Wearing v Pirelli Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Wilberforce,Viscount Dilhorne,Lord Simon of Glaisdale,Lord Kilbrandon,Lord Edmund-Davies |
| Judgment Date | 15 December 1976 |
| Judgment citation (vLex) | [1976] UKHL J1215-1 |
| Date | 15 December 1976 |
| Court | House of Lords |
[1976] UKHL J1215-1
House of Lords
Lord Wilberforce
Viscount Dilhorne
Lord Simon of Glaisdale
Lord Kilbrandon
Lord Edmund-Davies
Upon Report from the Appellate Committee, to whom was referred the Cause Wearing against Pirelli Limited, That the Committee had heard Counsel, as well on Monday the 8th, as on Tuesday the 9th, days of November last, upon the Petition and Appeal of Pirelli Limited of Thavies Inn House, 3-4 Holborn Circus, London, 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 January 1976, 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 Case of Hugh Wearing 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 January 1976, 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 Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
I have had the advantage of reading in draft the opinion of my noble and learned friend. Lord Edmund-Davies. I entirely agree with it and would dismiss the appeal.
My Lords,
On the 23rd August 1971 the respondent broke the scaphoid bone in his right wrist when he was working at a machine in the respondents' tyre-making factory at Carlisle.
An operator of that machine had first to cover a horizontal drum with a sheet of rubber about 1/16th of an inch thick. The drum was a few feet from the ground and he had to pull down a sheet of rubber from a roll and place one end of it on the drum. Then by pressing a button, he caused the drum to revolve slowly. When the rubber had gone round the circumference of the drum, he stopped the machine, cut the rubber from the roll and joined the two ends together so that the whole of the smooth cylindrical drum had a coating of rubber. The rubber sheeting extended about 6 inches beyond each end of the drum. Then when that was done, he caused the machine to place a beading made of rubber and metal over the rubber sheeting at each end of the drum.
The next operation was to turn the rubber extending beyond the ends of the drum, which has been called the skirt, over the beading. The machine was designed to do this automatically but it did not do so satisfactorily and the operator was required to give some manual assistance. There was a bobbin attached to the machine which was designed to press against the inside of the skirt and turn it over the beading but the operator had to help in the folding process. He was supplied with a tool which was produced for us to see. It had a handle of about five inches in length, sufficiently long to be held in one hand but not long enough for both hands to hold it. The photographs produced showed the operator to be holding it in both hands with one hand placed above the other. To the handle was fixed a metal wheel on a spindle. The wheel was of about 2 inches in diameter and had a milled edge. In the centre of it a ball bearing was to be seen and there did not appear to be anything provided to stop dirt getting into the bearing and clogging it.
The operator had to press a button which started the drum revolving at high speed, 430 r.p.m. and the bobbin to begin to operate. As it was revolving at this high speed, the operator had to place the wheel of the tool against the inside of the skirt and pull it outwards. Hollings J., the trial judge, was satisfied that while he was doing this, the operator's hands stayed outside the drum. Two things are obvious, first, that in view of the length of the tool, while the wheel was pressing against the skirt, the operator's hands must have been in close proximity to the rapidly revolving drum, and secondly, that the wheel on the hand tool must revolve when it is pressed against the skirt at far more than 430 r.p.m.
On the 23rd August 1971 as he was using the tool, the respondent felt a jerk and his hand then came in contact with the beading round the drum. He suffered a small friction burn but it was not until October that it was discovered that he had broken the bone in his right wrist. As the hand tool was being used, jerks were sometimes felt as a result of the wheel catching in the skirt which sometimes happened when there was an irregularity in the rubber. When this happened, there was evidence that the effect was to knock the operator's hand downwards and away from the drum. The judge consequently regarded this accident as an exceptional one. The respondent thought that the jerk was caused by the wheel of the tool catching in the rubber. The possibility that it was caused by the rapidly revolving wheel on the hand tool jamming was not explored.
Two and a half years later, on the 21st January 1974, the respondent issued a writ claiming damages for personal injury, alleging that the appellants had been guilty of a breach of statutory duty and of negligence. It was alleged that they had failed to comply with section 14(1) of the Factories Act 1961 which reads as follows:—
"(1) 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."
and that they were negligent, inter alia, in failing to provide proper or safe equipment for the respondent and in failing to provide a safe system of work.
For there to be a breach of section 14(1) there must be a dangerous part of machinery and a part which can be identified as such. Particulars were sought by the appellants of the parts of the machine alleged to be dangerous and of the type and position of the fence or guard which it was said should have been provided. In answer, it was stated that "the dangerous parts were the rotating mechanism of the said machine". What was meant by rotating mechanism was not stated. The drum was mentioned twice in paragraph 2 of the Statement of Claim and if it was the respondent's case that the revolving drum was a dangerous part, that could and should have been clearly stated.
At the trial an expert witness gave evidence for the respondent. He was asked the following questions:—
"Q. There is a rotating mechanism on this drum, and it can clearly be seen from the photographs that it is unguarded. That is right, is it not?
A. Yes. There are no guards at all on this machine.
Q. In your view is this a dangerous part of the machinery which is revolving?
A. Yes, Sir."
The photographs do not reveal any rotating mechanism on the drum but they show unguarded rotating mechanism inside it. Later answers of this witness showed that he thought that that required to be guarded. What is significant is that it was put to this witness in chief that something on, (perhaps there was a typing error for "in") the drum was a dangerous part and this witness did not assert that the smooth cylindrical drum was itself a dangerous part.
This witness also maintained that the edge of the drum which would be exposed when the skirt was folded over was also a dangerous part. Hollings J. did not find that the rotating mechanism in the drum was a dangerous part or that the edge of the drum was. He held that the risk of injury being caused by the operator being drawn into contact with the drum in the way in which the respondent's hand and wrist came in contact with the beading was so remote as to be unforeseeable.
A Mr. Pearson, who had operated a similar machine for a considerable period, said that there was a risk of injury from the revolving drum and Hollings J. held that there was a foreseeable risk of injury caused by friction burns from the revolving drum but he did not say in terms that the smooth drum was a dangerous part. He dismissed the respondent's claim on the ground, which it would seem was the appellants' main contention, that the respondent's injury was caused not by a dangerous part of the machinery but by the material on it which was not part of the machine.
He also dismissed the respondent's claim based on negligence. In the Court of Appeal Stephenson L.J. thought that he was right to do so. Nevertheless it appears to me that it was a possible view that the injury was caused, not by the revolving drum being itself a dangerous part of machinery, but by the failure to provide a proper system of working, in that the operator was required to put his hands in close proximity to the drum with the result that there was a risk of a friction burn. It is, however, unnecessary to consider this aspect of the case further for the dismissal of the claim at common law was not challenged in this House.
Stephenson L.J. in the course of his judgment said that Hollings J. had found, and the appeal to the Court of Appeal had to be decided on the basis, that the revolving drum was a dangerous part, a finding that, he said, counsel for the appellants had not felt able to challenge and so one which consequently cannot be challenged in this House. So one must proceed to consider this case on the basis that it was not the system of working that brought about the injury and that the drum itself...
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