Lewis v Denye
| Jurisdiction | England & Wales |
| Judge | The Lord Chancellor,Lord Atkin,Lord Thankerton,Lord Romer,Lord Porter |
| Judgment Date | 27 June 1940 |
| Judgment citation (vLex) | [1940] UKHL J0627-1 |
| Date | 27 June 1940 |
| Court | House of Lords |
[1940] UKHL J0627-1
House of Lords
Lord Chancellor
Lord Atkin
Lord Thankerton
Lord Romer
Lord Porter
After hearing Counsel, as well on Wednesday the 22d, as on Thursday the 23d, Monday the 27th and Tuesday the 28th, days of May last, upon the Petition and Appeal of Leonard Lewis, Pauper, of 151 Patterson Street, Birkenhead, in the County of Chester, an infant suing by his father and next friend George Lewis, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 27th of January 1939, might be reviewed before His Majesty the King, in His 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 His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of F. Denye, 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 His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 27th day of January 1939, 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 be allowed further time, until the 25th day of July next, in which to make application to the County Court for compensation to be assessed under the Workmen's Compensation Act, 1925.
My Lords,
This is an Appeal from an Order of the Court of Appeal in England, dated 27th January, 1939, affirming a Judgment in favour of the Respondent given by Mr. Justice Tucker at Liverpool Assizes on 14th April, 1938. The action was brought by the Appellant, Leonard Lewis (an infant suing by his father and next friend, George Lewis) against the Respondent, Denye, an occupier of a wood-working factory situated at Birkenhead, for damages for breach of statutory duty whereby the Appellant's left hand was seriously injured through coming into contact with the teeth of a power-driven circular saw which he was using at the time. The claim was alternatively put as a claim for damages for negligence arising from failure to fence the saw adequately, but this House has decided in Lochgelly Iron & Coal Co., Ltd. v. M'Mullan, [1934] A.C.1, that a breach of statutory duty imposed as a protection to workmen against injury is, for the purposes of an action for damages, equivalent to negligence, so this alternative way of stating the claim need not be separately considered. The Respondent denied any negligence or breach of statutory duty, and pleaded that in any case the Appellant's injuries were caused, or in the alternative were contributed to, by the Appellant's own negligence or breach of statutory duty.
The Appellant at the time of the accident in June, 1937, was between 16 and 17 years of age. He had been working at the Respondent's factory at various wood-cutting machines for about 18 months, and he had often used the particular machine which injured him. It was a vertical saw set in a bench table, so that only about a quarter of the disc of the saw projected above the level of the bench. The Appellant was occupied in reducing to two inches the width of a large number of pieces of wood, which were about two feet long and which varied from two to three inches in depth. There are indications in the evidence that the width of the pieces before they were sawn was about four to live inches. The method of working was for the Appellant to stand facing the front of the revolving saw and to push each length of wood in turn, by means of a "push-stick" applied at the end of the length, along the bench table until it was engaged by the saw's descending teeth and then until it was sawn through from end to end, so as to produce a piece of the prescribed width on the right, and an "off cut" on the left, of the saw. The workman secured the prescribed dimension of two inches of width by pressing the wood, as it approached the saw, with his left hand against a perpendicular slab called a "guide fence", which was adjusted in a plane parallel to the plane of the saw and at a distance of two inches to the right of it as the workman was standing. It was, therefore, a necessary part of the operation that the workman should use his left hand to keep the piece of wood pressed against the "guide fence", at any rate until the teeth of the saw had bitten into the wood. At the far side of the saw, and in a direct line with it, there was fixed a wedge-shaped "riving knife", with its front edge close to the ascending teeth of the saw, which served the purpose of splitting or separating the two severed pieces of wood more completely as they left the saw.
A great deal of confusion arose at the trial because the Appellant's case was until a late stage presented as that of an injury caused to the thumb and fingers of his left hand, owing to their being caught in the teeth of the saw at the "riving knife" end. The trial Judge, who described the Appellant's manner of giving evidence as most unconvincing, came to the conclusion that the accident happened at the point of entrance, i.e., at the place where the wood is fed into the saw and not at the further side where the severed wood leaves the saw and encounters the "riving knife". The Court of Appeal took the same view and there can be no doubt that Mr. Justice Tucker's finding on this point is correct. The saw was whizzing round at a great pace, the Appellant was performing a repetitive operation which occupied only a few seconds and which he had carried through again and again, the accident was sudden, unexpected and very painful, and it is not perhaps surprising that this youth did not reconstruct the incident correctly.
The revolving saw was admittedly "dangerous machinery" within the meaning of Section 10 (1) ( c) of the Factory and Workshop Act, 1901, and therefore, by the terms of that Section, required to be "securely fenced". If it was not, the factory, by sub-section (2) of that Section would be "deemed not to be kept in conformity with this Act", and the occupier would be liable to legal proceedings under Section 135. Moreover, under Section 79 of the Act, which is one of the bundle of sections dealing with Regulations for Dangerous Trades, the Home Secretary has certified that woodworking machinery is dangerous and has exercised his power to "make such regulations as appeared to him to be reasonably practicable and to meet the necessity of the case". The Woodworking Machinery Regulations, 1922, contain, in Regulation 10, detailed requirements for the fencing of a circular saw by means of an adjustable guard, with a flange at the side of the saw farthest from the fence. The Regulation goes on:
"The guard shall be kept so adjusted that the said flange shall extend below the roots of the teeth of the saw. The guard shall extend from the top of the riving knife to a point as low as practicable at the cutting edge of the saw."
In the case of a circular saw which is fed by hand (and this was the species of saw in the present case) Regulation 11 provides:
"a suitable push-stick shall be kept available for use at the bench of every circular saw which is fed by hand...
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