Whitfield v H. & R Johnson Tiles Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BELDAM,SIR ROGER ORMROD,LORD JUSTICE PURCHAS |
| Judgment Date | 02 March 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0302-2 |
| Docket Number | 90/0189 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 March 1990 |
[1990] EWCA Civ J0302-2
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
BIRMINGHAM DISTRICT REGISTRY
QUEEN'S BENCH DIVISION
HOBHOUSE J.
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Beldam
and
Sir Roger Ormrod
90/0189
MR. NICHOLAS WORSLEY (instructed by Messrs Tinsdill Hollinshead & Moody, Stoke-on-Trent) appeared on behalf of the Appellant (Plaintiff).
MR. ROGER S. GILES (instructed by Messrs William F. Hatton & Co., Dudley) appeared on behalf of the Respondent (Defendant).
On 1st March last year at Birmingham Crown Court Hobhouse J. gave judgment in this action in favour of the defendant. The plaintiff now appeals to this court. The defendant is a well known company in the pottery industry specialising in the production of tiles. It has nine factories in the Stock-on-Trent area and employs about 3,000 people. As in most other industries, the production of tiles has in part at least become automated and the sorting and packing of tiles is done by a process using a conveyor belt. In some of the defendant's factories tiles were brought to the conveyor belt on another conveyor belt; in others they were stacked in rows on trolleys which were placed at the end of the belt. Each trolley contained about 6,000 tiles. A general view of the defendant's factory with the tiles on the trolleys can be seen in the coloured photograph No. 1. In the factories where the tiles were brought on trolleys it was necessary to unload them from the trolleys by hand and place them on the conveyor belt. The work of sorting and packing was done by teams of five workers, one of whom was allocated the task of unloading the trolleys. Some teams consisted of men and some of women, and some were mixed. The work of unloading the tiles from the trolleys was more arduous than the work of sorting and packing. In the teams consisting entirely of men one man would be employed throughout a shirt unloading and transferring the tiles to the conveyor belts. The teams of women organised the work so that they took it in turns during the shift to unload the tiles. Thus each member of the team would be doing unloading work for about one and a half hours.
The teams were paid on. a piecework basis but, because at least one of the objects of the process was quality control, the sorting of other defective from the good tiles generally controlled the rate of progress. Nevertheless the member of the team who unloaded the tiles from the trolley to the conveyor belt was expected to keep pace with the rest of the team.
According to Mr. Brindley, the defendant's health and safety adviser, the task of unloading tiles onto the conveyor belt had been done by women for at least thirty-five years at one or other of the defendant's factories. At the time when he joined the defendant in the early 1950s, women were doing the work in two of the defendant's factories. By 1984 there was only one team which consisted entirely of women. In those terms where there were both men and women, men did the work of unloading the tiles. From about April 1984, the tiles with which the plaintiff had to deal were 6" tiles. Previously they had been 4.1/4" tiles. Although the 6" tiles were heavier than the 4.1/4" tiles, each 6" tile weighing about 1/2 lb., the change in size is of no particular significance because it was left to the unloaders themselves to select a comfortable and convenient number to place onto the conveyor belt at any give time. The unloader would start unloading from the top of the load and, in the case of men, would select about 80 tiles at a time and transfer them to the conveyor belt. The work involved picking up the tiles using both arms and turning through approximately 135–180 degrees and placing the tiles on the conveyor belt. The women, including the plaintiff, would select fewer tiles—probably about 50. As they weighed 1/2 lb. each the total weight was some 25 lbs. The rate of work was such that the plaintiff would, on average, place three or four armfuls on the conveyor belt each minute.
The tiles, arranged in rows, were divided by hardboard separators. An armful of tiles was referred to as "bung". As can be seen from the coloured photograph, each trolley contained four rows of tiles, each about six tiles high. When the loader reached the last row he would have to bend down and across the trolley in order to lift them and place them on the conveyor belt. It was the practice for the loaders to move the tiles towards them on the. bed of the trolley before lifting. But nevertheless the lifting of the last row of tiles was more awkward than lifting those nearer to the conveyor belt. On the evidence the judge found that approximately 150 tiles would be moved each minute and so it would take about 40 minutes to clear a trolley.
