Sparrow v Fairey Aviation Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE DEVLIN,LORD JUSTICE DANCKWERTS |
| Judgment Date | 27 July 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0727-3 |
| Court | Court of Appeal |
| Date | 27 July 1961 |
[1961] EWCA Civ J0727-3
In The Supreme Court of Judicature
Court of Appeal
From: Mr. Justice Streatfeild, Middlesex)
Lord Justice Sellers
Lord Justice Devlin and
Lord Justice Danckwerts
Mr. PETER PAIN (instructed by Mr. W. H. Thompson) appeared on behalf of the Appellant (Plaintiff).
Mr. DESMOHD ACKNER. Q. C. (instructed by Messrs. Hextall, Erskine & Co.) appeared on behalf of the Respondents (Defendants).
: The appellant worked for the defendants on a turret lathe and in course of his work on the 27th September, 1956, he met with an accident in circumstances and with a result which he could only vaguely describe. At the time a metal disc 4 3/4 inches in diameter, with a central hole 2 1/2 inches in diameter, was being made into a petrol Tiller cap and was attached in the chuck of the lathe by three jaws gripping the inside of the hole and with their ends lying l/l6th-inch from the outer surface of the component. Whilst the chuck, with the component part so held, was revolving at 500 revolutions per minute, the plaintiff used a scraper against the front edge of the hde in order to remove a slight projection and smooth it out.
I quote from the judgment findings which we have not been asked to review: "The plaintiff himself does not know how the accident happened, but what he told me was that somehow the tool seemed to get caught. He thought it had caught against one of the jaws and "before he knew where he was his left hand had been flung against something. He does not know what it was whether it was flung against the component gripped in the jaws or whether it was flung against the face of the chuck. I think, and I am satisfied, that the probability of the accident is that it did occur because the point of the tool, as he was holding it, caught against the jaw inside the hole of the component and that, of course, threw the tool out of control, and it may well have been that the hand hit the component or the face of the chuck. The hand did not come into contact with the jaws themselves inside the hole, but I think the point of the tool did, and it was in that way that this accident happened.
The learned judge found that the jaws were a dangerous part of machinery when revolving at speed and his finding was accepted and unchallenged before this court. He also found that the jaws (the dangerous part of the machinery) were fenced by the component part which the jaws were holding in position.
The learned judge asked: ".… if this was a dangerous part, was it so fenced as to prevent the body of the operator coming into contact with it?". He answered the question in this way: "As I have indicated, I think that, in a sense, it was fenced by the component itself, that being the fence which in fact did prevent the body of the operator coming into contact with the dangerous part. It would appear to have fulfilled section 14 of the Factories Act. What happened here may be a very fine distinction, but here a part, which was a dangerous part and which was fenced in such a way as to prevent the body of the operator or some part of his body coming into contact with it, in fact was not so fenced as to prevent a tool coming into contact with it, and I am afraid, that with some reluctance, I must give effect to the submission of Mr. Ackner that that is the answer to it on the facts. If the injury was caused by the tool rather than some part of the plaintiff's body coming into contact with the dangerous part that is not enough. Under those circumstances, as I have said with some reluctance, I feel bound. to hold that the dangerous part was fenced sufficiently within. the meaning of section 14 of the Factories Act".
The question on appeal is, therefore, whether or not, on the facts found, the plaintiff proved a breach of section 14 of the Factories Act, 1937, and injury to himself resulting there from.
It is not a case where part of the machinery itself flew out or broke and came away and injured him or where the material or component part which was being worked at the time caused the accident. The plaintiff was injured when he was doing his work at the machine in the manner in which he was required and expected to do it and, as the judge has found, without any negligence on his part. The learned judge has held that there was a dangerous part of the machinery which required fencing and which was securely fenced by the component part itself to prevent the plaintiff's fingers or hands or other parts of his body from contact with the jaws but which was not securely fenced for the operation which the plaintiff was properly performing with a small tool or scraper. Workmen are often, I imagine, required to use tools of some kind or perhaps to use an oil can, with moving machinery and it would be strange if the secure fencing which he section requires were not to be adequate to protect them in the task they were normally called on to perform and having regard to the manner in which it was to be done.
