Neil v Greater Glasgow Health Board
| Jurisdiction | Scotland |
| Judgment Date | 27 April 1994 |
| Date | 27 April 1994 |
| Docket Number | No 23 |
| Court | Court of Session (Outer House) |
OUTER HOUSE
Lord Abernethy
ReparationNegligenceBreach of statutory dutyDuty to make and keep working place safe so far as reasonably practicableAccident unforeseeableWhether reasonable foreseeability relevant to duty to make and keep working place safeFactories Act 1961 (9 & 10 Eliz II, cap 34), sec 29(1)2
Section 29(1) of the Factories Act 1961 provides that: 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 in a hospital when part of a machine he was working on tipped. He brought an action of damages against his employers based on common law negligence and a breach of sec 29(1). After the accident, the defenders clamped the machine to the floor. The Lord Ordinary held that the accident was unforeseeable and accordingly the common law case was not made out. The defenders argued that reasonable foreseeability of the accident occurring in the manner it did was a relevant factor to be taken into account in assessing liability under sec 29(1). The defenders accordingly averred that it was not reasonably practicable to do any more than was done by the defenders because the defenders could not reasonably ever have anticipated such an accident occurring. The pursuer argued that reasonable foreseeability was irrelevant to the question of whether the statutory duty had been met.
Held (1) that to introduce the test of reasonable foreseeability into the word safe in sec 29(1) was to import into a section whose dominant purpose was to protect the workman words which were not there (but could easily have been put there if Parliament had so wished) and the effect of which had to be to reduce that protection to no more than that afforded by the common law; (2) that, the test of reasonable foreseeability was, accordingly, irrelevant for the purposes of sec 29(1); (3) that the onus was upon the defenders to aver and prove that it was reasonably practicable for the defenders to make and keep the pursuer's working place safe; (4) that the test of reasonable foreseeability could not be introduced to the test of reasonable practicability by the averments of the defenders directed to the anticipation of the accident occurring; (5) that whether the pursuer's place of work was safe was a question of fact; (6) that the sec 29(1) test was whether it was reasonably practicable in terms of time, trouble and expense to take the measures required to make and keep the place of work safe; and (6) that the clamping of the machine to the floor had been a reasonably practicable step for the defenders to take and could have been taken before the accident to prevent it from happening, it being a quick, simple and inexpensive operation; and decree pronounced accordingly.
Authorities considered.
Robert Gerald Neil brought an action of damages against his employers, Greater Glasgow Health Board, in respect of injuries sustained by him when part of a machine he was working on tipped over. The pursuer based his claim on common law negligence and a breach of sec 29(1) of the Factories Act 1961.
The cause came to proof before answer before the Lord Ordinary (Abernethy).
Cases referred to:
Edwards v National Coal BoardUNK [1949] 1 All ER 743
Keenan v Rolls Royce LtdSC 1969 SC 322
Larner v British Steel plcUNK [1993] 4 All ER 102
Mitchell v North British Rubber CoSC 1945 JC 69
Morrow v Enterprise Sheet Metal Works (Aberdeen) LtdSC1986 SC 96
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
At advising, on 27 April 1994 the Lord Ordinary dismissed the common law case but pronounced decree for damages in respect of the statutory case.
LORD ABERNETHYOn 1 March 1991 the pursuer was working as a machine operator in the defenders' central laundry at Ruchill Hospital, Glasgow. The laundry was a large one and handled the laundry not just of Ruchill Hospital but of various other hospitals as well. There were a number of different machines in the laundry. One of them was called a Spencer Aquatrac. It was a sophisticated, electronically operated machine. It handled a heavy workload. Its capability was some 15 loads every hour. Each load contained a dry weight of about 35 kilograms of laundry. The machine operated some seven hours a day, five days a week. It was estimated that on average about 110,000 items were put through the machine every week.
