Harrison v Metropolitan Plywood Co

Harrison v Metropolitan Plywood Co

INDUSTRY: TORTS; Statutory Duty: EMPLOYMENT; Other Employment

KING’S BENCH DIVISION

HILBERY J

6, 7, 8, 30 NOVEMBER 1945

Factories – Dangerous machinery – Absolute duty – Cutter of spindle moulding machine – Whether guard provided most efficient guard – Whether duty

extends to employee other than operator – Absolute liability under Factories Act, 1937, s 14, modified by Woodworking Machinery Regulations, 1922 reg 17 –

Factories Act, 1937 (c 67), ss 14, 60 – Woodworking Machinery Regulations, 1922 (SR & O, 1922, No 1196), reg 17.

A part of the blade of a vertical spindle moulding machine, at the defendants’ factory, broke away and the plaintiff, who was at work as a press operator at the

next machine, was injured by one of the pieces which flew out of the holder. The plaintiff claimed damages from the defendants for, inter alia the alleged

breach of their statutory duty under the Factories Act, 1937, s 14, and the Woodworking Machinery Regulations, reg 17, 􀂭 243􀀉 which requires the provision,

for that type of machine, of “the most efficient guard” having regard to the nature of the work being performed. It was contended on behalf of the defendants

(i) that they had complied with the regulations, and (ii) if they had not, the plaintiff had no remedy for breach of the regulations because the provisions of the

Factories Act, 1937, s 14, were ousted by the regulations, which were for the protection only of the worker at a particular machine. The ring guard (said to be

the “usual” form of guard for that type of machine) employed at the time was a guard only against certain dangers to which the worker at the machine would

be exposed, and there was a known form of cage guard, the subject of an illustration in a Home Office Safety Pamphlet, which would have fenced the major

part of the circle round the vertical spindle with a wire-mesh screen without interfering with work on the machine:—

Held – (i) The guard employed at the time of the accident was not “the most efficient guard” and there had been a breach of the regulations.

(ii) the modification effected by the regulations was a modification of the standard of fencing and not an elimination of certain classes of workers in the

factory from a right to such protection as the modified fencing would afford, and therefore the plaintiff had a right to maintain an action for damages resulting

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Preamble

to him from a breach of the statutory regulations.

Miller v William Boothman & Sons Ltd and Nicholls v Austin (Leyton), Ltd distinguished.

Notes

This is an interesting point on the extent of the duty to fence given by the Woodworking Regulations in substitution for the statutory liability under the

Factories Act, 1937, s 14. It is held that the protection given by the statutory duty to fence is not limited to the worker at a particular machine but extends to

all workers in the factory.

As to Absolute Duty to Fence Dangerous Machinery, see Halsbury, Hailsham Edn, Vol 14, pp 594, 595, para 1130; and for Cases, see Digest, Vol 24, pp

908–910, Nos 65–76.

Cases referred to in judgment

Miller v William Boothman & Sons Ltd [1944] 1 All ER 333, [1944] 1 KB 337, 113 LJKB 206, 170 LT 187.

Nicholls v Austin (Leyton) Ltd [1944] 2 All ER 485, [1945] 1 KB 50, 114 LJKB 21, 171 LT 353.

Action

Action to recover damages for personal injuries. The plaintiff claimed that his accident and injury were the result of (i) a breach of statutory duty on the part

of the defendants, his employers, or (ii) alternatively, a breach of their duty to him at common law. The facts are sufficiently set out in the judgment.

S R Edgedale for the plaintiff.

Phineas Quass for the defendants.

Cur adv vult

30 November 1945. The following judgment was delivered.

HILBERY J. At the time of the accident of which he complains the plaintiff was employed as a press operator by the defendants at their factory at Leonard

Street, London, EC2. The factory is a woodworking factory to which the Woodworking Regulations made pursuant to the Factories Act, 1937, apply.

On 19 June 1944, the plaintiff was at his work as a press operator at his machine in the defendants’ factory. The next machine to the one which the

plaintiff was working was a spindle moulding machine driven by mechanical power. A part of the blade of the vertical spindle moulding machine suddenly

broke away, the pieces flew out of the holder and one of them buried itself in the muscles of the plaintiff’s thigh. Those are the short facts.

If the plaintiff is entitled to succeed the proper sum to be awarded as damages, in the view which I take of the medical evidence and that of the plaintiff,

is £125. I have no hesitation in accepting the evidence of Dr Gilchrist and my view—formed after listening to all the evidence—coincides with the opinion

which he formed, namely, that the plaintiff had recovered from his injury and was fit for his old work by November 1944, though he might from time to time

have some slight pain in the region of the scar. There was no diminished earning capacity attributable to the accident after November 1944.

The claim is put on two grounds, (1) for breach of statutory duty and (2) for breach of common law duty. The statutory duty said to have been broken is

more particularly the duty laid upon the defendants by the Woodworking 􀂭 244􀀉 Machinery Regulations, reg 17, which reads as follows:

‘The cutter of every vertical spindle moulding machine shall when practicable be provided with the most efficient guard having regard to the nature

of the work which is being performed.’

It is admitted that this regulation applied to the machine which caused the accident; but it is said, firstly, that the defendants complied with the

regulations, and secondly, that if they did not the plaintiff—who was not working at the machine—has no remedy for breach of the regulation since this is one

of a set of special regulations which are substituted for and oust the provisions of the Factories Act, s 14, and that these special regulations are all for the

protection of the worker at the particular machine for the fencing of which the regulations provide, and are not intended to give a remedy when they are not

complied with to anyone except the worker at the particular machine which is shown not to have been fenced or guarded in accordance with these regulations.

