Millar v Galashiels Gas Company
| Jurisdiction | England & Wales |
| Judgment Date | 20 January 1949 |
| Docket Number | No. 2. |
| Date | 20 January 1949 |
| Court | House of Lords |
HL
Lord Normand. Lord Morton of Henryton. Lord MacDermott. Lord Reid.
Negligence—Master and Servant—Breach of statutory duty—Factory—Maintenance of hoists and lifts—Inexplicable failure of hoist on single occasion—Factories Act, 1937 (1 Edw. VIII and 1 Geo. VI, cap. 67), secs. 22 (1) and 152 (1).
The Factories Act, 1937, enacts:—Sec. 22. "(1) Every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained." "Maintained" is defined in sec. 152 (1) of the Act as meaning "maintained in an efficient state, in efficient working order, and in good repair."
A workman was killed through the failure of the brake mechanism of a hoist in his employers” works. The employers had taken every practical step to ensure that the mechanism worked properly and that the hoist was safe to use. The brake had worked well both before and after the accident, and the failure, of which no explanation was forthcoming, could not have been anticipated.
Held (aff. judgment of the Second Division) that the obligation created by the Act was of an absolute and continuing nature, and that the fact of the failure of the brake was sufficient to establish a breach of the employers” statutory duty.
(In the Court of Session, 6th February 1948—1948–1948 S. C. 191.)
Mrs Mary O'Donnell or Millar brought an action against the Galashiels Gas Company, Limited, for damages in respect of the death of her husband, George Dunse Millar, which occurred as a result of injuries received while in the employment of the defenders.
The following narrative of the facts established at a proof is taken from the speech of Lord Reid:—"The pursuer and respondent is the widow of George Dunse Millar who died as a result of injuries sustained while working as a stoker in the defenders' and appellants' gas works. Coke is discharged from retorts on the ground floor of the gas works into bogies, each of which holds about 15 cwt. When each bogie is filled it is run into a lift, taken up to the first floor, run out of the lift along a gantry to a point where it is emptied into a screening plant, then run back into the lift and brought down to be refilled. At about 9 p.m. on 1st October 1945 the deceased George Millar was engaged in this work. He took a full bogie up in the lift and some time later he was found seriously injured lying with an empty bogie at the bottom of the lift shaft, and the lift was found to be at the top of the lift shaft. He died on the following day as a result of these injuries.
"The lift was electrically operated. There are gates on the lift and also gates at each floor level. The electric circuit of the power which operates the lift runs through these gates so that, if any one of the gates is open, the circuit is broken and the power cannot be applied. The lift is attached to wire ropes which pass over a hoist drum at the top of the shaft to a counter-balance weight which moves up as the lift moves down, and down as the lift moves up. Power is applied to rotate the hoist drum and so to move the lift up or down according to the direction of rotation of the drum. When power is not being applied, the drum is held by a brake. The brake shoes are held against the drum by strong springs and the brake can only be taken off by withdrawing the shoes against the pressure of the springs. The force necessary to withdraw the brake shoes is provided by a solenoid which is part of the electric power circuit. When this circuit is closed the flow of the power magnetises the solenoid, with the result that a plunger attached to the brake shoes is moved by magnetic force so as to withdraw the brake shoes from the hoist drum against the pressure of the springs. The hoist drum is then free to rotate. Immediately the power current ceases to flow, the solenoid is demagnetised and the pressure of the springs forces the brake shoes back into position against the hoist drum so that it cannot rotate and therefore the lift cannot move. Accordingly, if this mechanism is in efficient working order it is impossible for the lift to move while any one of the gates is open.
"What must have happened immediately before the accident to the deceased George Millar is this:—Millar switched off the power with the lever in the lift cage when he reached the first floor and then opened the gates. He then ran the bogie out to the point of discharge, leaving the gates open; he then emptied the bogie, and ran it back to the lift shaft. By this time the lift cage had moved upwards in the shaft. Millar did not see that this had happened and ran the bogie into the lift shaft. The lift not being in place, he and the bogie fell to the bottom of the shaft. It is not now maintained that Millar was guilty of contributory negligence in doing this.
