Liptrot v British Railways Board
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE DANCKWERTS,LORD JUSTICE SALMON |
| Judgment Date | 01 March 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J0301-1 |
| Date | 01 March 1966 |
| Court | Court of Appeal |
[1966] EWCA Civ J0301-1
In The Supreme Court of Judicature
Court of Appeal
Appeal from Order of Barry J. at Manchester Assizes dated 11th October, 1965.
Revised.
Lord Justice Willmer,
Lord Justice Danckwerts and
Lord Justice Salmon
Mr GODFREY HEILPERN, Q.C., and Mr A MILLER PRESTT (instructed by Messrs Gibson & Weldon, Agents for Messrs John Whittle, Robinson & Bailey, Manchester) appeared on behalf of the Appellant (Plaintiff).
Mr R. MARVEN EVERETT, Q.C., and Mr PERCY J CORCORAN (instructed by Mr W.H.B. Gilmour) appeared on behalf of the Respondents (Defendants).
This Is an appeal from a judgment of Mr Justice Barry given at Manchester Assizes on the 11th October, 1965, whereby he dismissed a claim by the plaintiff against his employers for personal injuries arising out of an accident at work. The accident causing the injuries took place on the 24th May 1962, and it occurred in a scrap metal yard which formed part of the defendants' locomotive works at Horwich in Lancashire. The scrap metal yard is an open yard where scrap metal is collected for sorting and subsequent disposal, but it is admitted on the pleadings that it is a "factory" within the meaning of the Factories Act, 1961.
The plaintiff was employed as a "slinger", and his job as such was to work in conjunction with the driver of a mobile crane, which was used for the purpose of collecting the scrap metal dumped in the yard and loading It into wagons for removal. The mobile crane in question is very well illustrated in the photographs which have been put before us. The crane Itself is mounted, by means of a vertical shaft, on a chassis fitted with four rubber tyred wheels, on which it is able to move from place to place under its own power. It is thus at one and the same time a vehicle and also a piece of mechanism designed for the lifting of weights. The body of the crane is capable of being rotated on the chassis through 360 degrees. The lifting tackle may be used either with a hook or, as in the present case, with an electrical magnet for the purpose of picking up the objects to be lifted. The crane is operated by a driver who sits in a cab in the body of the crane, from where he can see ahead (that is, in the direction in which the jib is pointing) so that he can control the lift; but in his position in the cab the driver is unable to see what goes on behind him.
The objects to be lifted and sorted apparently comprise a wide variety of pieces of scrap metal, or at least they did at the time when the accident happened. This scrap metal may include (and on the occasion of this accident did Include) lengths of wire. The evidence showed that sometimes a piece of wire, when put under tension by the lifting operation, may be caused to spring violently towards the body of the crane, and when this occurs the wire may lodge in the gap between the body and the chassis. When this occurs it has to be cleared by hand before the crane can continue to operate. There was apparently a well-recognised procedure which was normally adopted for clearing the wire on occasions such as that. The procedure was that the slinger (that is to say, the plaintiff in the present case) who would be stationed on the ground, would signal to the crane driver to stop the crane. The crane driver, having stopped the crane, would then dismount, and he and the slinger between them would set about the task of clearing the wire, eitherby cutting it or by breaking it. On the occasion of this accident a piece of wire did in fact become jammed between the body and the chassis of the crane. The plaintiff was on the point of giving the usual warning to the crane driver to stop, so that the two of them could curry out the normal procedure for freeing the wire. But he then saw that it was only a short length of wire which was caught, and he appears to have thought that he would have time to clear it by himself whilst the crane was stationary, and before the driver could operate the crane for the purpose of picking up the next load of scrap. So without giving any warning to the driver of what he was doing, he positioned himself between the body of the crane and the nearside wheel of the chassis, in a position which has been illustrated for us by the position of the man in photograph No. 3; and in that position the plaintiff proceeded to try and clear the wire. The crane driver, not knowing that the plaintiff was there, proceeded to rotate the crane for the purpose of picking up another load. The result was that, as the body of the crane rotated, the plaintiff was trapped between it and the top of the wheel of the chassis in consequence he sustained severe personal injuries through the crushing of his chest, abdomen and pelvis.
