Mirza v Ford Motor Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMROD,LORD JUSTICE BRANDON,MR JUSTICE HOLLINGS |
| Judgment Date | 22 May 1981 |
| Judgment citation (vLex) | [1981] EWCA Civ J0522-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 May 1981 |
| Docket Number | 81/0204 |
[1981] EWCA Civ J0522-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM
THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Lord Justice Ormrod
Lord Justice Brandon
Mr Justice Hollings
81/0204
1976 M. No 5974
MR C. ROSE, Q.C. and MR P. LATHAM (instructed by Messrs Evill & Coleman) appeared on behalf of the Appellant.
MR R. TER HAAR (for Mr A.MACHIN Q.C. and Mr M. Harvey) (instructed by Messrs Hewitt, Woollacott & Chown) appeared on behalf of the Respondents.
This is an appeal from a Judgment of Mr Justice Ackner (as he then was), given on 23rd February, 1979, whereby he dismissed the Plaintiff's claim against his employers for damages for personal injuries caused by their alleged negligence and breach of statutory duty.
The accident happened as long ago as 17th October 1975, so there has been a deplorable delay in concluding this relatively simple case, involving unpleasant, but not particularly serious injury.
The Plaintiff was employed as a machine setter and was operating a B.S.A. automatic machine for cutting grooves in sparking plugs. He had to load the work pieces into a hopper on the machine, from which they passed automatically to the machine itself. The work pieces were brought to him in bins, each containing a large number of work pieces, and weighing a considerable amount. To raise the bins to the level of the hopper he was provided with an electrically operated hoist crane. The bins were fitted with a ring to take the hook of the hoist. The crane was operated by a set of push buttons, five in all, to raise, lower, track the crane to the left, and to the right, and to stop the motor. The crane was fitted with a "Norvair" hook, which was put through the ring, and the bin was raised by the crane to the level required to load the hopper.
The "Norvair" hook is a type of hook specially designed to give maximum protection to the operator against the risk of its becoming detached from the load. It is illustrated in the photographs. It consists of an ordinary hook, coupled with a safety clip, designed to close the opening of the hook as soon as the load begins to be taken up. The safety clip consists of two crescent shaped pieces of metal, one on either side of the hook, mounted on a spindle, which passes through the metal tip of the hook. It is fitted with a spring loaded release which keeps the hook closed once the clip is in position. The shape of the clip and its mounting is so arranged that as soon as the load comes on the hook it depresses the lower end of the crescent shaped clip and swings the upper end towards the hook, effectively closing the hook. As the clip moves it creates two "nips"; one between the upper tip of the clip and the shank of the hook, and one between the lower end of the clip and the body of the hook. The latter is open when there is no load on the hook, and closes as the clip swings round to close the hook when it is under load.
The accident occurred because the Plaintiff on this occasion held the hook by its lower edge in his right hand put it on the ring with his right hand, and, instead of closing the clip by hand, either by moving it with his hand, or by pulling the hook up against the ring, decided to press with his left hand the lift button on the crane, which pulled up the hook, against the ring causing the clip to close on the hook. The tip of his right index finger was in the gap between the lower end of the clip and the body of the hook, and as the load came on to the hook it was trapped by the clip and amputated.
The learned Judge rejected the Plaintiff's allegations of negligence against the Defendants. There is no appeal against that part of the Judgment so no more need be said about it. In the alternative, the Plaintiff based his claim on breach of statutory duty, relying on Section 14 (1) of the Factories Act, 1961, contending that this hook was a dangerous part of the machinery in the factory and ought to have been securely fenced to comply with that section. The learned Judge rejected this contention also and dismissed the claim. In the event of his conclusions proving wrong on appeal, the Judge dealt with the questions of contributory negligence and damages, holding that the Plaintiff was 80 per cent to blame for the accident, and assessing the damages at £1,750, reduced by 80 per cent to £355.40. There is no appeal from either of these assessments. The sole question in this appeal, therefore, is whether or not the Defendants were in breach of Section 14 (1).
