Richard Thomas & Baldwins Ltd v Cummings
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SINGLETON,LORD JUSTICE HODSON,LORD JUSTICE MORRIS |
| Judgment Date | 24 April 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0424-4 |
| Court | Court of Appeal |
| Date | 24 April 1953 |
| Docket Number | 1952. C. No. 61 |
[1953] EWCA Civ J0424-4
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Singleton,
Lord Justice Hodson
and
Lord Justice Morris
MR. H I. NELSON, Q. C., and MR. GERWYN P. THOMAS (instructed by Messrs. Kenneth Brown, Baker, Baker, agents for Messrs. Gee & Edwards, Swansea.) appeared on behalf of the Appellants.
MR. MARVEN EVERETT, Q.C., and MR. GERAINT REES (instructed by Messrs. W. H. Thompson) appeared on behalf of the Respondent.
This case is not free from difficulty. The Plaintiff, Mr. William Cummings, is an experienced filter, 51 years of age. He was employed by the Defendants, Richard Thomas & Baldwins, Ltd., for a number of years, and he met with an accident on the 12th February, 1951. There was a grinding machine in the Defendants' factory and the little finger of the Plaintiff's left hand was caught between the belt and the pulley, and he suffered some damage and pain. He brought an action alleging breaches of the provisions of the Factories Act, 1937, on the part of his employers, and alleging negligence. The issue as to negligence was not seriously raised. The learned Judge said that he was not by any means satisfied there was any negligence on the part of the employers. The issue has not been argued in this Court, though Mr. Marven Everett, who appeared for the Plaintiff, said (for some reason that I do not entirely understand) that he desired to keep the matter open.
On the claim made by the Plaintiff that his employers were in breach of statutory duty, the learned Judge found in his favour, and he awarded damages to the Plaintiff amounting to £325. The employers appeal against that Judgment, and Mr. Nelson on their behalf submitted to this Court that Mr. Justice Pearson had arrived at a wrong conclusion, and that this Court ought to enter Judgment for the Defendants. He submitted further, that even if it could be said that there was on the part of the Defendants a breach of the duty which by statute they owed to their employees, the real cause of this accident was negligence on the part of the Plaintiff himself, and that this Court ought to say so, either by finding him wholly to blame or at least partly to blame.
The machine which I have mentioned was a power drivenWaldrick grinding machine, part of which consisted of a face plate rotated by means of belts and pulleys. On the day of the accident something had to be done to this machine. It had not been used for the ordinary purposes of transmission machinery for some weeks. Some part of it had to be replaced, and it was necessary that in the face plate there should be drilled two holes, one directly opposite the other. One of these holes had been drilled immediately before the accident, and at the time of the accident the face plate was being turned around so as to get it in position for the making of the other hole in the correct place. Two men were engaged upon that work: one was the Plaintiff; the other was a man who was doing the actual drilling with the help of an electric apparatus which was fixed nearby. The Plaintiff's work at the time was to cause the face plate to be moved round to the accurate position. It is accepted by the Defendants that the right way of doing that in the circumstances was to pull on one of the belts by which and through which power normally was transmitted. The motive power or mechanical energy was cut off from the machine so that if you wanted to move the face plate it had to be done by hand, and it could be done by a pull on the belt. The Plaintiff pulled on the belt with his left hand. The machine, according to him, was not working very evenly, and his little finger was caught between the belt and the pulley.
That is the accident which happened, and the case made by the Plaintiff in this Court and before the learned Judge is based upon the safety provisions of the Factories Act, 1937. Those provisions are in Part II of the Act, and in Sections 12 to 16. Section 12 provides for the fencing of fly-wheels directly connected with any prime mover and every moving part of any prime mover.
Section 13 deals with transmission machinery. Subsection (1) reads: "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." It is said that the machine in which the hand of the Plaintiff was caught was transmission machinery. It was submitted by Mr. Nelson on behalf of the Defendants that though it might properly have been regarded as transmission machinery at one time, it was not transmission machinery within the meaning of this Section at the time the accident took place. Section 14 deals with other machinery. Subsection (1) provides: "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.
The scheme of those three sections is, that by Section 12 prime movers much be securely fenced, and by Section 13 transmission machinery must be securely fenced; the reason being that it is presumed that fly-wheels on prime movers are dangerous parts of machinery, and transmission machinery is a dangerous part of machinery; it is assumed that they are dangerous for the purposes of Sections 12 and 13. By Section 14, every dangerous part of machinery in a factory is to be securely fenced. It is a question of fact in that case whether the machinery with which the Court is concerned is dangerous machinery. The submission on behalf of the Plaintiff is that if the machinery on which this accident happened was not transmission machinery, then it was dangerous machinery within the meaning of Section 14.
The other section to which I must refer is Section 16,which provides: "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." I need not read further. The object of Section 16 is to ensure that the guard or safety provision or safety device is of substantial construction and is constantly maintained and kept in position while the parts required to be fenced are in motion or in use.
It was submitted by Mr. Marven Everett that when the Plaintiff pulled the belt he caused motion within the machinery or he moved a part of the machinery; that consequently you had either (a) transmission machinery in motion, or (b) dangerous machinery in motion. The submission made by Mr. Nelson was, as I have said, that this was not transmission machinery, that it was not dangerous machinery, that in any event it could not be said that it was machinery of either class in motion at the time of this accident.
Transmission machinery is defined in Section 152 of the Act in this way: "'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." It is not disputed that this machine was machinery within that definition at the time that it was coupled up and working by means of mechanical energy. Prime mover is defined in the same section as follows: "'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." "Machinery" by the same defining section "includes any"driving belt".
We have been supplied with photographs of this machine. The first one shows the belt where the hand was caught. The second one shows the same part with a guard. The fourth one shows the side of the machine without a guard.
I have reached the conclusion that this was transmission machinery though power had been cut off from it some time before the accident happened. I do not think that it thereby ceased to be transmission machinery.
Mr. Nelson's argument was that there must be some limit placed upon the words, otherwise you would have to regard something of this kind as transmission machinery if it was on its way to the works or if it had reached the factory yard and was placed there; and, again, if it was dismantled wholly or in part, one part could still be regarded as a part of transmission machinery.
It seems to me that it is a question of fact for the Judge in the case of machinery of this kind, to consider on the precise words of Section 13 whether or not that on which an accident happens is a part of the transmission machinery at the time the accident happened, not a moment or a second before or afterwards. If the machinery is in the factory ready for use by mechanical energy, I should think, as the learned Judge thought, that it remains transmission machinery. If it was dismantled to an extent, the Court would decide whether in the circumstances some part of it which was there still was a part, not of transmission machinery, but a part of the transmission machinery, taking the precise words of the Act. I think this was.
Then it is said that it was not in motion, and Section 16 provides that the safeguard or fencing shall be constantly maintained and kept in position while theparts required to be fenced or safeguarded are in motion or in use. It was not contended that the transmission machinery was in use at the time, but it was submitted on behalf of the Plaintiff that it was in motion when it was put into motion by the Plaintiff,...
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