Nicholls v F. Austin (Leyton)
| Jurisdiction | England & Wales |
| Judge | Lord Thankerton,Lord Macmillan,Lord Wright,Lord Simonds,Lord Uthwatt |
| Judgment Date | 12 April 1946 |
| Judgment citation (vLex) | [1946] UKHL J0412-1 |
| Date | 12 April 1946 |
| Court | House of Lords |
[1946] UKHL J0412-1
House of Lords
Lord Thankerton
Lord Macmillan
Lord Wright
Lord Simonds
Lord Uthwatt
After hearing Counsel as well on Tuesday the 12th, as on Thursday the 14th, days of March last, upon the Petition and Appeal of Margaret Jane Smith Nicholls, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 23d of October 1944, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of F. Austin (Leyton) Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal, in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 23d day of October 1944, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal, be, and the same is hereby, dismissed this House: And (by consent) it is hereby Declared, that on the 29th of May 1943, the Appellant received personal injury by accident arising out of and in the course of her employment with the Respondents, and that the Appellant has claimed and received the payments due to her under the Workmen's Compensation Acts, 1925 to 1943, under which the Respondents admit their liability for the incapacity for work caused by the said personal injury, and is earning not less than her average pre-accident weekly earnings computed in accordance with the said Acts, but, inasmuch as it appears that there is a reasonable probability that further incapacity may result in the future from the said personal injury, it is Ordered, That, in such event, the Appellant shall be at liberty to apply to the appropriate County Court in accordance with the said Acts for further compensation thereunder: And it is also further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The Appellant claims damages against the Respondents in respect of personal injuries sustained by her while employed as a factory hand at their factory. On 29th May, 1943, while employed at a woodworking machine known as a straight line edger, the Appellant's ring and middle fingers of her left hand were injured, the middle finger being severely injured.
The machine in question consisted of a circular saw, fitted on a table, and driven by an electric motor. The front edge of the saw is about two feet from the front of the table, at which the operator stands. The wood to be worked is conveyed from the front of the table, which is 38 inches from the floor level, towards the cutting edge of the saw by a mechanical conveyor, driven by a separate gearing, and by rollers which assist the conveyor. There is a metal hood over the whole of the rollers, conveyors and circular saw. In the front of the machine there is a self-adjusting guard in the form of a row of metal fingers, which rests on the top of the ingoing wood. There is a space of about four inches between the bottom edge of the hood and the surface of the table. The four-inch gap might be reduced by the depth of the ingoing slab. At the time of the accident, it appears that the Appellant was engaged in feeding wooden slabs about 12 to 15 inches long, about nine inches in width and two inches in depth, which were being cut into strips for chair bearings. There does not seem to be much doubt that the Appellant's hand was struck by an off-cut from the left-hand edge of the slab, which flew out—probably through the space at the left-hand side of the machine between the bottom of the hood and the surface of the table. In the course that the case has taken, that would appear to be a sufficient statement of the circumstances at the time of the accident, since, although the Appellant originally maintained that the fencing of the circular saw did not comply with Regulation 10 of the Woodworking Regulations (S.R. & O. 1922, No. 1196), and that the Respondents were therefore in breach of their statutory duty thereunder, this contention was negatived by Stable J., who tried the case, and was not maintained in the Court of Appeal or before this House.
The main case of the Appellant rests on an alleged breach by the Respondents of statutory a duty imposed on them by section 14 of the Factories Act, 1937, in that they failed to fence the saw so as to prevent the danger of material which is being operated on being ejected by the machine and causing injury. Alternatively, the Appellant seeks to impose liability on the Respondents at common law, in respect of their negligence in supplying improper plant, by supplying a machine which was dangerous and unsafe.
Section 14 of the Factories Act, 1937, provides as follows:—
"14.—(1) Every dangerous part of any machinery, other than 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:
Provided that, in so far as the safety of a dangerous part of any machinery cannot by reason of the nature of the operation be secured by means of a fixed guard, the requirements of this subsection shall be deemed to have been complied with if a device is provided which automatically prevents the operator from coming into contact with that part.
(2) Where the Secretary of State is satisfied that there is available and suitable for use in connection with machinery of any class any type or description of safety device which—
( a) prevents the exposure of a dangerous part of machinery whilst in motion; or
( b) stops a machine forthwith in case of danger,
he may make regulations directing that the type or description of device shall be provided for use in connection with such class of machinery as may be specified in the regulations:
Provided that, in any proceedings in respect of a contravention of this subsection, it shall be a sufficient defence to prove that a device at least equally effective was being used in connection with the machinery in respect of which the contravention occurred.
(3) Any part of a stock-bar which projects beyond the head-stock of a lathe shall be securely fenced unless it is in such a position as to be as safe to every person employed or working on the premises as it would be if securely fenced.
The Secretary of State may, as respects any machine or any process in which a machine is used, make regulations requiring the fencing of materials or articles which are dangerous while in motion in the machine."
The Woodworking Regulations of 1922 were made under section 79 of the Factory and Workshop Act, 1901, which Act was repealed by the Factories Act, 1937, but, by section 159 (1) of the Act of 1937, it was provided that any regulation made "under any Act repealed by this Act which is in force at the commencement of this Act shall continue in force and shall have effect as though it had been made … under this Act, and, in so far as it could have been made … under a particular provision of this Act, shall be deemed to have been made … under that provision.…" Section 60 of the Act of 1937 gives a general power to the Secretary of State to make special regulations for safety or health, and under subsection (2) (c) it is provided that such regulations may "modify or extend with respect to any class or description of factory any provisions of Part I, Part II or this Part of this Act, being provisions imposing requirements as to health or safety," which include section 14 of the Act.
At the trial, the first point argued before the learned Judge was whether the obligation to fence imposed by subsection (1) of section 14 is an obligation not only to protect against direct injury by contact with the machine, but also against indirect injury from something that flies off from the machine. The learned Judge accepted the wider construction. The second point was whether the result of the provisions of section 60 (2) ( c) as to modification of the provisions of the Act was that the Woodworking Regulations of 1922, in effect, became substituted for section 14, so that compliance with the Regulations operated as a discharge of the obligations imposed by section 14. The Respondents maintained that the Regulations did so operate, and that it had been so decided by the Court of Appeal in Miller v. William Boothman & Sons [1944], K.B. 337. In that case a workman had had his thumb taken off by the cutting edge of a circular saw; the saw was fitted with a guard of the best standard pattern in existence which complied with Regulation 10 of the Woodworking Regulations, 1922, but, of necessity, part of the cutting edge of the saw was exposed when in use. It was admitted that Regulation 10 had been complied with, and the Court of Appeal held that Regulation 10 modified the provisions of subsection (1) of section 14, and that the defendants had not committed a breach of a statutory obligation. The learned Judge distinguished the case of Miller from the present case, on the ground that in Miller's case they were dealing with the direct danger from the cutting edge of the saw, against which the Regulation had specifically prescribed the dimensions and nature of the guard to be provided, whereas, in the present case, the Regulations were silent about the indirect danger of bits of wood thrown out at the side of the...
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...cause"; but we do not think that for present purposes the criticism is material. We feel little doubt that prior to the decision of Nicholls v. Austin in 1946 and the possible effect of the addition of the proviso to section 14(1) of the Consolidating Act of 1937 the law was that for the pu......
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