Liptrot v British Railways Board
| Jurisdiction | England & Wales |
| Judge | Viscount Dilhorne,Lord Reid,Lord Hodson,Lord Guest,Lord Pearson |
| Judgment Date | 20 June 1967 |
| Judgment citation (vLex) | [1967] UKHL J0620-1 |
| Date | 20 June 1967 |
| Court | House of Lords |
[1967] UKHL J0620-1
House of Lords
Viscount Dilhorne
Lord Reid
Lord Hodson
Lord Guest
Lord Pearson
Upon Report from the Appellate Committee, to whom was referred the Cause British Railways Board against Liptrot, that the Committee had heard Counsel, as well on Wednesday the 8th and Thursday the 9th, days of February last, as on Monday the 8th, Tuesday the 9th and Wednesday the 10th, days of May last, upon the Petition and Appeal of the British Railways Board (a corporate body), whose Principal Office is situate at 222 Marylebone Road, London, N.W.1, 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 March 1966, 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 Petitioners 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 Case of Thomas Liptrot, 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 March 1966, 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 Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
On the 24th May, 1962, the Respondent met with an accident when employed by the Appellants as a slinger in their scrap metal yard at Horwich in Lancashire. Scrap metal is sorted there and then lifted by a mobile crane and placed in a railway truck.
The yard is in the open but by virtue of section 175(2)( b) of the Factories Act, 1961, is a factory for the purposes of that Act.
The mobile crane is mounted on a four wheeled chassis, the wheels of which are covered with rubber. The body of the crane is mounted on a vertical shaft fitted in the centre of the chassis. The crane driver sits at the offside front of the body. The crane can travel over the ground under its own power and is then driven by the driver from his cab from which he also controls the movement of the jib and the lifting and lowering of material by the crane. The jib and the body of the crane can be made to revolve in a full circle above the chassis.
The scrap metal is lifted by a hook or by a magnet. On the 24th May the magnet was in use. The jib of the crane projects from the body and when a load of scrap metal has been lifted, the crane driver has to slew the jib so as to unload the metal in a railway truck.
When the jib is slewed, the body of the crane revolves with it. There is a narrow space between the bottom of the body of the crane and the chassis over which the body revolves. When wire was lifted, it was sometimes subjected to tension with the result that, when the wire broke or came free, it sprung up and got caught between the body and the chassis of the crane. When this happened, the normal practice was for the Respondent to tell the crane driver to stop the crane and then for him to remove the wire.
On the 24th May wire had got caught in this space on three occasions before the accident. On each of these occasions the normal practice was followed.
Then the Respondent saw that another piece of wire, a short piece, had got caught. He saw that the magnet of the crane was on the ground and he thought that he would have time to free the wire before a load of metal was picked up and the body of the crane revolved.
He stood between the rear wheels of the chassis, close to the nearside rear wheel, in a position in which it was impossible for the driver of the crane to see him. He leant forward and put his arm in to the space between the body of the crane and the chassis to try and free the wire. While he was engaged on this, the crane driver slewed the jib with the result that the Respondent was caught by the edge of the body of the crane as it revolved and squeezed against the nearside rear wheel of the chassis.
He commenced an action against the Appellants claiming damages for the injuries he had received and alleging negligence and a breach of statutory duty. In his Statement of Claim it was, inter alia, alleged that:
"The trapping point between the body of the said crane and the said wheel, being a dangerous part of the said machine, was not securely fenced; negligently and/or contrary to section 14 of the said Act".
The Appellants by their defence denied negligence and breach of statutory duty and alleged that the accident was solely caused or alternatively was contributed to by the negligence of the Respondent.
The action was tried by Barry J. at Manchester Assizes in October, 1965. He held that negligence on the part of the Appellants was not established. This finding was not challenged by the Respondent in the Court of Appeal or in this House.
With regard to the claim under the Factories Act, Barry J. said that counsel for the Respondent had referred to section 27 of the Act "and said, as this referred to cranes and working gear and as the machine which caused this accident was a crane, it was in fact machinery within the meaning of section 14 and thus it required to be fenced". Barry J. then said:
"Without the slightest hesitation, I follow the decision of Mr. Justice Streatfeild in the case of Carrington v. John Summers Ltd. [1957] 1 All E.R. 457. The effects of that decision were that if that crane was machinery within the meaning of section 14, then the meaning of that section would apply to it, despite the most specific requirements of section 27. … I am also satisfied, applying the somewhat stringent tests laid down, that this was a dangerous part of the machinery."
