Kilgollan v William Cooke & Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MORRIS |
| Judgment Date | 18 April 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J0418-1 |
| Court | Court of Appeal |
| Date | 18 April 1956 |
[1956] EWCA Civ J0418-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justics Singleton
Lord Justice Morris and
Lord Juhtigb Romer
Mr. J. F. DRABBLE. Q. C. and Mr. P. STANLEY-PRICE. Q.C. (instructed by Messrs. Gibson & Wleldon, Agents for Messrs. John Whittle, Robinson & Bailey, Manchester) appeared on behalf of the Appellant (plaintiff).
Mr. G.S. WALLER, Q.C. and Mr. R.R. RAWDEN-SMITH (instructed by Messrs, Bell, Brodrick & Gray, Agents for Messrs, Harold Jackson & Co., Sheffield) appeared on behalf of the Respondents (Defendants).
LORD JUSTICE SINGLETON: This is an interesting case. The difficulty is to describe the process in a factory and the accident which happened end in respect of which the action was brought. The Defendants, William Cooks & Company, Limited, are wire manufacturers, or wire rope manufacturers. They have a factory at Attercliffe, in Sheffield. The Plaintiff. Mrs. Nore kilgollan, was employed by them as strander. She was in charge of m of some complexity. It is a long shine, and the main parts of it is a barrel which revolved round at considerable speed - over soo revolutions a minute. Inside the barrel there were, at the material time, some 18 . (I am not sure that that is the correct name, but they lock like bobbins). On such of the bobbine there was wire, sometimes of very thin or small mesh and sometimes of a little bigger mesh. The wire was drawn fron the bobbins to the end of the machine, and the rotation of the barrel had the result of causing those 18 different pieces of wire to become something in the nature of a wire rope: all 18 strands were bound together by the action of the rotating barrel. Sometimes it happended, when the process was going on. That a wire on one of the bobbins broke. When that took place, it was the duty of the operator to switch off the machine; the handle for so doing is shown quite clearly on photograph No. 1. After that was done, the broken wire was mended. When that had been done, the machine was switched on again and work was resumed. There is no doubt that the revolving barrel was a "dangerous part on machinery" and that it ought to be fenced in accordance with section 14 of the Factories Act, 1937. It was fenced, to a degree: there was a wire mesh guard over the upper part of it which is shown in position in photograph No. 4. As I shall point out in moment, the guard did not come down so as to cover the bottom part of the revolving barrel: it was sot a complete guard in accordance with section 14 of the Act. That was common ground on the trial. When a broke, the loose piece flew about through the rotation of the barrel. Sometimes it was heard quickly, and the machinewas switched off: but it appears from the evidence that it was not known at once in every case - indeed it was net, in the case with which this court has to deal.
On the 22nd January, 1953 Mrs. Kilgollan was somewhere in front of the machine, watching the bobbins. One of them was getting near the end of the wire upon it. She was watching, and she felt something hit her. She did not Know what it was. What had happened was this: a wire had broken; in some way a piece of the wire - a very small piece, a centimetre – came off some part of the broken wire and struck her in the eye: it went right through her eye and it lodged, and it la still lodged, in the bone behind the eye: the eight of the eye la destroyed. It was a most unfortunate accident. and a serious one.
She brought this action against her employers, claiming damages had alleging that they were in breach of their statutory duty under action 14 of the Factories Act, and also alleging that they were negligent at common law. She felled in her action, and she appeals to this Court, asking that it shall be found that the Defendants are responsible in damages, on one ground or on both grounds.
