Mitchell v North British Rubber Company Ltd
| Jurisdiction | Scotland |
| Judgment Date | 23 February 1945 |
| Date | 23 February 1945 |
| Docket Number | No. 13. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Mackay. Ld. Stevenson.
Statutory Offences—Factory Acts—Safety of workers—Obligation to fence dangerous part of machinery—Accidents within reasonable anticipation—Operative's hand caught between revolving rollers of calender—Factories Act, 1937 (1 Edw. VIII and 1 Geo. VI, cap. 67), sec. 14 (1).
The Factories Act, 1937, enacts, by sec. 14 (1), that "every dangerous part of any machinery, other then 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 be if securely fenced.…"
A girl employed by a rubber manufacturing company to attend an upright calender had to put rubber sheets between two power-operated rollers 9/16ths of an inch apart, her duty being to place the sheets on the lower roller so that they should pass into the "nip" or aperture between the rollers as they revolved at a speed of nine feet per minute. In doing so her hand was caught and crushed between the rollers, and her forearm had to be amputated. The calender was not fenced, although a fence suitable to this type of calender was manufactured and was frequently used on similar machines.
In finding the employers not guilty of a contravention of sec. 14 (1) of the Act of 1937, the Sheriff-substitute held that the nip was not a dangerous part of the machinery which required to be fenced, founding on the simplicity of the operation of placing the sheets of rubber in position on the lower roller and the slowness of the rollers in revolution.
Held (diss. Lord Mackay) that, notwithstanding these considerations and the facts that the calender had for long been used without any accident of this description, and that Government inspectors had never suggested that it was dangerous, the nip was a potential source of danger at any rate to any worker who might be careless and inattentive, and accordingly should have been fenced; and a remit made to the Sheriff-substitute to convict.
The North British Rubber Company, Limited, were charged in the Sheriff Court at Edinburgh on a complaint at the instance of Gladys Muriel Mitchell, His Majesty's Inspector of Factories, which set forth that on Monday, 19th June 1944, being the occupiers of a factory within the meaning of the Factories Act, 1937, they did contravene section 14, subsection (1) of the said Act in respect that a certain dangerous part of the machinery in the said factory, namely, the nip between the bottom and third rollers of the four bowl Bertram vertical calender in the east mill room, was not securely fenced, contrary to the said provision of the said Act, and that in consequence of such contravention, Mary Hardie, a women aged 19 years, then employed in the said factory, suffered bodily injury.
On 20th October 1944, after evidence had been led, the Sheriff-substitute (Jameson) found the accused not guilty and, at the request of the inspector, stated a case for appeal to the High Court of Justiciary.
The stated case set forth that the Sheriff-substitute found the following facts proved:—"(1) On 19th June 1944 the respondents operated in their factory at Castle Mills, Edinburgh, an upright calender for rolling rubber into sheets of a uniform width and thickness, called a Paraflor calender, which is a well-known type of calender in rubber manufacture. (2) The calender…consists of four rollers which are placed on above the other, and in the present appeal are numbered from the top 1, 2, 3, and 4. (3) The rollers are 60 inches in circumference. Roller No. 1 was not in use, the operation after-described involving only rollers Nos. 2, 3, 4. (4) The rollers are driven by an electric motor and revolve at 1 5/8 revolutions, that is about 9 feet per minute. (5) The point between the rollers where they approach nearest to one another is called “the nip.” (6) When the calender is in use one operative stands in front of the calender facing the grill and platform…;and another operative stands or sits at the back of the calender.… (7) the operative in front places bulk rubber on the platform bordered by the grill…facing the nip between rollers 2 and 3. (8) He then feeds the bulk rubber into the nip between the revolving rollers Nos. 2 and 3, where it is pressed to a sheet 1/16th inch thick, emerging on roller 3 at the back of the calender. Roller 3 is heated so that the rubber adheres to it. (9) At the back of the calender the rubber passes round roller 3 to where is situated the bar facing roller 3…, which bar has fixed on it two projections having each two knives which encountering the rubber revolving cut two narrow strips off it. (10) The rubber apart from the two narrow strips goes on revolving round roller 3, passes through the nip at the back of rollers 3 and 4, which is approximately 9/16th inch wide, and comes again to the front of the calender. (11) The two outmost sheets of rubber fall to the