Norris v. Syndi Manufacturing Co Ltd

[1952] 1 All ER 935

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(Decision by: Denning LJ)

Norris
v Syndi Manufacturing Co Ltd

Court:

Judges: Somervell LJ

Denning LJRomer LJ

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

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Decision by:
Denning LJ

This power press was a dangerous machine which had to be securely fenced. It was provided with a perfectly proper guard, but, in order to comply with the Act, it was absolutely essential that the guard should be kept in position while the press was in motion: see s 16 and Nash v High Duty Alloys Ltd . The question in this case is: Whose duty was it to see that the guard was kept in position? Undoubtedly, it was the duty of the occupiers of the factory, but was it not also the duty of the man who was working the machine? The answer to this question is, I think, that the statute is quite imperative. It requires the guard to be kept in position while the press is in motion: see s 16. Ignorance of the statute is no excuse either for the occupiers or for the workman. If a guard is provided under the Act for the use of the workman, then he becomes under a statutory duty to use it. It is no defence for him to say that his employers did not insist on his using it. That goes to mitigation, not to exculpation. The learned judge seems to have thought that under s 119(1) a means or appliance was not "provided for the use of" the men unless the occupiers intended them to use it. I do not think that is correct. The true interpretation of the second part of s 119(1) is, I think, this: The occupier must provide the means or appliance required by the Act. Once he has provided a proper means or appliance in good condition and ready to hand in a proper place, then the workman comes under a duty to use it. This duty on the workman is imposed by the Act, not by the employer. The important thing is the intention of the Act, not the intention of the employer. If the Act intends the man to use it, then use it he must, no matter what the employer thinks about it, nor even what he says or does, so long as he does not actually forbid the man to use it. Acquiescence by an employer may mitigate the man's offence, but cannot absolve him of his duty.

We were reminded in this case that the Factories Act, 1937, creates criminal offences and that any ambiguity should be resolved in favour of the accused. I find it more helpful, however, to remember that the Act is intended to prevent accidents to workmen, and I think it should be construed so as to further that end: see what Lord Porter said ( [1951] 1 All ER 1107 ) in Harrison v National Coal Board which I quoted in McCarthy v Coldair Ltd . It would, I think, be unfortunate if little or no responsibility were to be placed on the workmen themselves. Once a proper guard is provided, then the men are just as responsible as the occupier for seeing that it is used. All the various regulations under the Act proceed on this basis: see, for instance, Wood-working Machinery Regulations, 1922 and the Horizontal Milling Machines Regulations, 1928. It is also, I think, the basis of s 119(1) of the Act itself. The words and deeds of the employer may have of course, a great bearing on the relative responsibilities. If the employer encourages the men not to use the guard that aggravates his responsibility and lessens that of the men, but it cannot take away their responsibility altogether: Clifford v Charles H Challen Ltd . What is the relative responsibility in the present case? The employers are mainly responsible because they set the man a bad example and acquiesced in his failure to use the guard, but the man himself was a skilled man who knew as much about the machine as his employers did, and he admitted that they never told him not to use the guard. They left him to take his own course for his own safety. He clearly failed to fulfil s 119(1), and I agree that the damages should be reduced by one-fifth on that account.