Die Jovis, 25° Junii 1953
Parliamentary
Archives, HL/PO/JU/4/3/1020
HOUSE OF LORDS
LATIMER v. A. E. C. LIMITED
Lord Porter
Lord
Oaksey
Lord Reid
Lord Tucker
Lord
Asquith of Bishop-stone
Lord
Porter
MY LORDS,
In
this case the Appellant recovered a sum of £550 as damages for
injuries which he alleged had been (the result of a failure on the
part of the Respondents in breach of their statutory duty to
maintain one of the gangways in their works in an efficient
state. He relied also upon an allegation of Common Law negligence.
Pilcher, J. rejected his claim based on a breach of statutory duty,
but held the Respondents guilty of Common Law negligence. The Court
of Appeal agreed with the judgment of the learned judge on the claim
for breach of statutory duty, but were of opinion that there was no
Common Law negligence upon the part of the Respondents.
The
relevant facts are short and undisputed. The Appellant was a
Horizontal Milling Machine Operator employed by the Respondents
in their works at Southall At those works they employ some 4,000
persons and the works themselves extend over an area of about 15
acres. On the 31st August, 1950, the Appellant was working on the
night shift in the general machine room and came on duty at about
7.45 p.m. His work involved collecting barrels containing bundles of
hand brake levers and weighing about 2 cwts. They had to be conveyed
by him on a trolley along a passage or gangway for a distance of
about 30 yards from the place where they were stored. Between about
12 noon and 3 p.m. on that afternoon there had been an exceptionally
heavy storm of rain which caused the whole of the premises to become
flooded with surface water. This water became mixed with an oily
liquid known as " mystic " which was normally collected in
channels in the floor of the building. These channels were covered
with iron lids which were not watertight. The " mystic "
was soluble in water and was used to act as a cooling agent for the
machines. When the water which had so been impregnated drained away
from the floor it left an oily film upon the surface which was
slippery. After the rainfall had subsided the Respondents spread
sawdust upon the floor so far as they had a sufficient quantity for
that purpose. They had in fact enough at hand for any
occurrence which they could be expected to foresee, but, owing to
the unprecedented force of the storm in question and the large area
that had to be covered, there was insufficient sawdust to place it
upon portions of the floor including the part of the floor where the
barrels were situated. The principal object of spreading sawdust
upon the floor was to dry it, but incidentally it would also have
some effect in decreasing the slipperiness. The Respondents knew
that the coating of the floor with the mixture of " mystic "
and water would to some extent increase its slipperiness. They also
knew that the Appellant in the course of his work would have to
collect the barrels at the place in question. At about 8.45 p.m. in
the course of his work he went to collect a barrel with the help of
a fellow workman and succeeded in getting the metal lip of a trolley
under the base of the barrel in order to raise it from the floor. He
then placed his right foot on the axle of the trolley and pushed
with his left foot, but his left foot slipped on the oily surface of
the floor with the result that he fell on his back and the barrel
rolled off the trolley and crushed his left ankle.
Undoubtedly
the Respondents did their best to get rid of the effects of the
flood, employing such of the day workers as could be spared and
obtaining volunteers from them for work in the interval between day
and night work and from the night shift at a later period, but in
the learned judge's opinion it was not possible for them to take any
further steps to make the floor less slippery. I understand his view
to have been however that, inasmuch as the effect of the storm left
the gangway in question and possibly other portions of the works
somewhat slippery and therefore potentially dangerous, they should
have shut down the whole works if necessary or at any rate such
portion as was dangerous.
2
My Lords, the
difficulty which I feel about this solution is that neither the
necessity for such an action nor its effect was ever pleaded,
explored or considered until the Respondents' Counsel was in the
course of making his final speech. No doubt the point was then raised
and argued on behalf of the Respondents. It may indeed be that an
adjournment could have been asked for at that stage and evidence
called on either side. But to take such action would have meant
recasting the whole framework of the case and I do not think it was
incumbent upon the employers' representatives to take this course. In
my opinion they were entitled to rest upon the evidence as given and
to ask that it should be considered as a whole and the requisite
inference drawn from it. It was urged the mere happening of such an
accident cast the onus on them of explaining it and excusing
themselves but the facts material to the matters pleaded had been
given in evidence and where the relevant facts have been established
no question of onus arises.