ground at the front of the calender. As regards the centre sheet, which is the only part being made use of in the operation, the operative in front cuts the end of the rubber straight with a knife, and then passes this sheet round and under the revolving roller 4 to the back of the calender. (12) The end of this sheet of rubber is then picked up and placed on roller 4 by the operative at the back of the calender to ensure that it will be carried into the nip between rollers 3 and 4. (13) The sheet of rubber then continues to wind round and round roller 4, until after some eight revolutions the successive layers of 1/16th inch thick sheet build up to a total thickness of ½ inch. (14) It is the duty of the back operative (a) to lead away for scrap the narrow strips cut from the rubber as it revolves round roller 3, the operative generally doing this with the left hand; and (b) (at the beginning of the operation) to place the rubber sheet on to roller 4 so that it passes into the nip between rollers 3 and 4 to be carried to the front again. (15) On 19th June 1944, Mary Hardie, a woman aged 19 years, was back operative on the respondents' upright Paraflor calender. (16) When placing the rubber sheet on roller 4 her hand got caught between the revolving rollers 3 and 4. (17) At both front and back of the calender there is an emergency stop wire to stop the machine. The front operative pulled this wire, which stops the calender in 4½ inches. But the girl's hand was crushed and her forearm had to be amputated. (18) On 19th June 1944 the nip between rollers 3 and 4 was unfenced. (19) A fence is manufactured to fence this kind of nip. (20) This fence consists of two long bars running the length of the nip with cross bars at intervals. (21) This fence allows the operative to put the sheet of rubber in the proper position on roller 4, but prevents the operative getting his or her hand near enough the nip to get caught in it. (22) Fences of this kind are in frequent use on upright calenders of this kind. (23) Since June 1944 a fence of this kind has been placed on the respondents' said calender at the nip between rollers 3 and 4. (24) Such fences are recommended in the interim report of the Committee on the guarding of Calenders and Extruders, which is No. 2 of appellant's productions. (25) The respondents' calender is the slowest moving type of calender and is much slower-moving than most calenders. (26) It has been in regular use since 1917, and has never caused an accident. (27) The respondents' factory has been regularly inspected by Government inspectors, and they made no complaints that the calender was dangerous; and did not require that it should be fenced."
The case further stated:—"I took the view, having regard to the simplicity of the process of placing the sheet of rubber in position on roller 4, and to the slowness of the rollers in revolution, that the nip between rollers 3 and 4 was not a dangerous part of the machinery within the meaning of section 14, subsection (1) of the Factories Act, 1937, and found the respondents not guilty of the contravention."
The question of law was:—"Was I entitled to find that the nip between rollers 3 and 4 of the respondents' upright calender was not a dangerous part of the said machinery, or ought I to have found it to have been a dangerous part of the said machinery?"
The case was heard before the High Court of Justiciary on 2nd and 6th February 1945.
LORD JUSTICE-CLERK (Cooper).—The necessary and sufficient condition for the emergence of the duty to fence imposed by section 14 of the Factories Act1 is that some part of some machinery should be "dangerous." The question is not whether the occupies of the factory knew that it was dangerous; nor whether a factory inspector had so reported; nor whether previous accidents had occurred; nor whether the victims of these accidents had, or had not, been contributorily negligent. The test is objective and impersonal. Is the part such in its character, and so circumstanced in its position, exposure, method of operation and the like, that in the ordinary course of human affairs danger may reasonably be anticipated from its use unfenced, not only to the prudent, alert and skilled operative intent upon his task, but also to the careless or inattentive worker whose inadvertent or indolent conduct may expose him to risk of injury or death from the unguarded part?
These propositions are fully vouched by the decisions both in Scotland and England to which we were referred, and they do no more than interpret and apply the manifest purpose which inspires Part II of the Act, viz.: to require anticipatory precautionary measures to avoid preventible accidents which can reasonably be foreseen.
In this case a girl employed to attend a calender had to feed a rubber sheet between two power-operated rollers 9-16ths of an inch apart. Her duty was "to place the rubber sheet on to roller 4 so that...
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