Norris v. Syndi Manufacturing Co Ltd

[1952] 1 All ER 935

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(Judgment by: Somervell LJ)

Norris
v Syndi Manufacturing Co Ltd

Court:

Judges:
Somervell LJDenning LJ
Romer LJ

Hearing date: 6, 7, 21 March 1952
Judgment date: 21 March 1952

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Judgment by:
Somervell LJ

This is an action for damages for personal injuries based on an alleged breach by the defendants, the plaintiff's employers, of s 14(1) or s 16 of the Factories Act, 1937, and of their common law duty. The defendants denied liability, and, alternatively, alleged that the plaintiff was guilty of a breach of s 119(1) of the Act and of contributory negligence. Before the learned judge it became clear, subject to a defence of "delegation" which failed, that the defendants were liable under the Act. The learned judge also regarded them as having failed to provide a safe system of work. The learned judge found that the plaintiff had not committed a breach of s 119(1) and was not guilty of contributory negligence. He assessed the damages at £1,500. The defendants appeal and take three points. Counsel on their behalf submits (i) the damages are excessive, (ii) the plaintiff committed a breach of s 119, (iii) the plaintiff was guilty of contributory negligence. I will consider (ii) and (iii) first.

The plaintiff worked for the defendants as a tool setter. The defendants had a number of power presses and it was at one of these that the accident happened. In its normal operation metal strips are fed successively by the operator into the press. Pressure on a foot pedal causes the press to descend by electrical power, stamping the strip of metal into the required shape. It is not disputed that the machine has to be securely fenced under s 14(1) of the Act, and the fencing maintained and kept in position under s 16, subject to the exception under the later section that it may be removed for adjustment. The press had a proper guard or fencing. The plaintiff's work was to adjust and set the machine when this was required. To do this, admittedly, the fencing had to be removed. To test whether the setting had been properly done it was necessary to take one or more sample pressings. It was when engaged on taking such a sample pressing, the fencing or guard not having been replaced, that by some inadvertence the plaintiff pressed the pedal when his hand was within the area of the press and he had to have the top joints of three fingers on his right hand amputated. The replacing and removal of the fencing took some time, about five minutes. As it is sometimes necessary to take a dozen samples this would add an hour to the operation of setting the tools, though it was said that some adjustments could be done, though obviously less conveniently, through the bars of the fencing. It is not disputed that under the Act the fencing should have been in position when the plaintiff was taking samples. The relevant words of s 119(1) are as follows:

"... where any means or appliance for securing ... safety is provided for the use of [a person employed in a factory] under this Act, he shall use the means or appliance."

The plaintiff entered the defendants' employment in 1946. He then had no previous experience of power presses. He was shown how to set and test the tools by two of the directors. Neither of them replaced the guard while taking samples. He was told to make sure the guard was secure before the ordinary operator used the press. He must frequently have been seen by one of the directors taking samples with the fencing not in position. He was never told expressly not to replace it. I will read the paragraph of the learned judge's judgment in which he construed and applied s 119(1):

"In my judgment, an article is not 'provided' within the meaning of the Acts merely by supplying it and making it available. When the term is considered in the light of the policy of the Acts, I think that the article must be provided in a manner which makes it clear to the workman that he is expected to use it. That will not always involve an express oral direction. The purpose for which an article is supplied may often be too obvious for words. It is not so in this case. When the plaintiff was initiated into the use of the guard he was told to replace it after testing, and before operation was begun. That would convey to him (and the subsequent attitude of the defendants would amply confirm it) that the guard was intended for use in operation only, and that he was not expected to use it for testing. In these circumstances I do not think that the plaintiff broke s. 119(1) because he did not use the guard for a purpose other than that for which it was provided."

If the construction is right, I would agree with the conclusion. Counsel for the defendants submits it is wrong, and I have with respect come to that conclusion. The plaintiff here, of course, knew all about the appliance. He would have just removed it. It was at hand and available.