A number of
complaints of negligence and breach of duty are set out in the
statement of claim, but so far as Common Law negligence is concerned
I can find no suggestion that the factory should have been closed,
nor was any amendment asked for or permitted to that effect. All the
particulars set out in the Statement of Claim consisted of
complaints which the learned judge found not to have been established
and which were not persisted in before your Lordships.
Upon the issue
of Common Law negligence as now presented the direction which should
be given is not in doubt. It is to determine what action in the
circumstances which have been proved would a reasonably prudent man
have taken. The probability of a workman slipping is one matter
which must be borne in mind but it must be remembered that no one
else did so. Nor does the possibility seem to have occurred to anyone
at the time. It is true that after the event Mr. Milne, one of the
Respondents' witnesses, expressed the opinion that he would not have
gone on to the floor in the condition in which it was and that it
would be too dangerous to do so. But this was after the event and
though he was the Respondents' safety engineer and was present until
late that night, it seems never to have occurred to him that there
was any danger or that any further steps than those actually taken
were possible or required for the safety of the employees. The
seriousness of shutting down the works and sending the night shift
home and the importance of carrying on the work upon which the
factory was engaged are all additional elements for consideration
and without adequate information on these matters it is impossible to
express any final opinion.
Moreover, owing
to the course taken at the trial there is no material for enabling
one to judge whether a partial closing of the factory was possible or
the extent to which the cessation of the Appellant's activities would
have retarded the whole of the work being carried on.
In my view, in
these circumstances the Appellant has not established that a
reasonably careful employer would have shut down the works or that
the Respondents ought to have taken the drastic step of closing the
factory.
The question
whether there has been a breach of statutory duty turns upon the true
construction of section 25 of the Factories Act, 1937. That section
provides that "All floors, steps, stairs, passages and gangways
shall be of "sound construction and properly maintained",
and section 152 (1) defines " maintained" as meaning "
maintained in an efficient state, in efficient " working order,
and in good repair ".
Section 25,
were it not for the definition, would seem merely to provide for
sound construction and a proper state of repair.
But the
definition does give rise to a more difficult problem inasmuch as it
requires both the existence of " good repair " and an "
efficient state ". The further provision as to " efficient
working order " may be neglected since that requisite is more
appropriate to working machines than to a static portion of the
premises.
It has still,
however, to be determined what it is which has to be in an efficient
state. Does it include the elimination of some matter which is
temporarily superimposed upon the floor or is the requirement
confined to the floor itself?
3
To be
efficient, the Appellant contended, the floor must be fit for any of
the purposes for which it is intended, e.g. for support and for
passing over
in safety.
The difficulty
of such a view is that it puts an excessive obligation upon the
employer. Indeed, it was conceded that it could not be carried to the
length of saying that a temporary obstruction such as a piece of
orange peel or the like would make it inefficient. Once this
concession is made it becomes a question of the degree of temporary
inefficiency which constitutes a breach of the employer's obligation.
Primarily,
in my opinion, the section is aimed at some general condition of the
gangway, e.g. a dangerously polished surface or the like or possibly
some permanent fitment which makes it unsafe. But I cannot think the
provision was meant to or does apply to a transient and
exceptional condition. If it had been directed to such a state of
affairs it would have been easy to say so. Indeed, in section 34 (2)
the kind of language appropriate to such an object is to be found
where there is provision that " All means of " escape . . .
shall be properly maintained and kept free from obstruction ".
Perhaps the best illustration of the extent of the obligation which
has reached your Lordships' House is to be found in Galashiels
Gas Company, Limited v. Millar [1949] A.C.275
where the grips which ought to have held a lift in place at one of
the floors for some unaccountable and unascertainable reason failed
to act with the result that one of the workmen fell down the shaft
and was injured. No blame could be attached to the employers, yet as
the duty was absolute your Lordships held them liable. The decision
was given on the very section now under discussion and was much
relied upon by the Appellant. It differs, however, from the facts of
the present case in that the lift itself was out of order, no
temporary superincumbent danger had been added to it. It is no
authority therefore for holding the Respondents liable in the present
case.
