Keenan v Rolls Royce Ltd
| Jurisdiction | Scotland |
| Judgment Date | 15 July 1969 |
| Date | 15 July 1969 |
| Docket Number | No. 25. |
| Court | Court of Session (Inner House - First Division) |
1st Division.
Lord Leechman.
NegligenceMaster and ServantBreach of statutory dutySafe working placeStandard of safetyNegligent method of working by injured workmanAccident reasonably foreseeableFactories Act, 1961 (9 and 10 Eliz. II, cap. 34), sec. 29 (1).
NegligenceRecordSpecificationSufficiency of averments in relation to case established in evidenceMaster and ServantProcess.
ReparationRelation of fault to injuryProximate cause of injuryWorkman negligently losing balance on platformNo guard-railConsequent fall from platform and injury due to employer's fault.
The Factories Act, 1961, enacts by sec. 29 (1), inter alia,that every place at which any person has at any time to work "shall, so far as is reasonably practicable, be made and kept safe for any person working there."
A skilled plumber was instructed to unscrew a steel pipe sixteen feet above the floor of a factory. He erected a platform eleven feet above the floor, but was unable to procure materials to provide it with a guard-rail. While standing on the platform trying to unscrew the pipe, he lost his balance, fell to the floor and was injured.
In an action of damages against his employers based on their breach of sec. 29 (1), in respect that the platform had no guardrail, he averred that the pipe "suddenly turned" as he was trying to unscrew it with a wrench, and he denied an averment by the defenders that he had negligently applied the wrench the wrong way round, so that it slipped when pressure was applied. The evidence established that he did apply the wrench the wrong way round, with the result that it slipped off the pipe. It was also established that he did not succeed in turning the pipe at all, but that he did cause a slackening in a joint connecting it with another pipe, with the result that the pipe he was trying to turn swung unexpectedly towards him, causing him to lose his balance. The pursuer ultimately did not dispute that the accident was partly caused by his own negligence.
Held (1) applying dictum of Lord Justice-Clerk Cooper in Mitchell v. North British Rubber Co., 1945 J. C. 69, at p. 73, that sec. 29 (1) imposed on the defenders a duty to provide a working place safe for the pursuer, despite his negligent manner of working; that without a guard-rail the platform was not a safe working place; and that a guard-rail would probably have prevented the pursuer's fall; (2) that, although the pursuer's averment that the pipe turned suddenly had been negatived, the facts proved were within his averments; and (3) that the fault of both parties contributed to the accident.
The Court accordingly awarded damages, subject to a reduction for contributory negligence.
Opinion in Paterson v. Charles Brand & Son Ltd., 1964 S. L. T. (Notes) 75, and dictum inHill v. J. O. Buchanan & Co., 1965 S. L. T. (Notes) 24, doubted by Lord Cameron.
Peter Keenan brought an action of damages against his employers, Rolls Royce Limited, in respect of injuries which he sustained in an accident in the defenders' factory at East Kilbride on 10th November 1963. The only ground of fault on which he ultimately founded was a breach of section 29 (1) of the Factories Act, 1961.1
The facts established were as follows:On the day in question the pursuer, who was a skilled and experienced maintenance plumber, was instructed, along with two other men, Daly and Freeman, to unscrew a steel pipe, three inches in diameter, which ran horizontally above the roof girders of the heat treatment department of the factory, at a height of about sixteen feet above the floor. This pipe ran from a point near the centre of the department to one of the walls, where its end was screwed into an elbow joint, into the other end of which another section of pipe was screwed, which ran down the wall vertically. Scaffolding was required to reach the point at which the pursuer had to work. He tried to obtain a scaffold known as a "zip-up" staging, which was fitted with a hand-rail, but was unable to do so, as it was in use elsewhere. Accordingly he, Daly and Freeman constructed a platform at a height of about eleven feet above the floor, using tubular scaffolding and two planks, each nine feet long and nine inches wide. They were unable to find materials to erect a guard-rail round this platform. Freeman then left to do other work. The pursuer went up to the platform and fitted a tool known as a set of chain pipe tongs, but referred to at the proof as a "chain pipe wrench," to the pipe. This tool, which is in common use in the plumbing trade, consists of a bar or handle, in this case three feet long, having near one end a sharp-toothed ratchet, which is forced against the pipe by a chain wound round the pipe and secured at its free end by a locking stud. To apply torque to the pipe, the operator must apply the head of the wrench to the pipe with the ratchet below the pipe. It is dangerous to apply the
