Norris v. Syndi Manufacturing Co Ltd

[1952] 1 All ER 935

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(Judgment by: Romer LJ)

Norris
v Syndi Manufacturing Co Ltd

Court:

Judges: Somervell LJ
Denning LJ

Romer LJ

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

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Judgment by:
Romer LJ

The only point on which I find myself at variance with the judgment of the learned judge is with regard to the meaning and effect of s 119(1) of the Factories Act, 1937, and I propose to confine my observations to that question. [His Lordship read the relevant part of the sub-section and continued:] The learned judge held that, although a guard was, in fact, fitted to the press which the plaintiff was using for testing purposes at the time of the accident, it cannot be regarded as having been "provided" within the meaning of the sub-section, and, accordingly, the plaintiff, in not making use of it, was not in breach of the statutory obligation which the sub-section imposes. Devlin J said with regard to this:

"In my judgment, an article is not 'provided' within the meaning of the Acts merely be 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."

The learned judge then went on to say that that was not so in this case on the ground that the plaintiff was impliedly told by his employers that the guard was intended for use in operation only and that he was not expected to use it for testing. If the learned judge had found (which he did not find) that the employers told the plaintiff that he was not to use the guard during the process of testing, then Murray v Schwachman Ltd is authority for the proposition that the guard was not, quoad that process, "provided", on the obvious ground that a thing cannot be regarded as provided for use if a prohibition is placed on its user. That was not, however, the case here, and the argument which was advanced before us (and which is, I think, supported by the language of the learned judge which I have quoted) is that an employer does not "provide" a safety device within the meaning of s 119(1) unless he tells the workmen concerned that they have got to use it. I am unable to find any sufficient warrant for that view. The primary meaning of the word "provide" is to "furnish" or "supply", and, accordingly, on the plain, ordinary interpretation of s 119(1), a workman's statutory obligation is to use safety devices which are furnished or supplied for his use by his employers. I am aware that the section, being a penal section, has to be construed strictly, but I cannot see any reason why that should involve reading into it words that are not there, particularly when the section makes perfectly good sense without them. I respectfully adopt the words of Lord Macmillan in London & North Eastern Ry Co v Berriman , where he said ( [1946] 1 All ER 260 ):

"Where penalties for infringement are imposed it is not legitimate to stretch the language of a rule, however beneficent its intention, beyond the fair and ordinary meaning of its language."

Taking, then, s 119 by itself, I can find no legitimate reason for attributing to sub-s (1), through the medium of the word "provided", the same effect as it would have had if words such as "if he has been ordered to use them" had been added at the end. It is for Parliament, if it thinks proper to do so, and not for the courts, to add to a statutory obligation a qualification which is not there.

So much for s 119(1) when taken by itself. If, however, one looks to s 14 and s 16 of the Act (which are complementary to s 119 and impose obligations on the employers), there is still further reason for rejecting the suggested implication. By the proviso to s 14(1) it is enacted that the requirements of the sub-section

"shall be deemed to have been complied with if a device is provided which automatically prevents the operator from coming into contact with that part."

Section 16 refers to

"All fencing or other safeguards provided in pursuance of the foregoing provisions of this Part of this Act ... "

Those provisions include, inter alia, sub-ss (2) and (4) of s 13, which compel employers to "provide" the devices and mechanical appliances therein mentioned. The word "provide" must, on ordinary principles of construction, surely have the same meaning in s 119(1) as in s 13(2) and (4) and s 14(1) of the Act, and it would follow that, if a safety device is not "provided" within s 119(1) unless its physical provision is accompanied by an order to use it then, in the absence of such an order, employers who have done all that they are expressly told to do have yet not performed their statutory obligations under s 13 and s 14 in full and can be proceeded against accordingly. I cannot accept a construction of s 119(1) which, while qualifying the obligations of the workmen, might fairly be regarded as adding pro tanto, and merely by implication, to the statutory obligations of the employers. It is, I think, clear that the word "provided" is used in s 13, s 14 and s 16 in its ordinary, natural, sense and is similarly so used in s 119(1).

I am conscious of the fact that some of the language of Du Parcq LJ in Gibby v East Grinstead Gas & Water Co is not altogether in conformity with the views above expressed. His observations, however, were not necessary for the decision of the case which was before the court and which was determined on quite different grounds. Moreover, the lord justice only referred to the fact that the workmen had not been ordered to use the hurricane lamps which were there in question as a "difficulty" in the way of a conviction under s 119(1) from which I gather that he was not expressing a concluded view that a prosecution would necessarily fail. It may well be that, if a complicated safeguard is provided for use in connection with a process or machinery of an intricate character and the workman is not instructed as to the purpose of the safeguard or how to use it, he could not be convicted of a breach of the relevant obligations under s 119(1). Indeed, in such circumstances, it is unlikely that he would be prosecuted at all. Assuming, however, that to be so, it by no means follows that a workman who has been so instructed can successfully defend himself by saying that he had not been ordered to use the safeguard, and, for the reasons which I have endevoured to express, such a defence would, in my judgment, be of no avail.

I would add that I quite agree with what my brethren have said to the effect that safeguards which employers are under a duty to provide must be placed ready to the workman's hand. That view is in no way attributing a strained or unnatural meaning to the word "provide", for it cannot fairly be said that a safeguard is being provided for the use of workmen unless it is made readily and obviously available. A butcher does not "provide" or "supply" his customer with meat if he leaves it at the roadside a mile away from the customer's house. On the other matters that were argued before us there is nothing that I wish to add to what my Lord has said, and I agree that the damages which were awarded to the plaintiff should be reduced by twenty per cent owing to the breach of his statutory obligation.