It
may be added as an additional factor that the obligation is a penal
one, that the phraseology is at least ambiguous and although it has
to be remembered that the Act is intended for the protection of
workmen and to that extent should receive a benevolent construction,
yet employers are not lightly to be made criminals unless a clear
direction of an Act of Parliament has that effect.
1
agree with the Court of Appeal that this point fails and that there
was no negligence at Common Law. I would dismiss the appeal with
costs.
Lord Oaksey
my lords, I
agree.
On
the question of common law negligence I have come to the
conclusion,
though not without doubt, that the judgment of the
Court of Appeal ought
to be affirmed. What is negligence is, in my
opinion, a question of fact
to be decided by the tribunal of fact.
In the present case, although Mr.
Justice Pilcher, who tried the
case, did not, in terms, say that he was apply
ing the
standard of care which an ordinarily prudent employer would
have
taken in all the circumstances, there is, in my view, no
doubt that he in
tended to apply that standard. If he did and
if there was admissible evidence
upon which he might base his
finding, that finding ought only to be set
aside where it is clear
that he was wrong. There was such evidence in the
present case,
since the Respondents themselves proved that the flooding of
their
factory was unprecedented : that, owing to their system of
partially
open mystic drains, oil in such circumstances would and
did escape over
the factory floor: that in view of this state of
affairs they put 40 men on
specially to lay down all the sawdust
they had on the floors and passages:
that they kept 24 volunteers
on to continue the work of cleaning the floors
and passages but
that they did not stop the work of the factory but allowed
the
night shift to come on duty. Now although it is true that no
questions
21003 A 2
4
were put in
cross-examination to the Respondents' witnesses suggesting that they
ought to have closed the factory, the point was raised by the judge
during the argument and no application was made for an adjournment or
for an amendment of the pleadings. The facts, indeed, were admitted
and the principal question on the issue of common law negligence was
whether such facts amounted to negligence. It does not seem to me
that if a jury had found in such circumstances that the Respondents
had been negligent the Court of Appeal could properly have set aside
their verdict. But no doubt a judge's finding is not entitled to the
same finality and I think, on the whole, that since the evidence as
to the condition of the floors and passages at the time the night
shift came on was very meagre and that practically the only evidence
of their slippery condition was the accident to the Plaintiff, I come
to the conclusion that the conduct of the Respondents can, at the
highest, be said to have (been an error of judgment in circumstances
of difficulty, and such an error of judgment does not, in my opinion,
amount to negligence.
On the question
of the construction of s. 25 (1) of the Factories Act, 1937, I am of
opinion that by virtue of that section and the interpretation section
152, the Respondents were bound to maintain the floors and passages
in an efficient state, but I do not consider that it was proved that
they were not in an efficient state. A floor does not, in my opinion,
cease to be in an efficient state because a piece of orange peel or a
small pool of some slippery material is on it. Whilst I do not agree
that the maintenance of the floors is confined to their construction,
I think the obligation to maintain them in an efficient stale
introduces into what is an absolute duty a question of degree as to
what is efficient.
I therefore agree that this appeal should be dismissed.
Lord Reid
MY LORDS,
A film of oil
had been deposited by flood water on the floor of the Respondents'
factory. At a place where sawdust had not yet been applied to it the
Appellant without realising the danger tried to get a heavy barrel on
to a trolley; he was standing on one foot and using considerable
force with the other when he slipped and received severe injuries.
His case is that his injuries were caused by a breach by the
Respondents of section 25 (1) of the Factories Act 1937. That
sub-section provides: "All floors, steps, " stairs,
passages and gangways shall be of sound construction and properly "
maintained ". It is not alleged that the floor was not of sound
construction, but it is said that, by reason of the presence of
the oil which was a source of danger, the floor was not at the time
of the accident properly maintained. It seems to me that the first
question is whether the film of oil can be regarded as a part of the
floor. There may be difficult cases where something has been put on a
floor without being incorporated with it and where it could be
regarded as part of the floor, but this is not one of those cases.
The oil was on the floor casually and temporarily and seems to me to
have been no more part of the floor than a banana skin dropped by a
passer-by. The question then is whether section 25 (1) applies to
things which are not part of the floor but whose presence on it is a
source of danger. If section 25 stood alone I would say that it did
not. No doubt the section is one dealing with safety but, even so,
keeping the surface of a floor free from dangerous material does not
appear to me to come within the scope of maintaining the floor.