By 1984 the plaintiff had worked for the defendants for some eleven years. She was 36 years of age and 5'2" high. She had, since birth, suffered from a condition of incomplete formation of the lower spinal column which reduced the load bearing strength and durability of her back. One of the major ligaments was missing and extra stress was placed on the facets of the vertebrae. Degenerative changes were present in the small joints of the lumbar spine and there was some wasting of her right leg. The learned judge found that the congenital condition of the plaintiff's back made her specially vulnerable to injury. Later in his judgment he described the condition as being one in which almost any incident of every day life might trigger the osteoarthritis that sooner or later she was going to suffer in any event owing to the congenital weakness of her spine. It was common ground that the defendant neither knew nor had any reason to suspect this weakness.
In spite of the condition of her back, it was the plaintiff's evidence that she had had no trouble in doing the job of unloading the tiles onto the conveyor belt. She picked up the number of tiles that suited her and she knew that she could cope with, and she had had no problems in lifting the tiles and no problems with her back. If the load was too heavy, she would put it back on the truck and take a smaller quantity. She had not found it difficult or awkward to lift an appropriate quantity of tiles from the back of the truck.
At about 11 a.m. on 14th December 1984 the plaintiff was loading tiles from the trolley onto the conveyor. She had dealt with the majority of the load and bent down to lift the last stack of tiles. As she bent forward and took hold of them, she had only lifted them a few inches when she felt a pain in her back and right leg. She was unable to continue work and reported to the defendant's first aid post. Three days later, on 7th December, she consulted her G.P. After a period of rest she felt sufficiently recovered to return to work but six or seven weeks later it was clear that she could no longer continue. Consequently she left the defendant's employment. Fortunately she was eventually able to get work which did not involve her in any continuing loss of earnings.
In these proceedings the plaintiff claims that the accident to her and the onset of pain which she suffered was caused by breach of statutory duty and negligence of the defendant. At common law she claimed that the defendant had exposed her to an unnecessary risk of injury by employing her to lift and carry the bungs of tiles from the truck to the conveyor belt. They failed to instruct or supervise her properly and required her to operate a system of work which was unsafe. She also contended that the defendants were in breach of duty under section 72 of the Factories Act 19 61 because they required her to move or lift a load which was so heavy as to be likely to cause injury to her. The learned judge rejected both claims. Although he found on the evidence that the job did involve a risk of injury that was foreseeable, he held that the reasonably prudent employer would not regard it as necessary to take precautions to guard against it. He drew attention to the fact that, following the introduction of the 6" tiles, 15 women had done the plaintiff's job every day for about eight months without any accident or complaint. Since the accident the same or a lesser number of women had been lifting bungs of tiles every day; again without any accident or injury being suffered. The only accident that had occurred was the one in which the plaintiff was involved and she was a person with a congenital condition of her back which made her specially vulnerable. In addition Mr. Brindley gave evidence that women had been doing the job for some thirty-five years. He had made enquiries back to 1981 and there had been no record of any complaints of stress or strain, injury or accident. So the learned judge held:—
"On these facts there is no adequate basis for holding that the defendants failed to act reasonably and failed to take reasonable care. The system of work proved itself and the explanation of the occurrence of this accident is not want of reasonable care on the part of the defendant but congenital weakness of the back of the plaintiff which manifested itself on this occasion".
The judge also said that if he had found that the system of work was not safe, it would have been comparatively simple for the defendant to have avoided the risks involved by ensuring that only men did the work of unloading the tiles from the trolley to the conveyor belts. Before us it was argued that the learned judge's finding that the job involved a risk of injury which was foreseeable was...
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