Barry J. did not state in any greater detail what was the part of the machinery that he was satisfied was dangerous or what was the part to which counsel referred when he said that it required to be fenced. In view of the allegation in the Statement of Claim, to which I have referred, it is to be presumed that Barry J. and counsel were referring to what was called in that document the trapping point between the body of the crane and the wheel.
Barry J. then went on to consider whether the mobile crane was machinery to which section 14 of the Act applied. He held in the light of the decision in Cherry v. International Alloys Ltd. [1961] 1 Q.B. 136 "with very considerable hesitation" that it was not. He consequently gave judgment for the Appellants but said that if they had been at fault, he would have held them one-third to blame and the Respondent two-thirds to blame. He assessed the damages in the neighbourhood of £2,000 in addition to the special damage.
The Respondent appealed to the Court of Appeal. The Appellants did not serve a cross notice but towards the end of the hearing in the Court of Appeal sought leave to do so to challenge the Judge's finding that there was a dangerous part of the machinery. The Court of Appeal did not think that it was right to grant such leave at such a late stage.
The Court of Appeal (Willmer and Salmon L.JJ., Danckwerts L.J. dissenting) allowed the appeal holding that the Factories Act applied to a crane used in a factory.
From this decision the Appellants now appeal. In paragraph 3 of their Case it is said that the following points arose for decision:
"(1) Was the mobile crane which was involved in the accident which occurred … machinery within the meaning of section 14 of the Factories Act 1961?
(2) If it was, was the part of the said mobile crane which was involved in the Respondent's accident a part of the machinery in the Appellants' factory within the meaning of the said section?
(3) If it was, was the part where the Respondent was injured a dangerous part of the machinery …?
(4) On the facts as found by the trial judge was the Respondent the sole author of his own misfortune?"
The second and third questions divide into two the question the Appellants were not permitted to argue in the Court of Appeal, namely, whether what has been called the trapping point constituted a dangerous part of machinery. In their Lordships' view it was not open to the Appellants to argue this question before them. The Appellants, not having given a cross notice, did not argue in the Court of Appeal that the Respondent was solely to blame for the accident and, in their Lordships' opinion, it was not open to them to put forward that contention before them.
So initially the only question for decision by this House was whether the mobile crane was machinery within the meaning of section 14 of the Act. After the argument had proceeded for some time, the Appellants sought to raise the question which had been raised before the trial judge, whether, as section 27 of the Act specifically related to cranes, they were to be regarded as excluded from the ambit of section 14. Leave was given to the Appellants on terms to advance this argument.
The first section in this Part, section 12, relates to prime movers, section 13 to transmission machinery and section 14 to other machinery. Section 14(1) reads as follows:
"Every dangerous part of any machinery, other than prime movers and transmission machinery, shall be securely fenced unless it is 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...
To continue reading
Request your trial
-
Johnson v F E Callow (Engineers;) Ltd
...is no obligation to fence a machine under section 14 if it is dangerous as a whole but without having dangerous parts (cf. Liptrot v. British Railways Board [1969] 1 A. C. 136 per Lord Reid at 159); (2) It is now established that under section 14 what is referred to as a part of the machin......
-
Baker v Quantum Clothing Group and Others (No 3)
...sections of the Act are not exclusive codes in relation to their particular subject matters (see e.g. Liptrot v British Railways Board [1969] 1 AC 136), and it is not axiomatic that there cannot be overlap between the application of two different sections. It seems to me good sense to desc......
-
Hugh Wearing (Appellant – Plaintiff) v Pirelli Ltd (Respondents – Defendants)
...fence a machine under section 14 If it is dangerous as a whole but without having dangerous parts (of Liptrot v. British Railways Board (1969) 1 A.C. 136, per Lord Reid at p. 159); (2) it is now established that under section 14 what is referred to as a part of the machinery does not includ......
-
Mirza v Ford Motor Company Ltd
...meaning of Section 14 (1). 9 After referring to Cherry -v- The International Alloys Ltd (1961) 1 QB 136, Liptrot -v- British Railways (1969) 1 AC 136, Quintas -v- National Smelting Company Ltd (1961), 1 WLR. 401, Richard Thomas and Baldwins Ltd -v- Cummings (1953), AC 321, and Parvin -v- Mo......