The difficulty
in the case arises from the definition of the word " maintained
" in section 152. That section provides: " In this Act,
unless " the context otherwise requires, the following
expressions have the meanings " hereby assigned to them
respectively, that is to say: —
*
* *
5
"
' Maintained ' means maintained in an efficient state, in efficient
working " order, and in good repair ".
The
word " maintained " occurs in many sections often in
connection with machinery. The whole definition can then be applied
without difficulty. But, unless " working order " is used
in a very loose way, which one does not expect in an Act of
Parliament, to ask whether a floor is in efficient working order is
to ask a meaningless question. It was not disputed that this part of
the definition cannot be read into section 25 (1), and it was argued
that because the context excludes this part of the definition it
excludes the whole of the definition. I do not see why it should. I
think that each part of the definition is severable. The phrase "
in good repair " is clearly applicable to a floor, but this
floor did not cease to be in good repair by reason of the presence of
the oil on its -surface. The difficulty arises with regard to the
phrase " in an efficient state ". "Efficient" is
an awkward word to use in connection with a floor, but I cannot
reject it as meaningless. The Appellant argues that a floor cannot be
in an efficient state if people are liable to slip on it: but again I
think one must ask whether the danger comes from the floor or from
something which happens to be on it. It would be going a long way to
say that a floor, perfectly good in itself, ceases to be in an
efficient state whenever there is something on it which gives rise to
danger. If there is any ambiguity one is entitled to look at the
consequences of adopting each of the possible interpretations. It is
one thing to say that an employer is absolutely responsible for the
condition of his floors even if the unsafe condition has come about
through no fault of his or his servants and could not have been
remedied before the accident. But I would expect clearer words if it
were intended that he should also be held responsible if something
dangerous got onto his floor' and made it for the time being "
inefficient" through some inevitable accident or the fault of
some other person not his servant.
But
I do not think that there is really any ambiguity here. The
requirement of the definition is not that the floor shall be in
an efficient state: it is that the floor shall be maintained in an
efficient state. " Maintained " is the dominant word
throughout and that throws one back to what is meant by maintaining a
floor. I see little difference between maintaining a floor "
properly ", as required by section 25, and maintaining it "
in an efficient " state " as required by the definition. 1
have already said that I do not think that maintaining a floor
includes keeping dangerous things away from it.
To
prevent misunderstanding I ought perhaps to add that maintaining a
machine in efficient working order does I think involve preventing
foreign matter from reaching any place where it can interfere with
the proper working of the machine, and for that reason I cannot get
much assistance in this case from Galashiels Gas Co. v. Millar
[1949] AC 275.
The
Appellant also alleges breach of the Respondents' duty to him at
common law. On that part of the case I agree entirely with the speech
which my noble and learned friend Lord Tucker is about to deliver and
which I have had an opportunity of reading. I therefore agree that
this appeal should be dismissed.
Lord Tucker
MY LORDS,
As
to the proper construction of Section 25 (1) of the Factories Act,
1937, in the light of the definition of the word " maintained "
in Section 152 (1) of that Act, I am in agreement with the conclusion
reached by the trial Judge, the members of the Court of Appeal and
your Lordships that it has not the wide meaning contended for by the
Appellant so as to render the Respondents liable for the condition of
the floor of this factory in the circumstances existing on 31st
August, 1950, and I do not desire to add anything on this part of the
case.
6
With regard to
the alleged breach by the Respondents of their common law duty to
take reasonable care for the safety of their servants, I am in
complete agreement with what was said by Lord Justice Singleton in
the Court of Appeal in his application of the standard required to
the facts as found by the trial- Judge. I only venture to add a few
observations out of respect for the careful judgment of Mr. Justice
Pilcher and because it appears to me desirable in these days, when
there are in existence so many statutes and statutory regulations
imposing absolute obligations upon employers, that the Court should
be vigilant to see that the common law duty owed by a master to his
servants should not be gradually enlarged until it is barely
distinguishable from his absolute statutory obligations.