head of the wrench to the pipe upside down, as the chain can then fall off the stud if the tension on it is relaxed, and the wrench will then come off the pipe. The pursuer applied the wrench to the pipe in the wrong way. He pulled the handle down, but was unable to turn the pipe. He then tied a rope to the handle, so that Daly, pulling on the rope, while he pulled on the handle, could exert additional pressure. Their combined efforts failed even to begin to unscrew the horizontal pipe, but they did slacken the elbow joint at the point where the vertical pipe was screwed into it, and this caused the horizontal pipe to swing towards the pursuer, who lost his balance and fell, with the wrench in his hand, from the platform to the floorThe parties averred, inter alia:(Cond. 2) " The pursuer attempted to break the seal at the join of the pipe and then fitted a chain pipe wrench to the pipe. The wrench had a three-foot-long handle. The pursuer was unable to exert sufficient leverage on the handle to turn the pipe and accordingly fitted a rope to the end of the handle. Daly then pulled on the rope, while the pursuer pulled on the wrench. The pipe suddenly turned, and the pursuer lost his balance and fell from the platform, sustaining the injuries hereinafter condescended on The defenders' averments, so far as not coinciding herewith, are denied." (Ans. 2) " It is believed and averred that prior to the accident the pursuer applied the set of tongs to the pipe the wrong way round. Consequently, as soon as pressure was applied to the tongs, the chain jumped out of its location, and the tongs came away from the pipe, thereby causing the pursuer to overbalance and fall off the platform " (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 29 (1) of the Act, which provides, inter alia, that any place at which any person has at any time to work shall, so far as is reasonably practicable, be made and kept safe for any person working there. The pursuer had to work at said platform. The platform was not safe because of said danger of losing balance and falling therefrom when the strain on the wrench was suddenly released. It would have been reasonably practicable to make and keep said place of work safe by providing a platform with a guard-rail such as said zip-up staging. It was the defenders' duty to provide a platform with a guard-rail. In this duty the defenders failed and so caused said accident. They failed to make and keep safe the pursuer's working place. Had the defenders fulfilled said statutory duty incumbent on them, said accident would not have happened. The defenders' averments, so far as not coinciding herewith, are denied." (Ans. 4) "Admitted that the defenders' premises were a factory within the meaning of the Factories Act, 1961 Quoad ultra denied. Explained and averred that the defenders fulfilled their said statutory duty, and that the said platform was in the circumstances safe "
The pursuer pleaded, inter alia:"(1) The pursuer, having sustained injury and damage through the fault and negligence of the defenders, as condescended on, is entitled to reparation therefor."
The defenders pleaded, inter alia:"(4)Separatim, the accident having been caused wholly by the fault of the pursuer, the defenders are entitled to absolvitor. (5)Separatim, esto the accident was caused partly by the fault of the defenders, which is denied, it having also been caused partly by the fault of the pursuer, any damages awarded should be reduced in terms of the Law Reform (Contributory Negligence) Act, 1945."
On 29th July 1968, after a proof before answer, the Lord Ordinary (Leechman) sustained the first plea in law for the pursuer and the fifth for the defenders and awarded damages.2 He held the pursuer 60 per cent to blame for the accident on account of his having applied the wrench to the pipe the wrong way round.
The defenders reclaimed, and the case was heard before the First Division on 8th, 9th and 10th July 1969.
At advising on 15th July 1969,
LORD PRESIDENT (Clyde).This is a reclaiming motion by the defenders in an action of damages brought against them by a maintenance plumber, who was injured while trying to unscrew a steel pipe, three inches in diameter, in their East Kilbride factory. The pursuer at the time was working on a scaffold erected on the floor of the factory, and was using a chain pipe wrench to unscrew the pipe. He fell off the scaffold and was injured.
After a proof the Lord Ordinary held the pursuer 60 per cent to blame and the defenders 40 per cent to blame. Against this finding the defenders have presented this reclaiming motion and have argued to us that the pursuer should be found wholly to blame.
The only ground upon which it is now maintained that the defenders were in any way to blame was that they were in breach of section...
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