone unfenced to the degree to which it was exposed in this case.
There remains this question. The employers being guilty of a breach of statutory duty and the workman having suffered damage which was assessed by the learned Judge at £261 6s., was he guilty of contributory negligence and, if so. should there be any and what apportionment of the damage? The learned Judge came to the conclusion that "there really was nothing wrong with this machine; that it was a perfectly safe machine to use, guarded as it was with a guard above and the rest below, if a person used it in the proper way … and that the real cause of the accident was, unfortunately, the Plaintiff's own negligence." The learned Judge saw the witnesses and the accident was illustrated to him and his opinion must be weighty. But in the Court of Appeal Lord Justice Birkett thought that the plaintiff was not doing anything wrong or stupid or forbidden in using the grindstone and Lord Justice Morris said that he was not acting in a deliberately foolhardy way and concluded that, while some measure of criticism could forcibly be suggested, any deficiencies or failures on the plaintiff's part fell far short of negligent conduct. Having carefully read all the evidence I think that the learned Lords Justices were well justified in drawing these inferences and I agree with them. No question therefore of apportionment of...
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