Finch v. Telegraph Construction and Maintenance Co Ltd

[1949] 1 All ER 452

(Judgment by: Devlin J)

v. Telegraph Construction and Maintenance Co Ltd

King's Bench Division

Devlin J

Hearing date: 20, 21 January 1949
Judgment date: 21 January 1949

Judgment by:
Devlin J

The plaintiff is a plater who was at all material times employed by the defendants at their factory. On 20 December while he was engaged in the process of dry grinding a metal cylinder (he says on a double machine grinder), he got a foreign body into his eye, either a piece of the bobbin which he was grinding or a piece of the grinding itself, and it is in respect of that accident that he brings this action. It is pleaded in two ways. In the first place, he claims that there was a breach of statutory duty under the Factories Act, 1937, s 49, which provides:

"In the case of any such process as may be specified by regulations of the Secretary of State, being a process which involves a special risk of injury to the eyes from particles or fragments thrown off in the course of the process, suitable goggles or effective screens shall, in accordance with any directions given by the regulations, be provided to protect the eyes of the persons employed in the process."

By the schedule to the Protection of Eyes Regulations, 1938 (S R & O, 1938, No 654), the processes to which s 49 applies include

"Dry grinding of metals or articles of metal applied by hand to a revolving wheel or disc driven by mechanical power."

[His Lordship reviewed the evidence as to the machine on which the plaintiff had been working at the time of the accident, found that it was a double grinding machine, and proceeded:] It is not disputed by counsel for the defendants that the Act and regulations apply, and, accordingly, what I have to consider is whether, on the facts in the present case, suitable goggles were provided to protect the eyes of the workman. On that point there has been a conflict of evidence. The workman's case is that goggles for grinding (that is, with plain glass only) were not provided in the shop in which he worked, and were not, in fact, used. On that he has called, to support his evidence, four fellow workmen, who testify the same thing. The defendants' case rests on the evidence of their foreman, Mr Stanley, who agreed that it was not generally the practice to use goggles for grinding in the workshop, but, he said, they were used by some men and on long jobs. He agreed that he rarely, if ever, used them himself, but he says that they were available. Originally a pair of goggles had been hanging up beside the double grinding machine, but, owing to the fact that they were carelessly handled while in that position, he hung them inside his office which was about 30ft from the machine. He did not take any steps at the time he removed the goggles from their place to make it known to the workmen generally that he had moved them to the office, but he says that the men generally knew where the goggles were and could get them if they so desired. I do not think he said that the plaintiff, in particular, knew where the goggles were. I am not prepared to reject Mr Stanley's evidence that a pair of grinding goggles was hanging up on a nail inside his office, but I think that it is very probable that they were not in a very conspicuous place. I am satisfied by the evidence of the workman and the witnesses who were called for him that neither he nor the majority of the men knew where the goggles were and that they were actually rarely used.

In those circumstances I have to consider whether that was a "providing of goggles" within the meaning of s 49 of the Act of 1937. I have listened to the careful argument of counsel for the defendants, but I have come to the conclusion that it was not a "providing." Of course, goggles would be "provided" if they were given to each man individually. I do not think that is the only way in which they could be "provided," but, in my view, in order to "provide" them within the meaning of the Act it would be necessary either that they should be put in a place where they come easily and obviously to the hand of the workman who is about to grind, or, at the very least, that he should be given clear directions where he is to get them. Accordingly, I think there has been a breach of s 49.

It is unnecessary to say very much about the alternative provision, about the "safe system of work," but it might be convenient if I expressed my view about that. I find there was no safe system of work in this workshop with regard to the provision of goggles. I accept the evidence, which was not contradicted, of Mr Thomas, a consulting engineer who was called by the workman that the process of grinding, whether done on the double grinder or by portable grinder, is a dangerous process. Mr Stanley, the foreman, admitted that he did not consider it any part of his duty to see that goggles were used. There was not at the time, although there is now, a notice on the machine directing the attention of the men to the fact that the goggles should be used. According to Mr Stanley, it was simply left to each man to ask for goggles if he wanted them. In my judgment, that is not providing a safe system of working, or any system of working at all, and I shall find for the workman on that issue also.

There is a plea of contributory negligence in the defence, the contributory negligence pleaded being that the workman failed to make use of the goggles provided for his use, which he well knew were kept hanging on a hook inside the door of the foreman's office. I have found that the workman did not have that knowledge, and, accordingly, all that can be left of the allegation is that he failed to make use of goggles which were hanging on a hook inside the door of the foreman's office. In substance the suggestion must be that he, being a man of experience, should know that it was or might be dangerous to work without goggles and ought to have asked for them, and that it was his failure to ask for them that was the cause of the accident. I cannot accept that as being contributory negligence, since it is the duty of the defendants to provide the goggles. The contributory negligence as alleged merely consists in the workman's failure to ask the defendants to do their duty. I do not think that that failure amounts to contributory negligence. Accordingly, the workman succeeds on the issue of liability. On the whole I am satisfied that an award of the sum of £10 would be sufficient to cover the irritation and inconvenience which was caused to him. Accordingly, there will be judgment for the plaintiff for £10.

Edgedale: I have to ask for an order that the costs should be on the High Court scale. There was sufficient reason for bringing the action in the High Court. My instructing solicitors had before them the report of Dr Preston, in which it was said that this was obviously a very serious matter.

DEVLIN J: Could you help me on the meaning of "sufficient reason" in the County Courts Act, 1934, s 47(3)(a). There may be a sufficient reason for bringing an action in the High Court, although very small damages are awarded. Is "sufficient reason" confined to that sort of thing, or is it sufficient reason to bring an action in the High Court that it looks to the plaintiff's advisers as if he might well recover more than £200 damages, although later it turns out that that is a mistaken view?

Edgedale: I do not think there is any authority about it. It is a matter of the construction of the County Courts Act, 1934, s 47(3). The question is whether there is "sufficient reason for bringing the action in the High Court," and that, in my submission, means any sound reason for doing so. There is nothing in the section to limit the word "reason" to a reason based on the number of persons affected or the importance of the matter. If the reason is purely frivolous-supposing that it is obvious the plaintiff cannot recover more than £50-the action ought not to be brought in the High Court, but no one would say, in the present case, on the evidence of Dr Preston, that this action ought not to have been brought in the High Court. The purpose of the section is to prevent vexatious litigation. I should submit that this was eminently a case which it was proper to bring in the High Court.

Everett: It is submitted that an action cannot be brought in the High Court merely because, on information which the plaintiff has, it appears to be a matter of substance. "Sufficient reason" in s 47(3)(a), means something out of the ordinary, a point of law of general importance, or a case which, plainly on the face of it, is a matter of very great moment.

DEVLIN J: It is not a very easy point, but on the whole I find that there is no evidence here on which I am justified in departing from the normal consequence arising from my judgment. I give judgment for the workman for £10 and costs.