The laundry was fed into the machine in batches of about 35 kilograms from the floor above. After having been washed it emerged into a pre-press where some of the water was removed and the load was moulded into a shape which was described as resembling a wedding cake. It then passed to another press, called a membrane press, where most of the remaining water was removed and the load was compressed into a shape like a pancake. From the membrane press it was fed on to a conveyor known as the inclined conveyor. As its name suggests, this was at an incline and it conveyed the load up a conveyor belt and on to another conveyor. This was known as a shuttle conveyor and it operated at right angles to the incline conveyor. It took the load along to one of the driers into which it was fed for drying. The system worked by a series of electronic signals given at the appropriate moment, which set in motion the next part of the machinery. Thus the inclined conveyor was set in motion by a signal from the membrane press that there was a load ready for it. The shuttle conveyor came into operation when it received a signal that there was a load to be taken from the inclined conveyor. But if by any chance the shuttle conveyor had a load on it already or was not in position to receive the load a signal would stop the load at the top of the inclined conveyor. A further signal informed the shuttle conveyor when a drier, and which drier (there were two at the time) was available and delivered the load to that drier.
At that time the inclined conveyor was free-standing in the sense that it was not fixed to the floor. There was a small gap at its lower end between it and the membrane press. On the recommendation of the Health and Safety Executive a grille had been fitted by the defenders to cover that gap and so prevent access to the roller machinery at that end of the conveyor. The grille was secured on the one side to a grille which the manufacturer had put at the membrane press and on the other side by a clamp on the inclined conveyor itself. At the top end of the inclined conveyor there was a small gap between it and the shuttle conveyor and the level of the latter was slightly lower than that of the former. The top of the inclined conveyor was some seven and a half feet above ground level and a fence of almost that height was positioned between the inclined conveyor and the shuttle conveyor, so preventing access to the latter....
Occasionally, as with any machine, the process did not work entirely smoothly and it was part of the pursuer's job to check the progress of the laundry through it. On the date in question the pursuer was standing near the inclined conveyor a little to its left as one looks towards the shuttle conveyor. He turned away as he noticed some washing piling up on an adjacent machine. Just then he saw in the corner of his eye some movement from the inclined conveyor of the Spencer Aquatrac machine. It was the inclined conveyor tipping over towards him. Initially he tried to get out of the way but then he realised it was tipping over only slowly so he tried to get back to it in order to right it again. But that did not succeed so he got out of the way. In the course of all this he sustained an injury to his lower back and to his right knee.
The inclined conveyor ended up at an angle of some 20 degrees from the vertical with its upper part against the high fence which ran between it and the shuttle conveyor. It was somewhat slewed and the bracket which held the grille at its lower end was twisted. It was resting on two feet instead of four. There was a load of laundry partly on the inclined conveyor and partly on the shuttle conveyor. Some of it had become wedged between the shuttle conveyor and the inclined conveyor.
The defenders employed both a mechanical engineer, a Mr Gillies, and an electrical engineer, a Mr Cullen, at the laundry. They were both at the scene very shortly after the accident but neither could discover what had caused it. After the load had been removed the machine operated normally. No fault was discovered. Attempts were made to simulate it but without success. It was, as Mr Gillies put it, still puzzling us. It had never happened before and has not happened since. Never before had the cause of any failure in the machinery not been discovered. It seems, however, and I so hold, that the probable sequence of events was that the load was not fully transferred from the inclined conveyor to the shuttle conveyor before the latter proceeded to move towards the driers. As it did so, that part of the load which was not on the shuttle conveyor became trapped against the top of the inclined conveyor and caused it to tip over. It is likely that all this was due to some transient electronic fault either in the shuttle conveyor or in the inclined conveyor or in both. I do not think it is possible on the evidence to say more than that.
[His Lordship then dealt with the evidence in detail and continued:]
After the accident the inclined conveyor was clamped to the floor of the laundry in order to stop it tipping over as it had done on this occasion. Photographs 2 and 3 of the photographs attached to No 18/7 of process show these clamps. They were easily fitted. If they had been there at the time of the accident, they...
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