I have sought to describe the machine and the accident in as few words as I can, but I do not disguise that there are complications, and it is not very easy to follow completely what takes place Inside the machine. A good deal of discussion has taken place upon what will happen or what does happen when a wire breaks inside the machine. It is said that frequently when that happens one end of the broken wire flail. out under the guard and that It may, and sometimes does, strike the worker who is opposite the machine. I do not know that the expression that it "flails out" is the right one. Mr. Waller, for the Defendants, prefers the description that it "lashes out". I should have thought that was rather a stronger description. But what is clear is that very often when there is a break one end of the wire swishes out under the guard' and that it sometimes strikes a workwomen. The worker In charge of the machine (as the Plaintiff was) is calleda strander. Let me make this clear: the guard upon the machine was not put there to deal with this kind of thing at all: it was a guard provided to prevent a strender, or any other workman or workwoman, coming into contact with a "dangerous part of machinery", either accidentally or inadvertently. None the less, it was admitted by the General manager of the Defendant Company that if there had been a guard of the kind there should have been, for the purposes of section 14. the guard would have prevented an accident such as happened in this case.
Mr. Drabble, on behalf of the Plaintiff. submitted that the accident arose through the Defendants' breach of section 14 of the Act, which, so far the material, readS, "Every dangerous part of any machinery…. shall be securely fenced unless it la in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced". That is followed by a proviso to this effects "Provided that, in so far as the safety of a dangerous pert of any machinery cannot by reason of the nature of the operation be secured by means of a fixed guards the requirements of this subsection shall be deemed to have been complied Kith if a device la provided which automatically prevents the operator from coming into contact with that part". The proviso appears to give support to the argument of the Defendants (which Indeed has been approved in the House of Lords) that the object of the guard which has to be provided under section lb is to prevent the operator from coming into contact "with that part" - that is, the dangerous part. The section ends with these words. "The Secretary of State may, as respects any machine or any process in which a machine is used, make regulations requiring the fencing of materials or articles which are dangerous while in motion in the machine". The Secretary of State has not made any such regulations.
In the case of ( Nicholls v. P. Austin (Leyton) Limited 1946 Appeal Cases, page 493) these were the circumstances which had to be considered: "By section 14 sub-section 1 of the Factories Act, 1937: 'Every dangerous part of any machinery…shall be securely feneed". The last paragraph of section 14 gave the secretary of state power to 'make regulations requiring the fencing of materials or articles which are dangerous while in motion in the mechine' but none had been made. The appellant, while operating a circuler saw belonging to her employers, the respondents, was injured through a piece of wood flying out of the machine which was fenced so as to comply with the requirements of the Woodworking Machinery Regulations, 1922, which by section 150 of the Act were to be deemed to have been made under that Act". It was held, by the House of Lords, "that the respondents were not in breach of any statutory obligation, since the obligation to fence imposed by section 14. sub-section 1, was an obligation to guard against contact with any dangerous part of a machine and not guard against contact with any dangerous part of a machine and to guard against dangerous materials ejected from it, a matter depending solely on the making of regulations under the discretion depending solely on the making of regulations under the discretion" ary power conferred by section 14, sub-section 3, on the Secretary of state and not exercised by him".
Lord Thankerton (at page 499) said: "My Lords, on consideration of the terms of section l4, I am of opinion that there is a simpler answer to the contention of the appellant, namely, that the obligation to fence imposed by subsection 1 is an obligation to provide a guard against contact with any dangerous part of a machine, and that it does not impose any obligation to guard against dangerous mateels or articles ejected from the machine in motion, that matter depending solely on the making of regulations by the Secretary of State under the discretionary power conferred on him by the last paragraph of the section. This view appears to be amply confirmed by the language used") and (at page 500) "I am of opinion that there is no obligation imposed by section 14 on the respondents as regards these flying bits of wood, and therefore they are not in breach of any statutory obligation, and the appellant's main contention fails".
The other law lords expressed the same view} and the law is (as I have stated already) that the respondents, in those circumstances, "were not in breach of any statutory obligation, sincethe obligention to fence imposed by section 14 was an obligation to guard against contact with any dangerous part of a machines and not to guard against dangerous materials ejacted from it".
In the present ease, that which came out from the machine was a part of that which was being manufactured or put together in the machines it was material being used in the machine: and upon the decision to which I have referred it is clear that this Court cannot accede to the first pert of the argument advanced by Mr. Drabble.
There...
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