I will deal with the authorities. In Murray v Schwachman Ltd , although there was a fencing or guard on the premises, the plaintiff had been forbidden to use it. It was held that the result was the same as if it had never been provided at all. In Finch v Telegraph Construction & Maintenance Co Ltd the learned judge who tried the present case had to decide whether goggles had been provided under s 49 of the Act. He accepted evidence that there were goggles in the foreman's office, but he found that the plaintiff did not know where they were. He held, therefore, that they had not been provided. Neither of these cases, in my opinion, assist the plaintiff here. We were, however, referred to a dictum of Du Parcq LJ in Gibby v East Grinstead Gas & Water Co , agreed to by the other members of the court, which, undoubtedly, on the face of it supports the learned judge's construction. The deceased had met his death by falling from an unfenced gantry at night. The claim was based on breach of statutory duty and negligence. The defendants pleaded that the deceased was guilty of a breach of s 119(1) and of contributory negligence. The learned judge had found that there was no breach of statutory duty or negligence on the part of the defendants, and that the deceased had been guilty of contributory negligence as well as a breach of s 119(1). In the appeal the first judgments were delivered by Scott LJ and Goddard LJ. They dismissed the appeal on the ground that the plaintiff was guilty of contributory negligence, making no reference to s 119. Assuming, therefore, and on this point the defendants were not called on to argue, that the defendants had been guilty of a breach of statutory duty or negligence, the plaintiff's contributory negligence was at that date an answer to the whole claim. Du Parcq LJ dismissed the appeal on the same ground, but at the beginning of his judgment he dealt with the alleged breach of s 119. This was because the plaintiff had not used a hurricane lamp. Du Parcq LJ said he was "strongly inclined to disagree" with the judge on that point. He said this ( [1944] 1 All ER 363 ):

"I doubt very much whether the deceased, if he had lived, could have been convicted, on the known facts, of an offence under that section. It is not at all clear that the hurricane lamp of which we have heard so much was, within the meaning of that section, provided for the use of this workman, among others, under the Factories Act; and the further difficulty arises that he was not ordered to use it, or ordered to use it at any particular time. It was left to his discretion whether to use it or not."

The learned lord justice went on to express his doubts whether the plaintiff had committed any offence. He then considered contributory negligence, and that is clearly the ratio of his decision. The other members of the court expressed their agreement with what he had said with regard to s 119(1). One has to consider the words used in the light of the facts. It seems clear that hurricane lamps were available for this or other purposes. Some of the men who had to go on this gantry at night used their own torches. It may well be that, if one is dealing with an appliance of general use like a lamp, it is not "provided for use" under the Act for any particular operation unless its use is by instructions related to that operation. On this view the words used would have no necessary application to the facts here where the guard was part of the machine being used. If they were intended to be of general application, I find them difficult to reconcile with the words of the Act.

We are dealing here with a case in which the plaintiff knew all about the appliance. He had just removed it and it was at hand and available. Was an order by the defendants to use the guard for the process on which the plaintiff was engaged a condition precedent to liability as suggested? The duty of providing something and the duty of ordering it, if provided, to be used are two different things. If Parliament had intended the giving of an order to be a condition precedent to an offence it would, I think, have said so. I think the words of s 119(1) impose an absolute duty once it is established that the appliance was there and available. The plaintiff wanted to save time for his employers. The facts that the directors demonstrated his work to him without the guard and acquiesced in his not using it would be very relevant in considering whether it was a proper case for a prosecution, or whether, if proceedings were brought, any penalty should be imposed. They are also relevant to the question which we have to decide, namely, to what extent are the defendants entitled to say that the plaintiff should bear part of the damages. I cannot, however, find anything in the words of s 119(1) which enables it to be said that in the circumstances of this case no offence was committed under that sub-section.

Counsel for the plaintiff argued that an appliance could not be said to be provided for the plaintiff's use when it was indicated to him that he need not use it. I have come to the conclusion that the words "for the use of any such person", followed, as they are, by the words "under this Act" are simply to identify the category of persons within the scope of the section. The guard was "provided" in the ordinary sense of the word and under the Act it was the plaintiff's duty to use it. [His Lordship held that the plaintiff had not been guilty of contributory negligence, and that the award of £1,500 damages was not excessive, but that that figure should be reduced to £1,200 by reason of the plaintiff's breach of s 119(1), and to that extent the appeal should be allowed.]