Kimpton v Steel Company of Wales Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE ORMEROD,LORD JUSTICE UPJOHN |
| Judgment Date | 25 March 1960 |
| Judgment citation (vLex) | [1960] EWCA Civ J0325-2 |
| Court | Court of Appeal |
| Date | 25 March 1960 |
[1960] EWCA Civ J0325-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Sellers,
Lord Justice Ormerod and
Lord Justice Upjohn.
MR JOHN THOMPSON, Q.C. and MR ALUN T. DAVIES (instructed by Messrs Kenneth Brown, Baker, agents for Messrs Gee & Edwards, Swansea) appeared as Counsel on behalf of the Appellants (Defendants).
MR F. ESWYN JONES, Q.C. and MR DAVID PENNANT (instructed by Messrs Rowley Ashworth & Co.) appeared as Counsel on behalf of the Respondent (Plaintiff).
The Court is indebted to Learned Counsel for their argument in what is I think on both points a difficult case.
The Plaintiff was an electrician employed by the Steel Company of Wales, and on the 9th February, 1956, in the course of his work as a maintenance electrician he was descending three iron or steel steps in the factory when he slipped. The learned Judge, Mr. Justice Edmund Davies, has found that in descending the steps as he did the Plaintiff probably slipped on the second step and slipped through no fault of his own, that the accident involved him striking his back, and that the accident would probably never have occurred if there had been a hand-rail because he thought - and it has not been challenged - that if there had been a hand-rail the Plaintiff might have been able to save himself in some way.
This set of steps was placed in position, I apprehend, at the time of the construction of this part of the factory in 1951, and there had been no mishap, of which any evidence was accepted in regards to it, in the whole of its history. It is depicted in a photograph which may give an appearance of larger dimensions than it in fact possesses. Indeed it is only just over 3 ft. in height altogether. The steps are there for the purpose of giving access to or means of descent from a table or platform or a cat-walk (as it has been called). The whole steps are made of steel, as I have said, and the treads of the steps are studded so as to give, I suppose, a better foothold or grip. The set of steps is not attached to the building, that is to say, the steps, are not built in to the building in any way; it is removable or detachable. But it is a solid structure of considerable weight and no doubt was wedged in securely, there being an inset into the uppermost step of some part of the platform which prevents lateral movement. Indeed this case was brought in one of its aspects as a breach of duty by the Defendants in having this set of steps in such a condition that they wobbled and were unsafe. That was rejected by the learned Judge and no matter of appeal has arisen upon that. It was an allegation of breach of section 26 (1) of the Factories Act, but no point turns on that section in this appeal.
Another and more seriously advanced complaint was that there was a breach of section 25 (1) of that Act in that the steps at the time of this accident were greasy and oily. That allegation has been rejected and there is no appeal from that finding either.
The Plaintiff succeeded before the learned Judge on the last of the main matters which were advanced in order to establish a claim against the Defendants. That was under section 25 (2) of the Factories Act, which reads as follows: "For every staircase in building or affording a means of exit from a building, a substantial hand-rail shall be provided and maintained, which, if the staircase having two open sides, or in the case of a staircase which, owing to the nature of the construction thereof or the condition of the surface of the steps or other special circumstances, is specially liable to cause accidents, such a handrail shall be provided and maintained on both sides. Any open side of staircase shall also be guarded by the provision and maintenance of a lower rail or other effective means". The learned Judge has found that these three steps were a staircase within the meaning of that section of the Act, and he held therefore that there had been a breach of that section by there not being any hand-rail or, as it would have required, two hand-rails. He also found liability at common law.
Both points (which on the face of it seem quite simple matters) have created some difficulty. The learned Judge has stated in his judgment the arguments as to whether these three movable steps should be called a "staircase" or not, and, having so done, he came to the conclusion that they did constitute a "staircase". I do not repeat the arguments in full; they are set out in the learned Judge's Judgment. Reference was made to the first subsection of section 25, which provides that: "All floors, steps, stairs, passages and gangways shall be of sound construction", drawing a distinction between "steps" and "stairs", as indeed there is or may be. But subsection (2) does not repeat either of those - either "steps" or "stairs" - but refers to a "staircase".
The Judgment likewise sets out of the material parts of dictionary definition what may be a "staircase" and a "flight" of steps, or a "series" of step. I think there is little doubt that on the strict dictionary definition one might say that these three steps fell within a dictionary definition. The learned Judge however - I think rightly - did not decide this point on a strict dictionary. He was no doubt guided by it (as any Court would be) and arrived at his conclusion having considered what those definitions were. He tools the view, looking at all the circumstances of the case, that this particular structure was a "staircase".
Now the approach to this matter must be I think, first of all, to recognise that the Act does not itself define a "staircase" or indeed a "step" or "stairs". It is dealing with the safety of factories, and using words which have to he considered in the ordinary everyday fulfillment of what is required by its remedial and protecting measures, what is required to be done. I think that the whole Act has regard to what is the ordinary description of things in a factory.
The matter is not without some authority and we were referred to the observations of Lord Justice Somervell in the case of Bath v. British Transport commission, reported in 1954, 2 All England Reports at page 542. That case was referred to in a latter case which came before this Court of Tate v. Swan Hunter & Wigham Richardson Ltd., reported in 1958, I weekly Law Reports, commencing at page 39, in which Lord Justice Morris (as he then was) referred to what Lord Justice Somervell had said in the earlier case in this way: "I find myself, in approaching this case, feeling very much as Lord Justice Somervell did when he expressed himself in his judgment in Bath v. British Transport Commission. In that case it was held that it was impossible to regard an excavation which constitutes a dry dock as an 'opening' within the meaning of subsection (3) of section 25, and Lord Justice Somervell in this court, said: 'I do not think that I can add much on that point. One is sometimes tempted to construe perfectly familiar words, but if they are, as these words are, perfectly familiar, all one can do is to state whether or not one regards them as apt to cover or describe the circumstances in question in any particular case.'" That particular case which the learned Lord Justice was considering there was the definition of the word "floor". We have been referred further by Mr. Thompson to some observation of Lord Reid in the case of Richard Thomas & Baldwins Ltd. v. Cummings, reported in 1955 Appeal Cases at page 321, on page 334 of which the noble Lord says: "The fact that the interpretation for which the respondent contends would lead to so unreasonable a result is, in my opinion, sufficient to require the more limited meaning of 'in motion' to be adopted unless there is some very strong objection to it, and none was suggested. It is true that the Factories Act is a remedial statute and one should therefore lean towards giving a wide interpretation to it, but that does not justify interpreting and ambiguous provision in a way which leads to quite unreasonable results".
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