On further consideration I have come to the conclusion that the second contention is not well founded, and that unless the first contention prevails, the plaintiff

has a right to succeed.

The duty laid upon the occupier in terms by the Factories Act, 1937, s 14, is to fence securely:

‘… every dangerous part of any machinery, other than prime movers and transmission machinery … 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 obligation imposed is to fence dangerous parts of any machinery—save for such machinery as is expressly excepted—so as to make it secure, and not

only secure for the worker at the particular machine which is dangerous, but secure for every person employed or working on the premises.

Sect 60 of the Act, however, provides as follows:

‘(1) Where the Secretary of State is satisfied that any manufacture, machinery, plant, process, or description of manual labour, used in factories is of

such a nature as to cause risk of bodily injury to persons employed in connection therewith, or any class of those persons, he may, subject to the

provisions of this Act, make such special regulations as appear to him to be reasonably practicable and to meet the necessity of the case.’

The section goes on to provide that such regulations may:

‘(2)(c) modify or extend with respect to any class or description of factory any provisions of Part I, Part II or this Part of this Act, being provisions

imposing requirements as to health or safety.’

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The statutory regulations for the use of woodworking machinery—non-compliance with which by the defendants the plaintiff says was the cause of his

injury—are the regulations made under these provisions.

In those circumstances the Court of Appeal has said, and I quote the judgment of Goddard LJ (as he then was), in Miller v Boothman ([1944] 1 All ER

333, at p 335):

‘In our opinion, these regulations must be regarded as modifying the provisions of sect. 14 in respect of these machines and of substituting the

prescribed guarding and fencing for the absolutely secure fencing which the section would otherwise require. It is difficult, indeed, to see what other

object these regulations could have …’

And then a little further on:

‘To anyone reading them it could not but appear that, provided he followed the provisions of the regulations and saw that his saws were constructed

and protected in accordance therewith, he was fulfilling his duties under the Act.’

Those statements were quoted with approval as a statement of the law by MacKinnon LJ in Nicholls v Austin (Leyton) Ltd.

Now in Miller’s case and in Nicholls’ case, the Court of Appeal was dealing with a case where the employer—the occupier of the factory—had complied

with the requirements of the Woodworking Regulations, which the court was saying had been substituted for the absolute duty to fence securely imposed by

sect 14 so far as concerned the provision and maintenance of a proper guard on the machine. The Court of Appeal was not considering what the situation was

in a case where the duty to guard substituted by the special regulations for the duty imposed by sect 14 had not been complied with. Indeed 􀂭 245􀀉 Goddard

LJ in his judgment, speaking of these regulations says ([1944] 1 All ER 333, at p 335):

‘… if their object and result be not what we have said, they would, indeed, be little better than a trap for factory owners. To anyone reading them it

could not but appear that, provided he followed the provisions of the regulations and saw that his saws were constructed and protected in accordance

therewith, he was fulfilling his duties under the Act.’

Nor did the Court of Appeal, in either of the two cases I have just been considering, decide more than this, that the Woodworking Regulations were a

code defining the employers’ duty to fence which had been lawfully substituted, wherever they were applicable, for the absolute duty to fence so as to make

the particular machinery secure which had originally been imposed by sect 14. In other words, the substitute regulations deal with the nature and extent of

fencing which must be provided and maintained on each kind of woodworking machine. The Court of Appeal did not decide that, because the nature and

extent of the fencing which had to be provided was described by regulations, the terms of which indicated that their primary purpose was the protection of the

workers at the machines, therefore, they were not also intended to be a protection to other workers in the factory.

No doubt the primary consideration, where woodworking machinery is concerned, is the protection of the worker at the machine. The very fact that he

works at the machine exposes him to particular risks. One would, therefore, expect, as the fact is, that the regulations would everywhere provide for securing

as high a degree of safety for him as practicable. But it does not necessarily follow that the regulations must, therefore, be construed as only for the protection

of the workers at the machines, and not for the benefit and protection of other workers in the factory as well. The modification effected by the regulations is a

modification in the standard of fencing; it is not an elimination of certain classes of workers in the factory from a right to such protection as the modified

fencing will afford. I am, therefore, of opinion, that the plaintiff here has a right to maintain an action for damages resulting to him from a breach of the

statutory regulations in question.

The question that then remains is whether or not the plaintiff has established a breach of these regulations. Reg 17 requires the provision for the machine

in question of the most efficient guard having regard to the nature of the work being performed. It was proved that there was a known form of cage guard

which would have fenced the major part of the circumference of a circle round the vertical spindle with a wire-mesh screen, and that the work in hand could

have been performed with that guard in position. Such a guard is in fact the subject of an illustration in the Safety Pamphlet No 8, issued by the Home Office.

It was further clear from the evidence that the so-called ring guard employed at the time was only a guard against certain dangers to which the worker at the

machine would be exposed if it were not there; but there was no evidence that it was “the most efficient guard.” When asked whether it was, the expert called

for the defendants replied that it was a “usual” form of guard for such a machine.

On the evidence on balance I think it is just established that the plaintiff probably would not have sustained his injury if the regulation had been complied

with. The result is that, as in my view the plaintiff is not precluded from alleging that at the time of his accident he belonged to a class of persons for whose

protection the Woodworking Regulations were made, he is entitled to succeed.

This view of the matter makes it unnecessary for me to decide whether the plaintiff could have succeeded in a claim based on breach of the defendants’

common law duty apart from statutory regulation. There must be judgment for the plaintiff for £125, with costs.

Judgment for the plaintiff with costs.

Solicitors: Shaen Roscoe & Co (for the plaintiff); Davies, Arnold & Cooper (for the defendants).

R Boswell Esq Barrister.

􀂭 246􀀉

[1946] 1 All ER 247

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