Section 14 (1) is in these terms: "Every part of any machinery, other than prime movers and transmission machinery, shall be securely fenced unless it is such a position or of such construction as to be safe to every person employed or working on the premises as it would be if securely fenced".
The learned Judge posed for himself two questions for decision: (a) was the safety hook part of any machinery? (b) if so, was it a dangerous part of any machinery? He answered the first question in the negative, but held on the second that, in the light of the authorities, the hook was dangerous. The Defendants do not now challenge this latter finding, although they did file a Respondent's Notice to raise the point. The only question in this appeal, therefore, is whether the safety hook was part of any machinery within the meaning of Section 14 (1).
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- Morton Machine Company Ltd (1952), AC 515, the learned Judge said this, at page 13 E—G of the transcript of the Judgment: "The majority of the authorities to which I have referred are agreed that the question whether a particular apparatus in a factory constitutes machinery within Section 14 of the Act is to determined by the standards of common sense. Judged by these standards, I do not see how this hook, attached to the end of the chain, operated by this electrically-controlled hoist can be properly described, not only as part of the machine (the hoist), but as part of its machinery. In my judgment, therefore, Section 14 (1) has no application to the facts of this case".
Two factors clearly influenced the learned Judge's mind in coming to this conclusion. Firstly, the evidence of Mr Lewis, the Defendants' safety officer, showed that the Defendants had taken a great deal of trouble to find a design of hook which provided the maximum safety for their employees and, after tests and trials and discussion with the men and the unions had decided on the "Norvair" safety hook which was very simple to operate, and once closed provided a high degree of protection from the danger of loads slipping out of the hook. Secondly, he found that the evidence established that there is no safety hook which can comply with Section 14, assuming that it is applicable. He was also influenced by the reflection that if Section 14 did apply the Defendants, by fitting a hook which provided maximum safety, were committing a criminal offence.
Mr Rose Q.C., who appeared for the Appellant in this Court submitted that the learned Judge had adopted an unduly narrow construction of Section 14 (1), demonstrated by his two references to the criminal liability of the Defendants if the Plaintiff's contentions were upheld, and by his reliance on Cherry's case, which the House of Lords had over-ruled in Liptrot's case, and on Quintas' case which was of doubtful authority, in the light of Lord Hodson's criticism of it in Liptrot's case. Consequently, he had failed to apply the more literal construction of the Section which was adopted by the House of Lords in various cases, particularly in Johnson -v- Callow Ltd (1971) AC 335. He ought, therefore, to have held that the hook was part of the whole mechanism of the lifting machinery.
Mr Machin Q.C., supported the learned Judge's approach. He said that there was no decided case in which anything comparable to this hook had been held to be a part of machinery for the purpose of Section 14 (1). He suggested that if the Plaintiff was right, all hooks on cranes ought to be fenced, which would mean that all employers who provided cranes with hooks would be committing offences all the time.
In my judgment, the result of this appeal depends upon the proper construction of Section 14 (1), which, because of the generality of its language, and the lack of any proper definition in the Act, has led to a great deal of litigation and much conflict of judicial opinion which has had to be resolved by the House of Lords on many occasions, but, regrettably, without resolving the difficulties which continue to perplex the Courts.
The problem can be approached in various ways. Counsel for Defendants habitually stress the criminal character of the Factories Act and its manifold regulations, and argue for the strict construction appropriate to a criminal statute. Counsel for Plaintiffs tend to approach this legislation as if it were a vehicle for the introduction of strict or no fault liability on the part of employers and argue, as Mr Latham did in this case in the Court below, that it is immaterial that a liberal construction will produce serious anomalies or create grave practical difficulties. Factory inspectors will not prosecute and employers just have to pay up if accidents happen.
Both these approaches rely to a considerable extent on rhetoric. The Factories Acts were and are, in form, criminal statutes, but they have been adapted by...
To continue reading
Request your trial