In the present
case the Respondents were faced with an unprecedented situation
following a phenomenal rain storm. They set 40 men to work on
cleaning up the factory when the flood subsided and used all the
available supply of sawdust, which was approximately 3 tons. The
Judge has found that they took every step which could reasonably have
been taken to deal with the conditions which prevailed before the
night-shift came on duty, and he has negatived every specific
allegation of negligence as pleaded, but he has held the Respondents
liable because they did not close down the factory, or the part of
the factory where the accident occurred, before the commencement of
the night-shift.
My Lords, I do
not question that such a drastic step may be required on the part of
a reasonably prudent employer if the peril to his employees is
sufficiently grave, and to this extent it must always be a question
of degree, but in my view there was no evidence in the present case
which could justify a finding of negligence for failure on the part
of the Respondents to take this step. This question was never
canvassed in evidence, nor was sufficient evidence given as to the
condition of the factory as a whole to enable a satisfactory
conclusion to be reached. The learned Judge seems to have accepted
the reasoning of Counsel for the Plaintiff to the effect that the
floor was slippery, that slipperiness is a potential danger, that the
Defendants must be taken to have been aware of this, that in the
circumstances nothing could have been done to remedy the
slipperiness, that the Defendants allowed work to proceed, that an
accident due to slipperiness occurred, and that the Defendants are
therefore liable.
This is not the
correct approach. The problem is perfectly simple. The only question
was: Has it been proved that the floor was so slippery that, remedial
steps not being possible, a reasonably prudent employer would have
closed down the factory rather than allow his employees to run the
risks involved in continuing work? The learned Judge does not seem to
me to have posed this question to himself, nor was there sufficient
evidence before him to have justified an affirmative answer.
The absence of
any evidence that anyone in the factory during the afternoon or
night-shift, other than the Plaintiff, slipped or experienced any
difficulty or that any complaint was made by or on behalf of the
workers all points to the conclusion that the danger was in fact not
such as to impose upon a reasonable employer the obligation placed
upon the Respondents by the trial Judge.
I agree that the appeal be dismissed.
Lord Asquith of Bishopstone
My
Lords,,
This appeal
raises two points: (A) Are the defendants liable under the Factories
Act, 1937? (B) Are they liable at common law for negligence? Of these
the first point presents the greater difficulties.
A. The question
is what the words " properly maintained" in section 25 (1)
mean. The subsection provides that the "floors", inter
alia, "shall " be of sound construction and properly
maintained ". If these words stood
7
alone and there
were no definition of the word " maintain " in the statute,
for myself I should be in little doubt as to their interpretation. I
should take them to mean that at the time of its construction or
installation the floor should possess the structural qualities which
a floor ought to possess— e.g. a level surface and sufficient
strength to bear the stresses to which it is liable to be
subjected—and that from that time on the owner of the factory
should keep up, prolong or perpetuate that structural condition.
But the fact
cannot be ignored that there is a definition of " maintain "
in section 152 and that this definition in part or in whole must be
read into section 25 (1).
There are three
limbs in the definition. " Maintained " means "
maintained " in an efficient state, in efficient working order
and in good repair ". This definition is capable of more than
one construction.
(1) Mr.
Croom-Johnson in an attractive argument contended that the
three
limbs of the definition should be read selectively or distributively,
viz.
that, according to the subject matter involved, all three
limbs might apply,
or some two of them or only one. Thus, in the
case of a machine (e.g. a
lift) there is no difficulty in applying
all three. In the case however of a
wholly and permanently
passive entity such as a floor, he argued (and I
think this was
common ground) that "efficient working order "was
in
applicable, and, going further, that " efficient
state " was also inapposite,
since " efficiency "
connotes at the least potential activity or mobility, which
a
floor does not possess. Ergo, the words " in good
repair" alone applied,
and these words were fully satisfied
by adequate repair of the structure.
(2) The
Respondents also argued that, short of this, the words " of
sound
"construction" in section 25 (1) ran through and
coloured both the words
" properly maintained " and the
definition of " maintained ". The second
Reason in
the Respondents' Case formulates this contention as follows: —
"Because
the definition of the word 'maintained' in section 152 (1) of "
the Factories Act, 1937 means, in relation to section 25 (1) of the
said " Act that it is the sound construction which has to be
maintained in an " efficient state, in efficient working order
and in good repair." This argument accepts the
applicability of all three limbs of the definition but treats their
scope as controlled and narrowed throughout by the words " of
sound " construction " at the opening of the substantive
subsection.
