LATIMER V. AEC LTD

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.

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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?

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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.275where 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.

I 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 oughtto be affirmed. What is negligence is, in my opinion, a question of factto 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 apply­ing the standard of care which an ordinarily prudent employer would havetaken in all the circumstances, there is, in my view, no doubt that he in­tended to apply that standard. If he did and if there was admissible evidenceupon which he might base his finding, that finding ought only to be setaside where it is clear that he was wrong. There was such evidence in thepresent case, since the Respondents themselves proved that the flooding oftheir factory was unprecedented : that, owing to their system of partiallyopen mystic drains, oil in such circumstances would and did escape overthe factory floor: that in view of this state of affairs they put 40 men onspecially 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 floorsand passages but that they did not stop the work of the factory but allowedthe night shift to come on duty. Now although it is true that no questions21003 A 2

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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: —

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" ' 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.

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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

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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 thethree 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. alift) there is no difficulty in applying all three. In the case however of awholly and permanently passive entity such as a floor, he argued (and Ithink this was common ground) that "efficient working order "was in­applicable, and, going further, that " efficient state " was also inapposite,since " efficiency " connotes at the least potential activity or mobility, whicha 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 secondReason 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 imposingtwo independent and cumulative obligations ; (a) to maintain the soundnessof the floor's structure; (b) to maintain the floor in an efficient state not inrespect of its structure only but over some wider range of qualities, whichmight 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.

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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 thatthe works should have been closed down ;

No witness for the plaintiff suggested that this should have beendone;

No question was put to any witness for the defence to that effect;

No evidence was directed to the question, which on this issue wasfundamental, what degree of dislocation or complication a complete stoppagewould 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.