This is not, I think, a case where it could be said that the risk of such an accident was not reasonably foreseeable, applying the principles of ( Walker v. Bletchley Flettons Limited 1937 1 All England Reports, page 170) and ( John Summers &Sons Ltd. v. Frost 1955 Appeal Cases, page 740). Clearly the learned judge did not think so, for he thought there might have been liability at common law if such a claim had been pursued The revolving jaws were only l/l6th-inch from the place where the tool had to be applied and it might well have been foreseen that the scraper might be struck, although apparently there was no history of such an accident. The probable consequences of it being struck are not so easy to envisage but that damage of some kind might result would seem likely.
The recent case in the House of Lords, ( Close v. Steel Company of Wales Limited 1961 2 All England Reports, page 953), relied on by the respondents. does not seem to me to be against the appellant's contentions. There, part of the drill shattered and flew outwards from the machine. In ( Nicholls v. F. Austin (Leyton) Limited 1946 Appeal Cases, page 493), which was fully considered by the House in Close's case along with intervening decisions of this court, the workman had been injured by a piece of wood which was being processed and was ejected from a circular saw; that also therefore is a different case.
We were referred in argument to the words used by the noble Lords in Nicholls' case and cited in the Close decision by lord Morton on page 963, as follows; "Lord Macmillan said: 'The obligation under section 14 to fence the dangerous part of a machine, as I read it, is an obligation so to screen or shield the dangerous part as to prevent the body of the operator from coming into contact with it, and this obligation was in the present instance amply fulfilled'.
"Lord Simonds said: 'I find nothing in this language to suggest that the section aims at protecting the worker from any indirect danger arising out of the functional operation of the machine. If there was any ambiguity, it would be set at rest by the proviso, which provides that "In so far as the safety of a dangerous part cannot by reason of the nature of the operation he secured by means of a fixed guard, the requirements of this sub-section 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'1. These last six words make it clear that the security at which the substantive part of the sub-section aims is security from unintentional or I suppose even intentional contact with a dangerous part. The fence is intended to keep the worker out, not to keep The machine or its product in
"Lord Uthwatt said: 'Section 14, sub-section (l), applies to "every dangerous part of any machinery other than prime movers and transmission machinery". That dangerous part-is to be securely fenced unless it — that is, the dangerous part — is in such a position or of such construction as to be safe. The proviso to the sub-section is of assistance. Where a fixed guard is not practicable as respects a dangerous part, the provision of a device which prevents contact between the operator and that part is to satisfy the obligation contained in the leading provision of the sub-section. The prevention of contact between the worker and the dangerous part is. to be sufficient'".
I do not think the noble lords in their reasoning in the Nicholls case had in mind the circumstances which exist here or were intending to express an opinion which would affect them. "The worker", as Lord Uthwatt uses the word, would have included, I should have thought, the worker doing his work in the manner in which he was equipped for doing it, including his clothing, whether special equipment or not, and any tool or material the Process necessitated.
The case of Eaves v. Morris Motors Limited (recently in another division of this court) also differs from the present There the thing which caused the accident was material case. being processed, namely a holt or bolts secured in the machinery, which for the reasons given did not call for protection under section 14.
Here the dangerous parts, the jaws, did on the judge's finding require fencing under section 14 but that which was found to be effective fencing against direct contact with parts 0f the body did not protect the workman from danger having regard to the manner in which he was required to work, namely with a tool.
For the appellant it was urged. that the finding that the component part provided an efficient fence to the extent the judge held was erroneous and unjustified, but I do not think the judge's finding in that respect should be disturbed. The first sentence of section 14...
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