COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BIRMIRGHAM DISTRICT REGISTRY
(MR. JUSTICE MACPHERSON)
B e f o r e :
LORD JUSTICE OLIVER
LORD JUSTICE ROBERT GOFF
| DAVID JOHN JAYES
|I.M.I. (KYNOCH) LIMITED
MR. GRAEME WILLIAMS, Q.C. and MR. JOHN WILLIAMS (instructed by V.O. White, Esq.) appeared on behalf of the (Defendants) Respondents.
Crown Copyright ©
LORD JUSTICE ROBERT GOFF: There is before the court an appeal by David John Jayes against a judgment by Mr. Justice MacPherson in which he dismissed an action in which the appellant claimed damages for injuries suffered to his finger in the course of his work at the respondents' factory. The respondents are a company called I.M.I. (Kynoch) Limited, and the appellant was a production supervisor working at the respondents' factory, and indeed a very experienced man.
During the course of his work, a machine, which was within the appellant's responsibility (a power press used in the manufacture of brass cartridge cases), experienced some trouble which had to be put right. So he called in some fitters to come and deal with that particular problem, and two men came. Whether they were certificated or not, they were obviously very experienced fitters whom the appellant knew well. They came to deal with the problem, which was a problem of lubrication; and the guard was removed from the working part of the machine which, in particular, covered a moving belt on the machine.
The fitters got to work. They tried to remedy the problem, but they were not sure whether they had succeeded or not. So from time to time they had to start the machine up and turn it over. The appellant was present, and when the machine was started up he pointed out to the two fitters that grease was getting on to the belt. That was something which he regarded, no doubt rightly, as unsatisfactory. So what he did was this. He got hold of a wiper to wipe the grease from the pulley to stop the grease from getting on to the belt. He tried to do that. Then the machine stopped, and the fitters had another go at solving the problem. The machine was started up again and, once again, the appellant got hold of a piece of rag. He put it where the grease seemed to be spreading from the pulley on to the belt. At that moment the piece of rag became caught up in the machine. Then, instead of his letting it go, he tried to pull it out. Instead of his succeeding in pulling the rag out of the machine, the machine pulled his finger in, and he suffered damage to the index finger of his right hand. That was the subject matter of his claim.
The case came before Mr. Justice MacPherson. It is obvious from the transcript that the appellant was a man who was completely frank, and he described clearly what he did. He obviously knew that what he had done was a very foolish thing to do; and in the end, in the evidence, that was indeed put to him by counsel. We find, at the end of the cross-examination, Mr. Williams saying to the appellant: "Would you agree with me what you did was a cra2y thing to do, Mr. Jayes?" The answer was: "Yes, a very foolish thing to do." So he was absolutely frank that what he had done was a crazy thing to have done in the circumstances.
His claim was brought for breach of statutory duty under the Factories Act. He claimed that there was a breach of section 14, in that a dangerous part of the machine had not been fenced as it ought to have been. Furthermore, he submitted that the respondents could not rely on the provisions of section 16 of the Factories Act 1961 because this was not a case where, although work was being done on the machine, it could be said that the parts in question were necessarily exposed for examination at the time when he suffered his injury. In the alternative, the case advanced on his behalf was that, even if the part was necessarily exposed, nevertheless, having regard to the Operations at Unfenced Machinery Regulations 1938, those regulations were not complied with. We were referred to regulation 5 of those regulations, which provides:
"No operation to which this regulation applies shall be carried out -
(a) except by a machinery attendant authorised as aforesaid to carry out the operation,
(d) unless such steps as may be necessary, including where appropriate and reasonably practicable the erection of a barrier, are taken to prevent any person, other than a person carrying out the operation, from being in a position where he is exposed to risk of injury from the machinery."
It is said on the appellant's behalf that, if part of the machine was necessarily exposed for examination, nevertheless there was a breach of paragraph (a) in that the fitters were not machinery attendants properly authorised, or a breach of paragraph (d) in that a barrier had not been erected.