The plaintiff brought this action against the defendants alleging that they were guilty both of negligence at common law and of breach of their statutory duty under section 14 of the Factories Act, in that they failed to fence the dangerous nip between the body of the crane and the wheel of the chassis. The learned judge dismissed the action, holding that neither negligence at common law nor breach of statutory duty had boon proved against the defendants. At the plaintiff's request, however, he proceeded to assess the damages which he would have awarded, which he fixed at the sum of £21. 13s.6d., a sum which included within it an agreed amount of special damage. The learned judge intimated that, even if he had found some fault on the part of the defendants, he would in any case have held that the plaintiff himself was to blame to the extent of two-thirds. On this appeal it has not been contended that thedefendants ware guilty of any negligence at common law. The appeal is based solely on the contention that they were in breach of their statutory duty in falling to fence what the judge himself described as a dangerous part of the machinery. The plaintiff accepts the learned judge's assessment of damages. He also accepts that he was at fault to the extent of two-thirds; but we are invited to find that the defendants were also at fault to the extent of one-third, and in those circumstances to enter judgment for the plaintiff for one-third of the damages found by the judge, namely, £773.17.10.
The question which we have to decide is whether this crane, while in use within an area admitted to be a "factory", constituted "machinery" within section 14 of the Act, so as to require that any-dangerous part of it should be securely fenced.
The learned judge, in reaching his conclusion, considered and rejected an argument that section 14 could not be hold applicable having regard to the fact that cranes and lifting machines are specifically dealt with by section 27 of the Act. In rejecting that argument he was following the decision of Mr Justice Streetfeild in Carrington v. John Summers & Sons Limited, (1957) 1 All England Law Reports, page 457. The judge took the view (in my view rightly) that the mere fact of cranes being specifically dealt with in section 27 of the Act would not prevent a mobile crane from being held to be subject also to section 14 if it constitutes machinery within that section.
If section 14 were held to apply to this mobile crane, the learned judge expressed himself as satisfied that the nip between the rotating body and the wheel of the chassis would constitute a dangerous part so as to call for fencing. In the course of his argument for the defendants, Mr Marven Everett has sought to attack that finding. It was, however, pointed out to him that no respondent's notice had been filed in this case, and in those circumstances, at a very late stage of his argument, he applied for leave even at that stage to file a respondent's notice. We considered that application very carefully, but (as I have already announced) wedid not see fit to grant leave at that stage of the appeal to file a respondent's notice. As was pointed out by Mr Heilpern for the plaintiff, the effect of granting leave at that stage would have been to open up a whole new vista of questions both of fact and law which had not been dealt with at all in the presentation of the appeal on behalf of the appellant. In those circumstances we did not think it right, at this stage in an action of this character, to grant that concession to the defendants.
It follows that the only question left for decision in this appeal is the question which I have already stated, namely, whether this mobile crane did constitute "machinery" within section 14 of the Factories Act. The learned judge quite clearly did not find that an easy question to decide. Indeed, he said so in terms and expressed the view that the case fell very, very near the borderline. In the end, however, he came to the conclusion which I have stated, namely, that section 14 did not apply. What he said in his judgment was this. 'Hundreds, even thousands, of these cranes are in use throughout the country on sites which may or may not be factories within the meaning of the Factories Act. They are fully mobile. Indeed, as I understand it, subject to adequate licensing they can move along the highway, and on the whole I am satisfied that the dangers which they create are really quite different from those caused by factory machinery. Indeed, it seems to me that one is much more likely to be run over by the wheels of one of those mobile cranes than caught in the very unusual position in which the plaintiff found himself when this accident occurred. It is common knowledge that those machines are often let out on hire, and it seems to mo it would be placing an almost intolerable burden on a factory owner if he had to ensure that every mobile crane which was on his premises, even for a short time, complied with all the requirements of the Factories Act. So far as the evidence...
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