Johnson v F E Callow (Engineers;) Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Hodson,Lord Chancellor,Viscount Dilhorne,Lord Donovan |
| Judgment Date | 21 October 1970 |
| Judgment citation (vLex) | [1970] UKHL J1021-2 |
| Date | 21 October 1970 |
| Court | House of Lords |
[1970] UKHL J1021-2
Lord Chancellor
Lord Hodson
Viscount Dilhorne
Lord Donovan
Lord Gardiner
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause F. E. Callow (Engineers) Limited against Johnson, that the Committee had heard Counsel, as well on Monday the 27th as on Tuesday the 28th, days of July last, upon the Petition and Appeal of F. E. Callow (Engineers) Limited, whose registered office is situate at Manchester Road, Clifton, near Manchester, in the County of Lancaster, 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 24th of October 1969, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and 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 Case of James Johnson, 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 24th day of October 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 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,
This appeal is another example of litigation arising from section 14 of the Factories Act 1961.
Section 14 forms part of a group of five sections (sections 12-16) which deal with the liability of an employer in a factory to fence parts of the machinery for the protection of their employees. These sections are clearly intended to form, as it were, a single code and should be read together. Section 12 deals with prime movers. Section 13 deals with transmission machinery. Section 14 deals with dangerous parts of machinery, other than prime movers and transition machinery.
The obligation cast on the employer is not unqualified, and section 15 deals with the operation of machinery which, under the exceptions to the preceding sections, is unfenced. Section 16 deals with the construction and maintenance of fences in cases where the duty to fence applies under the preceding section. It provides (in language which may be material to this appeal) that the fences are to be kept in position while the parts required to be fenced are "in motion or in use", thereby implying that there may be cases in which the parts are in motion but not in use and equally cases in which the parts required to be fenced are in use but not in motion.
At first sight the code provided by this group of five sections is deceptively simple. In point of fact, however, its provisions, especially those of section 14 which are now under discussion, have given rise to a considerable degree of difference of opinion. In some ways the duty cast on employers has seemed at times unduly harsh. In others the protection afforded to the worker has seemed illusory and unreal.
The sanction behind the sections imposed by the Act is primarily penal and this is the only sanction contained expressly in the Act. But for many years a breach of the provisions of the code has been held to give rise to a civil action for damages for personal injury at the suit of the injured workman. As a matter of social policy the necessity for this connection between the judicially recognised remedy and the statutory offence is not logically plain. For, while it might appear to be reasonable and even self evident that if an employer is guilty of an offence against the code any workman injured thereby should be entitled to damages for the breach, the converse is by no means so obvious; it is not so plain that in the absence of negligence the only correct basis for the compensation by an employer of his workman injured or killed by dangerous machinery is his commission of a criminal offence. It is clearly the law now. But it is not self evident that it should be so.
But while the policy of the Act is well established some of the protection to the workman which at first sight might be thought available turns out on closer scrutiny to be illusory. Thus: (1) Since it is only parts of the machinery which have to be fenced there is no obligation to fence a machine under section 14 if it is dangerous as a whole but without having dangerous parts (cf. Liptrot v. British Railways Board [1969] 1 A. C. 136 per Lord Reid at 159); (2) It is now established that under section 14 what is referred to as a part of the machinery does not include a workpiece moving under power and held in the machinery by a chuck. Nor does it include other material in the machine as distinct from parts of the machinery (see for instance Eaves v. Morris Motors Ltd. [1961] 2 Q.B. 385, Bullock v. G. John Power (Agencies) Ltd. [1956] 1 W.L.R. 171); (3) The dangers against which the fencing is required do not include dangers to be apprehended from the ejection of flying material from the machine whether this is part of the material used in the machine (see Nicholls v. F. Austin (Leyton) Ltd. [1946] A.C. 493) or whether it is part of the machine itself (see Close v. The Steel Company of Wales Ltd. [1962] A.C. 367); (4) The workman is not ordinarily protected if what comes into contact with the dangerous part of a machine is a hand tool operated by the workman as distinct from the workman's body or his clothes (see Sparrow v. Fairey Aviation Ltd. [1964] A.C. 1019) nor if the danger created arises because of the proximity of moving machinery to some stationary object extraneous to the machine ( Pearce v. Stanley-Bridges Ltd. [1965] 1 W.L.R. 931 C.A.).
In these circumstances it is not surprising that arguments about the protection afforded by section 14 of the Factories Act were described by Holroyd Pearce L.J. as "technical" and "artificial" and the protection itself as "in some respects illusory" (see Eaves v. Morris (supra) at page 396). It is equally not surprising that the decisions in Nicholls v. F. Austin (Leyton) Ltd. and Close v. The Steel Company of Wales Ltd. (supra) were strongly criticised by Lord MacDermott, Lord Reid in Sparrow v. Fairey Aviation Ltd. [1964] A.C. 1019 in spite of the fact that Lord Reid regarded himself as bound by the decisions he criticised, It has been pointed out more than once that the position would be ameliorated by the use by the Minister of his regulatory powers under section 14(6) of the Act of 1961 (for this purpose equivalent to section 14(3) of its predecessor of 1937). But no use has so far been made of this power, not, I apprehend, through inadvertence, but as a matter of departmental policy. No one contemplating the situation set up by this series of decisions can wholly avoid the conclusion reached by Lord Justice Holroyd Pearce in the passage cited above that the gap in the protection afforded by the statute is one "which neither logic nor common sense appears to justify". It is however too late for the courts to close the gap. The gap can only be closed by legislation or to some extent by the use of the regulatory powers of the Ministers. It has however to be said that I for one would be slow to enlarge the gap or to extend the ambit of the criticised decisions beyond the limits required by the facts of the cases concerned and the reasoning of the judgments in them.
The present proceedings arise out of a claim for damages for personal injuries brought by the Respondent against his employers, who occupy a factory at Skelmersdale, Lancashire, as the result of an accident which took place on the 11th June 1964. The Respondent was operating a centre lathe of a fairly common design and machining a stainless steel casting when he lost the middle, ring and little fingers of his right hand and suffered other injuries to the index finger as the result of their being caught and mangled between a rotating workpiece and an almost imperceptibly moving tool bar which was part of the machine. The damages on the basis of full liability were agreed at £6,000. Lyell J. dismissed the Respondent's claim. From this judgment the Respondent appealed. The appeal was allowed by the Court of Appeal who substituted a judgment for the Respondent of £4,000 on the basis that the Respondent contributed to the accident by his own negligence to the extent of one-third. At the hearing of the action the Respondent abandoned all his claims at common law for reasons which, even after the frank explanation of counsel, I confess I find difficult to understand and the only surviving cause of action before your Lordships' House (as before the Court of Appeal) is that which arises under section 14 of the Factories Act 1961. In support of this claim two witnesses were called at the trial by the Respondent, namely the Respondent himself and an expert on his behalf and one by the Appellants, a Mr. Pobgee, who had since been promoted to assistant manager but who at the time of the accident appears to have been the foreman in charge of the group of machines at one of which the Respondent was working. Mr. Pobgee did not witness the accident. In addition to the oral testimony there were three photographs produced on behalf of the Respondent and one photograph produced on behalf of the Appellants. On this rather meagre evidence it fell to Lyell J. to decide the case, and it now falls to us to decide this appeal.
At the time of the accident the lathe on which the Respondent was working was...
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