Richard Thomas & Baldwins Ltd v Cummings
| Jurisdiction | England & Wales |
| Judge | Lord Oaksey,Lord Porter,Lord Reid,Lord Tucker,Lord Keith of Avonholm |
| Judgment Date | 20 January 1955 |
| Judgment citation (vLex) | [1955] UKHL J0120-3 |
| Date | 20 January 1955 |
| Court | House of Lords |
[1955] UKHL J0120-3
House of Lords
Lord Oaksey
Lord Porter
Lord Reid
Lord Tucker
Lord Keith of Avonholm
Upon Report from the Appellate Committee, to whom was referred the Cause Richard Thomas and Baldwins Limited against Cummings, that the Committee had heard Counsel, as well on Monday the 18th, as on Tuesday the 19th and Wednesday the 20th, days of October last, upon the Petition and Appeal of Richard Thomas and Baldwins Limited, whose registered office is situate at 47 Park Street, London. W.1, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 24th of April 1953, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of William Cummings, 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 Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 24th day of April 1953, complained of in the said Appeal, be and the same is hereby, Reversed, and that Judgment be entered for the Defendants: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Courts below: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords.
This is an appeal from an order of the Court of Appeal affirming the judgment of Mr. Justice Pearson in favour of the Respondent for £325 and costs.
The Respondent's claim was for damages for personal injuries sustained on 12th February, 1951, whilst working as a fitter in the Appellants' works at Ebbw Vale, Monmouthshire. At the time of the accident the Respondent was about 50 years of age and had been employed by the Appellants for about 14 years, for the last eight to ten years of which he had been employed as a fitter, and at the time of the accident was earning about £10 0s. 0d. per week.
In the Appellants' premises at Ebbw Vale is a machine known as a Waldrich grinding machine which is used for grinding large and small rollers employed in the rolling of steel sheet. The machine is about 25 feet long and is driven by an electric motor, whose motive power is transmitted from a pulley on the motor, to a pulley on the machine by four belts riding in grooves in the pulleys. The distance between the centres of the two pulleys is 3 feet 3 inches, and the length of belting clear of the pulleys is 2 feet 6 inches. The belts and pulleys are entirely enclosed by a metal casing bolted to the floor. Photographs were put in evidence which showed the construction of the machinery.
Some time prior to the accident it was decided to fix a new drive to one of the rollers of the machine. This could not be done without stripping down the machine and removing the casing. All power was therefore cut off from the machine, the machine stripped down and the casing removed. The machine had been in this condition and incapable of use for a period of six weeks prior to the accident.
On 12th February, 1951, the Respondent was instructed to drill two holes in the face plate of the machine. This was part of the work connected with the proposed alterations to the machine. This work did not involve the restoration of motive power, and at no time was there any motive power connected to the machine. The Respondent was assisted in his work by his mate, who was also a fitter, and another man. After setting up a pneumatic drill on a fixed pillar beside the face plate, the Respondent moved the face plate into position for drilling the first hole, by pulling on the belts connecting the motor with the machine. He then drilled the first hole. After that it was necessary to move the face plate 180 degrees to bring it into position for drilling the second hole by again pulling on the belt. The Respondent did the pulling while his mate watched the face plate so as to tell the Respondent when the face plate was in the right position. The Respondent was pulling on the top side of the belt from left to right, i.e. away from the machine down towards the motor (which of course was not connected to any power or capable of working). He pulled several times (he did not know how often) without mishap but then when he pulled again his hand went too far and the fingers of his left hand became caught between the belt and the pulley wheel on the motor and the little finger of his left hand was injured and had subsequently to be amputated above the proximal interphalangeal joint. The accident occurred because instead of grasping the belt at the top (when he could have pulled for 2 feet 6 inches or so) he grasped it in the middle and started his pull from that point (which was of course nearer the bottom pulley) and did not remove his hand before it reached the bottom with the result that it was caught between the pulley and belt.
The Writ was issued on 4th January, 1952, and by it the Respondent claimed damages for negligence and breach of statutory duty. The Appellants' premises were a factory within the meaning of the Factories Act, 1937, and the duties alleged to have been breached were those imposed by sections 13, 14 and 16 of that Act, the material parts of which and of section 152 it is convenient to set out.
"(13) Transmission machinery—(1) Every part of the 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 …
(14) Other machinery—(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 …
(16) Construction and maintenance of fencing—All fencing or other safeguards provided in pursuance of the foregoing provisions of this Part of this Act shall be of substantial construction, and constantly maintained and kept in position while the parts required to be fenced or safeguarded are in motion or in use, except when any such parts are necessarily exposed for examination and for any lubrication or adjustment shown by such examination to be immediately necessary, and all such conditions as may be specified in regulations made by the Secretary of State are complied with …
(152) General interpretation—
'Machinery' includes any driving-belt: …
'Prime mover' means every engine, motor or other appliance which provides mechanical energy derived from steam, water, wind, electricity, the combustion of fuel or other source …
'Transmission machinery' means every shaft, wheel, drum, pulley, system of fast and loose pulleys, coupling, clutch, driving-belt or other device by which the motion of a prime mover is transmitted to or received by any machine or appliance:…"
Three questions have been argued in your Lordships' House, first, whether the Appellants were guilty of a breach of the statutory duty imposed by section 16 constantly to maintain and keep in position the fencing while the part required to be fenced was in motion or in use; secondly, whether, if not, the Appellants were guilty of negligence at common law; and thirdly, whether the Respondent was guilty of contributory negligence.
Upon the second and third questions I see no reason to differ from the judgments of the courts below.
The first question is, however, a question of importance.
Mr. Justice Pearson held that the pulley blocks and the pulley belt in between them were transmission machinery; that they were not necessarily exposed within the meaning of section 16; that they were in motion at the time of the accident unfenced, and that therefore the Appellants were guilty of a breach of section 16.
Lord Justice Singleton agreed that the machinery was transmission machinery or, if not, dangerous machinery, and rejected the Appellants' argument that sections 13 to 16 only refer to movement by mechanical energy as opposed to movement by hand. He therefore dismissed the appeal.
Lord Justice Hodson agreed in the result and that the machinery was transmission machinery and that the sections in question did not refer only to movement by mechanical energy.
Lord Justice Morris dissented on the ground that the transmission machinery was not in motion because no transmission was taking place from a prime mover.
In my opinion, the appeal must succeed.
Whether or not this machinery was transmission machinery when unconnected with a prime mover, it was clearly a dangerous part of other machinery within section 14 and therefore must be fenced. But the question, in my view, depends upon the true construction of section 16 and on that I am of opinion that the belt and pulley in question were not in motion or in use at the time of this accident, within the meaning of section 16. They were not in motion or in use for the purposes for which they were intended but for repair, and, in my opinion, section 16 does not prohibit the removal of fencing when such removal is necessary for repair. Any other construction of section 16 would prevent altogether the repair of dangerous machinery wherever such repair was not shown to be immediately necessary, unless such repair could be carried out without removing the...
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