"Immediately after Millar was found the lift was examined. It was found that the liftway gates on the first floor were open and that the lift was at the top of the shaft. The hoist drum and brake shoes were examined but not touched. It was seen that the brake shoes were not gripping the hoist drum; they had not returned to their proper position when Millar switched off the power current in stopping the lift at the first floor. The counter-balance weight is heavier than the empty lift cage, and in the absence of a brake this difference of weight moved the lift up and away from the first floor while Millar was unloading the bogie.
"The next day the appellants asked a firm of lift engineers to carry out a thorough examination. The fitters who were sent to do this found that, although the current was off, the solenoid plunger had remained in the “energised” position and therefore the brake shoes were clear of the hoist drum. As soon as one of the fitters touched the plunger it moved to the off position and the brake shoes gripped the drum. Every effort was made to find out what had caused the plunger to stick when the solenoid was demagnetised. The whole mechanism was dismantled and carefully examined, but nothing was found to account for the failure. The mechanism was then reassembled and it worked perfectly. It has continued to work perfectly since the accident and no repairs or renewals have been necessary. For at least nine years before the accident the brake had never been known to fail on any occasion. No satisfactory explanation of this isolated failure has since been found."
The pursuer pleaded:—"(1) The pursuer, having suffered loss, injury and damage through the defenders” breach of statutory duty is entitled to reparation as concluded for. (2) The pursuer, having suffered loss, injury and damage through the defenders' breach of common law duty, is entitled to reparation as concluded for."
On 13th June the Lord Ordinary (Blades) found that the defenders were in breach of their statutory duty under section 22 (1) of the Factories Act, 1937, but were not in breach of any common law duty, and awarded a sum of damages to the pursuer.
On 26th February 1948 the Second Division refused a reclaiming motion against his interlocutor.
The defenders appealed to the House of Lords. In the House of Lords, as in the Second Division, the pursuer acquiesced in the Lord Ordinary's decision in so far as the action was based on common law.
The case was heard on 6th and 7th December 1948.
At delivering judgment on 20th January 1949,—
LORD NORMAND.—I have had the advantage of reading in print the
speeches which my noble and learned friends are about to deliver, and I find myself in complete agreement with them. The facts will be dealt with by my noble and learned friend Lord Reid. I desire only to emphasise that no new principle and no extension of any principle already recognised is involved in the conclusion that the appellants are liable to the respondent for breach of the duty imposed on them by section 22 (1) of the Factories Act, 1937.1 The only question of law in the case is the proper construction of the obligation imposed by section 22 (1) as controlled by the definition of "maintained" in section 152 (1), and on that I wish to add nothing.LORD MORTON OF HENRYTON.—Section 22 (1) of the Factories Act, 1937, is in the following terms:—"Every hoist or lift shall be of good mechanical construction, sound material and adequate strength, and be properly maintained." The statutory duty which, it is alleged, the appellants have failed to discharge is contained in the words, "Every hoist or lift shall be properly maintained" in section 22 (1) read in conjunction with the definition of "maintained" in section 152 (1): "“Maintained” means maintained in an efficient state, in efficient working order, and in good repair." I think there can be no doubt that this subsection imposes a continuous obligation on...
To continue reading
Request your trial
- Landcatch Ltd v The Braer Corporation and Others
-
Hamilton v National Coal Board
...was the object. I must conclude, therefore, by saying that in my opinion it would be right to follow the course laid out in Smith's case and Millar's case and declare that the obligation under section 81 (1) of the Mines and Quarries Act, 1954, is absolute. I do not think that either of the......
-
Haigh v Charles W Ireland Ltd
...& Co. Ltd.UNK, (1957) 107 L.J. 379; Mitchell v. North British Rubber Co. Ltd.SC,1945 J.C. 69: Millar v. Galashiels Gas Co. Ltd.SC, 1949 S.C. (H.L. 31 and Carmichael v. Cockburn & Co.SC,1955 S.C. 1 9 and 10 Eliz. II, cap. 34. 1 (1887) 19 Q.B.D. 647 at p. 658 2 43 and 44 Vict. cap. 42. 3 (188......
-
RHM Bakeries (Northern) v Commissioners of Customs and Excise
...care to maintain" or words to that effect. There is no definition of "maintained" as there was in Millar v. Galashiels Gas Co.SC 1949 S.C. (H.L.) 31. So the question remains "what is meant by “maintain” in section 2?" Definitions of "maintain" given in the Shorter Oxford English Dictionary,......