Mr. Justice MacPherson approached this case as follows. He paid tribute to Mr. May's argument (and I would pay a similar tribute to his argument before this court), but he said that he thought this was an impossible case. For that reason Mr. Justice MacPherson did not consider in detail the question whether or not there had been a breach of statutory duty. He assumed, for the purposes of the case, that the machine was not necessarily exposed within the words of section 16 and he assumed that the fitters were not machinery attendants who were properly authorised. He dismissed the suggestion that it would have been appropriate to erect a barrier, but he made those two other assumptions which would have resulted, if proved, in there being a breach of statutory duty. But he held that nevertheless, on those assumptions, he would not make any award of damages to the appellant because, although there had been what he called a technical breach of the Factories Act and the Regulations, the accident was entirely the fault of Mr. Jayes. So, in effect, he was saying: Let it be assumed that there was a breach of statutory duty; nevertheless, this is a case where it is appropriate to hold that there was 100 per cent contributory negligence on the part of the plaintiff.
Before this court Mr. May has made two submissions. He submitted that in a case of this kind where there has been a breach of statutory duty - a breach of the duty to fence the machine - one of the principal purposes of fencing machinery is to guard against the possibility of someone committing an act of folly and, in those circumstances, it is quite inappropriate to hold that a workman is guilty of 100 per cent contributory negligence. In such a case as this, there may well be fault on both sides, but there must be some degree of fault on the part of the employer which is sufficient to enable the employee, however foolish, to recover some proportion of his damage.
In my judgment, that proposition is one which cannot be supported as a matter of law. We are here in the field of contributory negligence. We shall assume, as the learned judge did, that there has been a breach of statutory duty; and we have to have regard to the terms of the Law Reform (Contributory Negligence) Act 1945, the principle of which is that, in the event of contributory negligence, the award of damages shall reduce to such extent as the court thinks just and equitable having regard to the plaintiff's share in the responsibility for the damage. In my judgment, there is no principle of law which requires that, even where there is a breach of statutory duty in circumstances such as the present (where the intention of the statute is to provide protection, inter alia, against folly on the part of a workman), there cannot be a case where the folly is of such a kind or of such a degree that there cannot be 100 per cent contributory negligence on the part of the workman. If authority is needed for that proposition, we need only turn to Mitchell v. W.S. Westin Ltd. 1 W.L.R. 297, where we find in the judgments in the Court of Appeal dicta both of Lord Justice Sellers (at page 305) and Lord Justice Pearson (at page 308) which show very clearly that in such a case it can properly be held that the degree of fault on the part of the workman is so great that it would be appropriate to make no order for damages on the basis of 100 per cent contributory negligence.
It must be borne in mind that in a case of this kind the court does not, for example, hold that there is 1 per cent or 2 per cent fault on the part of the employer and 99 per cent or 98 per cent fault on the part of the workman. There comes a point in time where the degree of fault is so great that the court ceases to make fine calculations of that kind and holds that, in practical terms, the fault is entirely that of the workman. It follows that Mr. May's submission is one which, in point of law, I am unable to accept.
There remains the question whether, on the facts of this case, we should interfere with the decision of the learned judge. The learned judge clearly had regard to the danger in this particular case, which was perfectly obvious to the plaintiff as a highly experienced and competent man who knew that the safety regulations should be observed and who deliberately ran this risk. He admitted that what he did was a crazy thing to do. Having regard to all those circumstances, in my judgment, the judge was entitled to reach the conclusion that he did, that on the facts of this case the fault was entirely that of the plaintiff. We have to bear in mind that it is not for us to make minor adjustments in decisions by judges concerning the degree of contributory negligence; on the contrary, we have to consider whether the judge has gone wrong in principle. In my judgment, the learned judge did not err in principle in reaching the conclusion which he did; he was fully entitled to reach that conclusion, and I, for my part, would not interfere with his decision.
THE MASTER OF THE ROLLS: I also agree.
(Order: Appeal dismissed with costs. Application for leave to appeal to the House of Lords refused)