John Summers & Sons Ltd v Frost
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SOMERVELL,LORD JUSTICE BIRKETT,LORD JUSTICE MORRIS |
| Judgment Date | 19 March 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0319-6 |
| Court | Court of Appeal |
| Date | 19 March 1954 |
[1954] EWCA Civ J0319-6
In the Supreme Court of Judicature
Court of Appeal
Lord Justice Somervell
Lord Justice Birkett
Lord Justice Morris.
MR. MARVEN EVERETT, Q.C., and MR. R. H. GERAINT REES(instructed by Mr. W. H. Thompson) appeared as Counsel on behalf of the Appellant (Plaintiff).
MR. R. H. FORREST, Q.C., and MR. NORMAN RICHARDS (instructed by Messrs. Carpenters, agents for Messrs. Laces, Liverpool) appeared as Counsel on "behalf of the Respondents (Defendants)
This is a claim for damages for personal injury "based on an alleged breach by the Defendants of Section 14 (1) of the Factories Act 1937, which is as follows: "Every dangerous part of any machinery, other than prime movers and transmission machinery, shall be securely fenced unless it is in such a position or of such construction as to be as safe toevery person employed or working on the premises as it would "be if securely fenced: Provided that, in so far as the safety of a dangerous part of any machinery cannot "by reason of the nature of the operation be secured "by means of a fixed guard, the requirements of this sub-section shall be deemed to have been complied with if a device is provided which automatically prevents the operator from coming into contact with that part". The learned Judge dismissed the claim.
The Plaintiff is a fitter who has been employed for some years by the Defendants. In the Defendants' factory were two circular grindstones of which we have photographs, at one of which the accident happened. In front of each grindstone is a stand on which is a flat bottomed basin. Prom the floor of the basin there rises a rest which overlaps the wheel. Above the rest the wheel is exposed for about six or seven inches so that it can be used for grinding. Above the exposed part there is a hood which is continued over the top and round the back of the stone. The stones were driven by power at about 1,450 revolutions a minute.
The Plaintiff was grinding the ends of a piece of metal about four inches long, known as a key. Counsel agreed that the Plaintiff demonstrated he was holding the key near the top. He placed it he said on the tool rest took the pressure with an upward movement, and added the pressure to grind. "The instand I added the pressure, the key flicked forward to the stone with my thumb in between, towards the stone itself causing a crushing effect which caused me to snatch my thumb out". This is very difficult to follow. Many allegations were made by the Plaintiff. It was said the wheel was running out of the true; that there was an excussive and dangerous gap between the rest and the wheel and that the lighting was insufficient. On all these points the Plaintiff failed on the learned Judge's findings of fact and there is no appeal on these points. There remains the submission thatthere was a "breach of Section 14 which caused the accident.
I will read the learned Judge's conclusions. "If the machinery is dangerous, it has got to "be fenced or guarded properly. I have no doubt that the machinery should "be regarded as dangerous: in other words, that this was a dangerous part of the machine, and every dangerous part of any machinery, according to the Section, should "be securely fenced; therefore, this should have been securely fenced. The question is: was it securely fenced? I think, judging by the evidence I have heard, I must come to the conclusion that it was securely fenced. Of course, it could be completely covered up so that no one could get anywhere near it, then it would be even more securely fenced, but then it would be no use as a machine. It has this guard at the top and it has the rest at the bottom, which is in the nature of a guard, leaving a comparatively small part of it exposed, and Mr. Martin was of the opinion that it was not dangerous in that state. He said, as I have already observed, that he had no criticism to make of it and that it was in accordance with modern practice. I think he was quite satisfied that it was safe to use in that state. He did not suggest any further guarding or fencing was necessary. The Plaintiff himself, a practical person, seems to have taken the same view. He said that the guard had nothing to do with ins accident. I understood him to say that it was not the absence or deficiency in any guard that caused the accident. Therefore, in those circumstances, it seems to me that the correct conclusion is that the machinery, if not properly guarded would be dangerous, but that it was properly guarded by the guard at the top and by the rest at the bottom. In these circumstances I hold that there is no breach of Section 14".
