Mains v Uniroyal Englebert Tyres Ltd

JurisdictionScotland
Judgment Date01 June 1995
Docket NumberNo 53
Date01 June 1995
CourtCourt of Session (Inner House - Extra Division)

EXTRA DIVISION

Lord Osborne

No 53
MAINS
and
UNIROYAL ENGLEBERT TYRES LTD

Reparation—Negligence—Employers' liability—Breach of statutory duty—Factory—Duty to make working place safe—Danger unforeseeable—Reasonable practicability—Whether pursuer had to establish danger foreseeable—Onus of proof—Relevancy—Averments—Factories Act 1961 (9 & 10 Eliz II, cap 34), sec 29(1)1

Section 29(1) of the Factories Act 1961 enacts: “There shall, so far as is reasonably practicable, be provided and maintained safe means of access to every place at which any person has at any time to work, and every such place shall, so far as is reasonably practicable, be made and kept safe for any person working there.”

The pursuer was injured whilst working in the defenders' factory at a tyre building machine. A piece of machinery moved when it ought not to have moved, trapping his finger and causing injury. The movement of the machine could not be explained and its movement was something which was quite unforeseeable. The Lord Ordinary (Osborne) rejected the pursuer's case at common law and under sec 29 of the Act on the ground that the accident had not been reasonably foreseeable. The pursuer reclaimed.

Held (1) (rev judgment of Lord Osborne) that if a pursuer required to establish that the unsafe condition of a place of work was something which was reasonably foreseeable, this would equiparate the duty under the statute to the duty under common law, which was not Parliament's intention; (2) that the first matter to be considered was whether the working place was made and kept safe, and if that question was answered in the negative then, and only then, did consideration require to be given as to whether or not it was reasonably practicable for the defenders to have complied with their statutory obligation; (3) that, accordingly, apart from the defence of reasonable practicability, the obligation upon an employer under sec 29(1) was to make and keep the place of work safe from dangers regardless of whether or not they were foreseeable, and therefore in establishing whether or not a place of work was safe, the foreseeability of risk or danger was irrelevant; and (4) that the employers were not precluded in a case under sec 29(1) from raising the issue of reasonable foreseeability for if they could establish that no risk or danger could reasonably have been foreseen from the state of the working place, then it might well be arguable that there were no reasonably practicable precautions which they could have taken to prevent the emergence of such a risk, but that would be a matter for the defenders to raise within the context of reasonable practicability and would not in any way impose anonus on the pursuer to establish that the risk of injury was something which was foreseeable from the state of the working place as it was immediately before the accident; and reclaiming motionallowed.

Observed (per Lord Sutherland and Lord Johnston) that it was inappropriate to equiparate sec 14 with sec 29 with particular reference to the line of authority construing the word “dangerous” in sec 14 for that issue arose under that section in order to determine the scope of the section in the particular instance and indeed where it applied at all and the fact that courts had interpreted “dangerous” under reference to reasonable foreseeability did not mean that necessarily the same criteria should apply when considering a different provision raising the questions of safety, particularly where that

latter provision was qualified by a so-called escape clause (viz reasonable practicability) and sec 14, when it came to breach, was absolute.

Authorities reviewed.

Neil Mains brought an action against his employers, Uniroyal Englebert Tyres Limited, in which he claimed damages arising from an accident he sustained whilst acting in the course of his employment with the defenders. The grounds of fault included, inter alia, a case based upon common law negligence and a breach of sec 29(1) of the Factories Act 1961.

The cause called for proof before answer before the Lord Ordinary (Osborne).

At advising, on 30 March 1994, the Lord Ordinary assoilzied the defenders.

The pursuer reclaimed.

Cases referred to:

Black v Fife Coal Co 1912 SC (HL) 33

Brown v National Coal BoardELR [1962] AC 574

Campbell v SCA Packaging Ltd OH, 24 February 1995, unreported (1995 GWD 11–607)

