Sparrow v Fairey Aviation Company Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord MacDermott,Lord Morris of Borth-y-Gest,Lord Hodson,Lord Guest |
| Judgment Date | 18 October 1962 |
| Judgment citation (vLex) | [1962] UKHL J1018-1 |
| Court | House of Lords |
[1962] UKHL J1018-1
House of Lords
Lord Reid
Lord MacDermott
Lord Morris of Borth-y-Gest
Lord Hodson
Lord Guest
Upon Report from the Appellate Committee, to whom was referred the Cause Sparrow against Fairey Aviation Company Limited, that the Committee had heard Counsel, as well on Tuesday the 17th, as on Wednesday the 18th and Thursday the 19th, days of July last, upon the Petition and Appeal of Leslie Frederick Sparrow, of 130 Wigley Road, Hanworth, Middlesex, 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 27th of July 1961, 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 Petitioner 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 Case of Fairey Aviation Company 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 Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 27th day of July 1961, 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 it is 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 was injured while working at a turret lathe in the Respondents' factory on 27th September, 1956. He was turning a large number of soft metal discs for petrol filler caps for aircraft. At the last step of this operation the disc had become a ring some four inches in diameter with a central hole about two inches in diameter. It was held in place on the chuck by three jaws which gripped the inside of the central hole, and the outer surface of the disc only projected about one-sixteenth of an inch beyond the outer surface of the jaws. When the accident happened the chuck, with the jaws and disc, was revolving at about 500 revolutions per minute and the Appellant was using a hand scraper about eight inches long to smooth off some irregularities on the disc. He held the scraper with both hands, his left hand being only a few inches from the revolving disc. It would seem that the scraper slipped into the central hole and was struck by one of the jaws and thrown aside. The result was that the little finger of his left hand came against the disc or the face of the chuck and was severely lacerated.
Although this method of working might seem to be dangerous the Appellant abandoned his case at common law and no doubt there was some good reason for this. The only question which we have now to determine is whether the Respondents were in breach of section 14 of the Factories Act, 1937. Streatfeild, J. held that they were not, and that decision was affirmed by the Court of Appeal (Devlin and Danckwerts, L.JJ., Sellers, L.J. dissenting).
The relevant part of section 14 is:
"Every dangerous part of any 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."
One might perhaps have expected that it would have been pleaded that the whole of the chuck, including the jaws, was a dangerous part of the machine in view of the speed at which it revolved. But it is only alleged that the jaws were dangerous, and there may be some good reason for that. So we must decide the case on the footing that no part of the Appellant's body ever came into contact with the dangerous part of the machine. The accident was caused by the tool which he was holding coming in contact with the dangerous part and being thrown aside so that his hand slipped forward and was injured by contact with a part which was not dangerous and which therefore there was no obligation to fence.
If I had simply to go to the words of the statute unaided by authority I would find it difficult to see any answer to the Appellant's case. The jaws were dangerous. They were not fenced. And they were not as safe to the Appellant as they would have been if securely fenced. The Appellant was not negligent and in the course of his ordinary work his hand was injured as a result of the tool which he was using coming in contact with the jaws.
But this section has been the subject of three decisions of this House, and the Respondents' contention is that those decisions establish that the only duty under the section is to fence against contact of any part of the worker's body with the dangerous part. They say that owing to the position of the disc held by the jaws the man's hand could not come in contact with the jaws without some reckless act on his part and so there was no duty to fence. Or alternatively they maintain that even if there was a duty to fence they are not liable for the damage caused by this accident because they can only be liable for damage resulting from contact of some part of the workers body with the dangerous part. I must, therefore, examine these authorities.
In Nicholls v. F. Austin (Leyton) Limited [1946] A.C. 493 the worker was injured by a piece of the material on which the machine was working flying out and striking her, and it was held that there was no liability under the statute. Lord Simonds said:
"The fence is intended to keep the worker out, not to keep the machine or its product in".
In reaching that result much importance was attached to the proviso to subsection (1) and to subsections (2) and (3) of section 14. I am bound to say that that surprises me. No one appears to have considered the earlier history of this section. The first general provision with regard to fencing was introduced in 1891 as an amendment to particular provisions in the 1878 Act. Then in the consolidating Act of 1901 section 10 (1) (c) is identical, apart from verbal changes, with the first part of section 14 (1) of the 1937 Act. But the 1901 Act appears to contain nothing corresponding to the proviso to section 14 (1) or section 14 (2) or 14 (3) of the 1937 Act. So if the presence of those provisions turned the scale in Nicholls' case�and an examination of the speeches in this House suggests to me that it may well have done so�that would mean that by inserting them Parliament narrowed the meaning of "securely fenced" and thereby deprived workers of part of the protection they had enjoyed before these provisions were inserted. I find it impossible to believe that Parliament could have intended to do that.
The fact that a strong argument has not been taken into consideration may not diminish the authority of a decision of this House, but in my view it must at least entitle one to refuse to extend the decision so as to cover cases substantially different in their facts. And there were reservations about Nicholls' case in Carroll v. Andrew Barclay & Sons, Ltd. [1948] A.C. 477. But the recent decision in Close v. Steel Company of Wales [1961] 3 W.L.R. appears to me to establish beyond question that section 14 only requires a dangerous part of a machine to be fenced for the purpose of preventing a worker from coming in contact with it. That clearly appears from the speeches of all the three noble Lords who formed the majority, and there are frequent references to the body of the operator coming in contact with the dangerous part.
In all these cases the contrast was between injury to the worker by contact with the dangerous part of the machine and injury from something flying out from the machine. The present case does not fit either of these categories: the Appellant's injury resulted from a tool which he was holding coming in contact with the dangerous part. But in my view Close's case must be treated as a positive decision that the only duty under the statute is to fence against contact of the worker with dangerous parts of a machine, and therefore the only question left is what can properly be regarded as contact of the worker with the dangerous part.
The Appellant argues that this cannot be limited to contact between some part of his body with a dangerous part. Part of a man's clothing may be caught in an unfenced but dangerous part of a machine and this may cause him to fall in such a way that he sustains serious injury. I would agree that it would be absurd to say that such a man has no remedy under the Act merely because no part of his body actually touched the dangerous part of the machine. And then the Appellant goes on to ask�if contact with a man's clothing is sufficient why is contact with a tool which he was holding insufficient? It was at that point that there was a difference of opinion in the Court of Appeal, and I do not find this question at all easy to answer. I do not think that it can be answered satisfactorily in a logical way. It is too late to question the rule which this House laid down in Close's case, and we must do our best to apply it in a practical way. Fencing against a man's body and fencing against his clothing coming into contact with machinery would hardly differ. But fencing against anything which he is holding coming into contact with the machinery might be a very different matter. I appreciate the view of Sellers L.J. that the section is for the protection of workers and that qua worker a tool which a man is using is as much part of him as his clothing. But a line must be drawn somewhere, and I could not distinguish between a small tool as used in this case and anything else which a man...
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