Latimer v A. E. C. Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Porter,Lord Oaksey,Lord Reid,Lord Tucker,Lord Asquith of Bishopstone |
| Judgment Date | 25 June 1953 |
| Judgment citation (vLex) | [1953] UKHL J0625-1 |
| Date | 25 June 1953 |
| Court | House of Lords |
[1953] UKHL J0625-1
Lord Porter
Lord Oaksey
Lord Reid
Lord Tucker
Lord Asquith of Bishopstone
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Latimer against A.E.C. Limited, that the Committee had heard Counsel, as well on Monday the 27th, as on Tuesday the 28th, Wednesday the 29th and Thursday the 30th, days of April last, upon the Petition and Appeal of Albert Richard Latimer of 23 Ruislip Road, Greenford, in the County of Middlesex, 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 1st of May 1952, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner 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 printed Case of A.E.C. Limited, 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 1st day of May 1952, 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 Appellant do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
In this case the Appellant recovered a sum of £550 as damages for injuries which he alleged had been the result of a failure on the part of the Respondents in breach of their statutory duty to maintain one of the gangways in their works in an efficient state. He relied also upon an allegation of Common Law negligence. Pilcher, J. rejected his claim based on a breach of statutory duty, but held the Respondents guilty of Common Law negligence. The Court of Appeal agreed with the judgment of the learned judge on the claim for breach of statutory duty, but were of opinion that there was no Common Law negligence upon the part of the Respondents.
The relevant facts are short and undisputed. The Appellant was a Horizontal Milling Machine Operator employed by the Respondents in their works at Southall. At those works they employ some 4,000 persons and the works themselves extend over an area of about 15 acres. On the 31st August, 1950, the Appellant was working on the night shift in the general machine room and came on duty at about 7.45 p.m. His work involved collecting barrels containing bundles of hand brake levers and weighing about 2 cwts. They had to be conveyed by him on a trolley along a passage or gangway for a distance of about 30 yards from the place where they were stored. Between about 12 noon and 3 p.m. on that afternoon there had been an exceptionally heavy storm of rain which caused the whole of the premises to become flooded with surface water. This water became mixed with an oily liquid known as "mystic" which was normally collected in channels in the floor of the building. These channels were covered with iron lids which were not watertight. The "mystic" was soluble in water and was used to act as a cooling agent for the machines. When the water which had so been impregnated drained away from the floor it left an oily film upon the surface which was slippery. After the rainfall had subsided the Respondents spread sawdust upon the floor so far as they had a sufficient quantity for that purpose. They had in fact enough at hand for any occurrence which they could be expected to foresee, but, owing to the unprecedented force of the storm in question and the large area that had to be covered, there was insufficient sawdust to place it upon portions of the floor including the part of the floor where the barrels were situated. The principal object of spreading sawdust upon the floor was to dry it, but incidentally it would also have some effect in decreasing the slipperiness. The Respondents knew that the coating of the floor with the mixture of "mystic" and water would to some extent increase its slipperiness. They also knew that the Appellant in the course of his work would have to collect the barrels at the place in question. At about 8.45 p.m. in the course of his work he went to collect a barrel with the help of a fellow workman and succeeded in getting the metal lip of a trolley under the base of the barrel in order to raise it from the floor. He then placed his right foot on the axle of the trolley and pushed with his left foot, but his left foot slipped on the oily surface of the floor with the result that he fell on his back and the barrel rolled off the trolley and crushed his left ankle.
Undoubtedly the Respondents did their best to get rid of the effects of the flood, employing such of the day workers as could be spared and obtaining volunteers from them for work in the interval between day and night work and from the night shift at a later period, but in the learned judge's opinion it was not possible for them to take any further steps to make the floor less slippery. I understand his view to have been however that, inasmuch as the effect of the storm left the gangway in question and possibly other portions of the works somewhat slippery and therefore potentially dangerous. they should have shut down the whole works if necessary or at any rate such portion as was dangerous.
My Lords, the difficulty which I feel about this solution is that neither the necessity for such an action nor its effect was ever pleaded, explored or considered until the Respondents' Counsel was in the course of making his final speech. No doubt the point was then raised and argued on behalf of the Respondents. It may indeed be that an adjournment could have been asked for at that stage and evidence called on either side. But to take such action would have meant recasting the whole framework of the case and I do not think it was incumbent upon the employers' representatives to take this course. In my opinion they were entitled to rest upon the evidence as given and to ask that it should be considered as a whole and the requisite inference drawn from it. It was urged the mere happening of such an accident cast the onus on them of explaining it and excusing themselves but the facts material to the matters pleaded had been given in evidence and where the relevant facts have been established no question of onus arises.
A number of complaints of negligence and breach of duty are set out in the statement of claim, but so far as Common Law negligence is concerned I can find no suggestion that the factory should have been closed, nor was any amendment asked for or permitted to that effect. All the particulars set out in the Statement of Claim consisted of complaints which the learned judge found not to have been established and which were not persisted in before your Lordships.
Upon the issue of Common Law negligence as now presented the direction which should be given is not in doubt. It is to determine what action in the circumstances which have been proved would a reasonably prudent man have taken. The probability of a workman slipping is one matter which must be borne in mind but it must be remembered that no one else did so. Nor does the possibility seem to have occurred to anyone at the time. It is true that after the event Mr. Milne, one of the Respondents' witnesses, expressed the opinion that he would not have gone on to the floor in the condition in which it was and that it would be too dangerous to do so. But this was after the event and though he was the Respondents' safety engineer and was present until late that night, it seems never to have occurred to him that there was any danger or that any further steps than those actually taken were possible or required for the safety of the employees. The seriousness of shutting down the works and sending the night shift home and the importance of carrying on the work upon which the factory was engaged are all additional elements for consideration and without adequate information on these matters it is impossible to express any final opinion.
Moreover, owing to the course taken at the trial there is no material for enabling one to judge whether a partial closing of the factory was possible or the extent to which the cessation of the Appellant's activities would have retarded the whole of the work being carried on.
In my view, in these circumstances the Appellant has not established that a reasonably careful employer would have shut down the works or that the Respondents ought to have taken the drastic step of closing the factory.
The question whether there has been a breach of statutory duty turns upon the true construction of section 25 of the Factories Act, 1937. That section provides that "All floors, steps, stairs, passages and gangways shall be of sound construction and properly maintained", and section 152 (1) defines "maintained" as meaning "maintained in an efficient state, in efficient working order, and in good repair".
Section 25, were it not for the definition, would seem merely to provide for sound construction and a proper state of repair.
But the definition does give rise to a more difficult problem inasmuch as it requires both the existence of "good repair" and an "efficient state". The further provision as to "efficient working order" may be neglected since that requisite is more appropriate to working machines than to a static portion of the premises.
It has still, however, to be determined what it is which has to be in an efficient state. Does it include the...
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