It is clear that when the learned Judge finds that the machinery should be regarded as dangerous he is speaking of the rotating wheel as a whole. "Fenced" as it is by the "rest" and the hood the remaining exposed part is not, he finds, "dangerous" within the Section, The first questions is whetherthis is consistent with the authorities as to the meaning of dangerous in this context. If it is not then the result would or might be that the grindstone must "be fenced so that it could not he used. It has "been held "by this Court that Section 14 can lead to this result (Miller v. William Boothman & Sons Ltd., reported in 1944 1 King's Bench at page 337). It seems surprising if the Legislature has made it a criminal offence to use a grindstone. In Walker v. Bletchley Flettons, reported in 1937 1 All England Reports, page 170, Mr. Justice du Parcq, as he then was, had to consider the meaning of "dangerous" in a similar context in the Act of 1901. He cited two observations by Mr. justice Wills in Hindle v. Birtwistle, reported in 1897 1 Queen's Bench, page 192, dealing with a similar provision in the Act of 1878. "In considering whether machinery is dangerous, the contingency of carelessness on the part of the workman in charge of it, and the frequency with which that contingency is likely to arise are matters that must be taken into consideration. It seems to me that machinery or parts of machinery is and are dangerous if in the ordinary course of human affairs danger may be reasonably anticipated from the use of them without protection". The learned Judge put a gloss on that which, With respect, I do not think adds anything to what Mr. Justice Wills said, if the two citations are taken together, I would add a third from the same Judgment, "No doubt it would be impossible to say that because an accident had happened once therefore the machinery was dangerous",
I therefore turn to the evidence. The Plaintiff agreed that this was the ordinary type of grindstone, though he said that in his last factory the exposed gap was somewhat smaller. That would not have affected this accident. The Plaintiff's case, as I have said, was that the gap was too wide, about half-an-inch instead of, say, 3/16ths of an inch. Mr. Alexander, a fitter employed by the Defendants called by the Plaintiff, thought the machine was quite safe if the rest was close up to the rim. Mr. Martin, a consultant engineer, the plaintiff's expert, had, asthe learned Judge said, no complaint of the machine if properly adjusted. It was a perfectly normal machine. There was no evidence or suggestion that this machine had caused accidents before. Of course, a wheel revolving at this rate is likely to cause damage if a finger or hand is placed upon it. In the same way, a lorry on the road will cause injury if a man steps out suddenly in front of it. Many, perhaps most machines at which men work, are capable of injuring a finger or a hand. In the present case, the Plaintiff was grinding a smaller piece of metal than is usual. He could have used other appliances. He held it high up and on the Judge's findings it seems to me clear that he had a lapse or did something which I do not think was, on the evidence, reasonably to be anticipated. prima facie whether a part of machinery is dangerous was a question of fact for the learned trial Judge and I agree with his conclusion,; basing myself on the tests laid down by Mr. Justice Wills. The second point does not, therefore, arise. Although we are bound by Miller's case I feel considerable difficulty about it, and, of course, the difficulty increases as the standard of what is dangerous becomes more—if I may so put it—automatic.) Parliament cannot have intended to prohibit the use of rotating grindstones. If the purpose had been to prohibit by statute the use altogether of certain types of machine the wards of Section I-are a very curious approach. They assume the machine is there in situ, but it is to be permanently caged. As, however, we are precluded from reconsidering previous decisions of this Court it is unnecessary to pursue the matter further. In Lewis v. Denye (1940 Appeal Cases, page 921) the House of Lords expressly reserved the point and I hope it may have an opportunity of deciding it.
I would therefore dismiss the appeal. My brethren take a different view and the Order will be in accordance with their decision,
The Appellant in this case injured the thumb of his right hand when grinding a piece of metal called a "key"on a grindstone which was operated by power. He was a Maintenance Fitter employed "by the Respondents, John Summers & Sons Limited at their factory at Hawarden Bridge Steel Works near Chester, and at the date of the accident, the 27th November, 1951, he had been employed by the Respondents for two years. He was an experienced man, having been a qualified fitter for 25 years. The grindstone on which he was working at the time of the accident is shown in the two photographs which were before us. It consisted of the grindstone itself, the spindle which ran through its centre to allow the power to be applied to rotate the grindstone, the adaptable tool rest on which the metal to be ground is...
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