Close v Steel Co of WalesELR [1962] AC 367

Eaves v Morris Motors LtdELR [1961] 2 QB 385

Gibson v British Insulated Callenders Construction CoSC1973 SC (HL) 15

Gillies v Glynwed Foundries Ltd 1977 SLT 97

Harrison v National Coal BoardELR [1951] AC 639

Hill v Buchanan 1965 SLT (Notes) 24

Hindle v BirtwhistleELR [1897] 1 QB 192

Keenan v Rolls Royce LtdSC 1969 SC 322

Larner v British Steel plcUNK [1993] 4 All ER 102

Lockhart v Kevin Oliphant Ltd 1993 SLT 179

Millar v Galashiels Gas CoSC 1949 SC (HL) 31

Mitchell North British Rubber Co LtdSC 1945 JC 69

Morrow v Enterprise Sheet Metal Works (Aberdeen) LtdSC1986 SC 96

Neil v Greater Glasgow Health BoardUNK 1994 SCLR 673

Nimmo v Alexander Cowan & Sons LtdSC 1967 SC (HL) 79

Robertson v R B Cowe & CoSC 1970 SC 29

Summers (John) & Sons Ltd v FrostELR [1955] AC 740

Taylor v Coalite Oils & Chemicals Ltd (1967) 3 KIR 315

Walker v Bletchley Flettons LtdUNK [1937] 1 All ER 170

Williams v Painter Bros Ltd (1978) KIR 467

The cause called before an Extra Division, comprising Lord Sutherland, Lord Johnston and Lord Wylie, for a hearing.

At advising, on 1 June 1995—

LORD SUTHERLAND—The pursuer and reclaimer sustained injury when working in the respondents' factory in February 1992. The reclaimer was working at a tyre building machine which was a machine of very large size. The machine could be operated either in automatic or manual mode. When operated in manual mode no part of the machine should move unless specifically operated by the operator. From time to time part of the machine known as the back stitcher required to be adjusted. When this had to be done the operator put the machine into manual mode and then proceeded to carry out the necessary adjustment. On the day of the accident the reclaimer was doing this when the back stitcher arm suddenly moved, trapping his finger between that arm and a bracket of the machine.

After proof, which involved expert witnesses on both sides, the Lord Ordinary held that the accident did indeed occur as the reclaimer alleged but that the movement of the stitcher arm, while the machine was in manual mode, was something which could not be explained. He further held that the movement of the arm was something which was quite unforeseeable and his findings on these matters have not been challenged before us. The reclaimer made cases at common law and under secs 14 and 29 of the Factories Act 1961. Because the accident was unforeseeable the Lord Ordinary rejected the reclaimer's cases at common law and under sec 14. No challenge is made of his decision in that regard. As far as the case under sec 29 is concerned the Lord Ordinary also rejected that case on the ground that the accident was not reasonably foreseeable, and it is his decision on that matter which is the subject of challenge in this reclaiming motion.

Section 29(1) of the Factories Act 1961 provides: [His Lordship quoted the terms of sec 29(1) as set out supra and continued:]

It is only the second part of that section which is in issue in the present case, the reclaimer maintaining that the machine was his place of work and was not Q made and kept safe for him. The respondents at no time challenged the relevancy of a case being made under sec 29 in the circumstances of this case. It may seem slightly strange that Parliament has made detailed provision relating to the safety of machinery in other sections of the Act but these sections can be bypassed by recourse to sec 29 when an accident occurs by reason of some unsafely of a machine. Be that as it may, the respondents have not challenged the reclaimer's contention that the machine was his place of work. The other matter to be noted at this stage is that the respondents at no time averred, or made any attempt to establish, that it was not reasonably practicable for them to comply with their obligations under sec 29(1).

The issue between the parties can be simply stated, namely, whether reasonable foreseeability is a necessary prerequisite in the determination of whether or not a place of work was made and kept safe within the meaning of sec 29(1). The reclaimer's contention was that the obligation under the section on the employers was to do precisely what the section says, namely, make and keep the place of work safe, and it was immaterial that the precise risk or danger which occurred was unforeseeable. It was maintained that this interpretation is not as draconian as might at first appear because it is open to the employers to aver and prove, if they can, that it was not reasonably practicable to perform their obligation under the section. The respondents' position was that it was necessary for a pursuer to prove that there was some element of risk or danger which was reasonably foreseeable before it could be said that a place of work was unsafe and before it was necessary for employers to take any precautions. This issue has been the subject of a number of decisions, both in Scotland and England, and unfortunately there is a substantial divergence of view.

Counsel for the reclaimer argued that the underlying purpose of the Factories Act is to promote safety to an extent greater than the common law. There is no express reference in sec 29 to reasonable foreseeability but there is a defence provided relating to reasonable practicability. This is for the defenders to aver and prove and they did not seek to do so. Counsel maintained that the latest decision in the Court of Appeal in England construes sec 29 in the manner he contended for, having considered the whole relevant law...

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    ...SLT 122, Larner v British Steel plc [1993] ICR 551, Neill v Greater Glasgow Health Board [1994] SLR 673, [1996] SC 185 and Mains v Uniroyal Englebert Tyres Ltd [1995] SC 518. The Court of Appeal in the present case held that it was bound by Larner, as well as expressing agreement with 74 ......
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