(3) Or, again
section 25 (1) plus the definition may be read as imposing
two
independent and cumulative obligations ; (a) to maintain the
soundness
of the floor's structure; (b) to maintain the
floor in an efficient state not in
respect of its structure only
but over some wider range of qualities, which
might include what
has been called a " non-skid " quality in the surface.
It is somewhat
tempting to solve these difficulties of construction by contenting
oneself with the comparatively simple test on which Denning, L.J.'s
judgment mainly proceeds. He treats the duty of maintaining the
soundness of the floor qua floor as absolute, but distinguishes
between the floor itself and things, whether solid or liquid,
superimposed on it, in respect of whose presence no absolute duty, in
his view, exists but only a duty of reasonable care. You must
maintain the floor, but it does not cease to be maintained because
cumbered with things resting upon it. I do not dissent from this
view, but it may be difficult to apply in practice in borderline
cases. Where, e.g., a floor has polish so rubbed into it as to become
absorbed and incorporated in its structure, are we dealing with
a floor simpliciter, or a floor plus something superincumbent on it?
On the whole I
consider that the second of the three constructions outlined
above is the most satisfactory, viz. that the words " of sound
"construction " control, colour or canalise the whole of
section 25 (1) and the definition. The unreported decision of
Hilbery, J. in Pitfield v. The Railway Executive
(Winchester Assizes 1942) proceeds on this basis: and I can see
nothing in the Galashiels case (which proceeded on section 22,
a section with a different wording, and applied to a different
subject matter— a mobile object and a machine) which is
inconsistent with it.
8
On the point
of construction therefore I am of opinion that the
Respondents succeed.
B. Negligence at Common Law
At common law
the question can only be whether, having regard to the nature and
extent of the risk created by the slippery patches on the floor, a
reasonably careful employer would have suspended all work in this 15
acre factory and sent the night shift home: or whether, having done
all he could (and did) do with the sawdust at his disposal, the 40
production service men in the afternoon, and the 24 voluteers between
the end of the day shift and the beginning of the night shift, he
would have allowed the work to proceed. The learned trial judge
concluded that a reasonable employer would have closed down. I agree
with practically everything else he said in a most careful judgment.
But, of course, this conclusion was crucial. In considering it one
cannot but be impressed by the following considerations : —
It was nowhere
specifically pleaded in the Statement of Claim that
the works
should have been closed down ;
No witness
for the plaintiff suggested that this should have been
done;
No question was put to any witness for the defence to
that effect;
No evidence
was directed to the question, which on this issue was
fundamental,
what degree of dislocation or complication a complete stoppage
would
have entailed ;
(e) The
point was first taken, after the evidence was closed, by the learned
judge himself during the final speech of one of the Counsel.
In these
circumstances I agree with the observations of Singleton, L.J. at the
bottom of page 77 and top of page 78 of the Appendix: " If the
test is, " as I believe, what would a reasonable employer have
done in those cir-|
" cumstances, I fail to see that there is
any breach by the employers of " the duty which they owed, and I
fail to see, too, any evidence on which " a finding that the
employers were negligent in not closing down can be " based ".
What evidence the learned judge had before him suggests to my mind
that the degree of risk was too small to justify, let alone require,
closing down. The evidence of the Plaintiff himself at page 13C is
that
" you always get a certain amount of grease about".
Ampstead, his fellow worker, says exactly the same at page 28H,
adding that on " numerous
" occasions " (4 or 5
times) he had seen " Mystic " well up from the channels in
the floor of the factory owing to flooding. Yet the Plaintiff says
(at page 15A) that except for the accident to himself on this
occasion in August, he has never known any accident happen to any one
in the factory through these causes. I cannot resist the conclusion
that on this occasion, notwithstanding the extent of the
flooding, the risk was inconsiderable, and that the learned judge's
conclusion cannot stand. Treated as a finding of fact, it cannot be
supported on the evidence, which, as to the onerousness of the
suggested remedial measure, was non-existent. Treated as an inference
of fact, it was open to the Court of Appeal and is open to your
Lordships' House to draw a different inference, and I would do so.
I agree that the appeal should be dismissed.
(21003) Wt. 82I8-43 35
7/53 D.L./PA/19
