HC Deb 14 April 1959 vol 603 cc827-38
At the end of subsection (1) of section twenty-five of the principal Act (which requires floors, steps, stairs, passages and gangways to be of sound construction and properly maintained) there shall be added the words " and shall, so far as is reasonably practicable, be kept free from any unnecessary obstruction and from any substance likely to cause persons to slip ".—[Mr. Iain Macleod.]

Brought up, and read the First time.

Mr. Iain Macleod

I beg to move, That the Clause be now read a Second time.

The new Clause, to which the Opposition have tabled Amendments, strengthens Section 25 of the 1937 Act by requiring that, so far as is reasonably practicable, floors, steps, stairs, passages and gangways shall be kept free from unnecessary obstruction and from any substance likely to cause persons to slip. This Clause, again, is intended to carry out an undertaking given in Committee. When the Opposition moved a similar Clause in Committee I suggested that its terms were a little too absolute and needed to be qualified, and this is what the new Clause attempts to do.

I will say nothing further now about it. No doubt we shall have a debate on it when the Opposition move the Amendments.

4.0 p.m.

Mr Niall MacDermot (Lewisham, North)

We may reserve our criticisms of the wording of the new Clause until we cone to consider the Amendments, although all of us on this side of the House welcome it, because, as the right hon. Gentleman pointed out, it is in response to a point which we raised in Committee, which we feel is a useful and important one.

Its effect is to extend the provisions of Section 25 of the principal Act, which relate to the construction and maintenance of floors, passages and stairs. It is quite remarkable to remember the number of industrial accidents which occur through people stepping on or striking against objects and slipping down and falling. There used to be a section of the common law Bar which was known as the "specialists in running down cases," being, of course, cases arising out of motor accidents.

That section of the Bar continues to operate, though I am glad to say that there are fewer cases than there used to be in that field. Their place has almost been taken by the " specialists in slipping down cases ", so many are the accidents of this kind, and so often do they give rise to dispute whether or not there was a fault by the employer or his employees which gave rise to the accident.

I think that the 1957 Report of the Chief Inspector of Factories shows that out of the total of 150,000 accidents which occurred in factories in 1957, no fewer than 12,600 of those accidents occurred through persons stepping on or striking against objects in this way. That will show the importance of this point. The new Clause deals with two matters—preventing floors, passages and stairs from being obstructed unnecessarily, and also preventing slippery substances being placed upon them. We heartily welcome the new Clause and reserve our detailed criticisms until later.

Question put and agreed to. Clause read a Second time.

Mr. MacDermot

I beg to move, as an Amendment to the proposed Clause, in line 3, to leave out from the second " shall " to " be" in line 4.

Perhaps it would be convenient to discuss this Amendment together with the next one to line 4, because the effect of the two Amendments, taken together, is to transfer the words so far as is reasonably practicable from the place where they now appear to the second part of the new Clause. I do not wish to make any secret of the fact that, for my part, I thoroughly dislike the introduction of the words so far as is reasonably practicable into this Clause at all. We had a protracted and somewhat vigorous discussion in Committee about the introduction of these words into another Clause of the Bill at a place where, in my view, the case was even stronger for their omission than it is here, but we were not successful in persuading the Government on that occasion. I do not think that we would have any chance of success in trying to persuade the Government to leave out the words now in this new Clause, but I would point out that this is the first time that these words and this qualification have been introduced into Section 25 of the principal Act.

As is well-known, the words are to be found in Section 26, which deals with the question of safe means of access and safe employment, and the duty of the employer there is to provide safe means of access, qualified by the words that he shall, so far as is reasonably practicable, provide and maintain safe means of access. In Section 25, as it stands now, the duty of the employer to see that floors, steps, and so forth are of sound construction and properly maintained is an absolute duty, not qualified by these words at all. There is great virtue in absolute duties, and very many of them are imposed in the. Factories Acts.

Where qualifying words such as these are introduced, experience has shown that they tend to encourage laxity in enforcement. The employers feel, when they are considering a problem, that it is not practicable to do anything about it, and the danger continues until an accident occurs. If, on the other hand, the duty is made absolute, people rack their brains and perhaps call in expert advice to find a way round the problem. Therefore, I should like to see, whenever it is at all reasonable, that a duty under the Act is made an absolute one.

Turning to the detailed wording of the new Clause, it provides, firstly, that all floors, steps, and so forth, shall, so far as is reasonably practicable, be kept free from any unnecessary obstruction… We feel that the introduction of the word " unnecessary " is in itself sufficient protection for the employer. If the duty which is laid upon him is only to keep the floor, and so forth, free from unnecessary obstruction, he does not need the added protection, or as I would put it, the added encouragement to laxity, of the words so far as is reasonably practicable". I can see that the argument is much stronger for introducing the words so far as is reasonably practicable. in the second part of the new Clause, namely, the prohibition on allowing on the floor any substance likely to cause persons to slip. Obviously, this is something which can occur at times unavoidably, and one only need think of the example of a washroom in a laundry, which is a factory within the meaning of the Act. Water is bound to get all over the floor, and it would not be reasonably practicable to avoid that. I suppose that a person is more likely to slip on a wet floor than on a dry floor. That would be the kind of argument for it, and it is for that reason that we have tabled cur second Amendment. I hope that the Minister will be able to accept the Amendments, so as to eliminate these words from the first part of the new Clause.

Mr C. Howell

I do not want to bore the House by repeating the words of my hon. Friend the Member for Lewisham, North (Mr. MacDermot), but there is one issue to which I would take exception, and that is in regard to the words " reasonably practicable " and the wet floor.

There are many places where floors and passages will get wet, but, if that is so, and if the firm concerned knows that it is so, it could have a false floor put in which would take away the water, such as an iron, rough-surface staging so that the water could percolate through the false floor and be drained away. Obviously, that would be reasonably practicable, to my idea, but it might cause additional expense to the employer.

The words " reasonably practicable " can be used as an escape clause for any employer, and here we are referring only to bad employers, as we made perfectly clear in the Committee stage. If they were all good employers, we would not need a Factories Act. Therefore, the restrictions which we are trying to place on employers in the Factories Acts refer only to the not-so-good employers, who want gingering-up and forcing to do the things which a good employer would do.

On this question of floors and passages, I think that obstructions should be removed, because we not only have to deal with that question in this new Clause, but have to remind ourselves of the context of other parts of the Act, whereby it might be necessary for the staff to go through that passage, not in a normal way, but in a speedy way. I should probably be out of order in referring to other Clauses, such as those dealing with exits in case of fire, but we must not ignore the fact that in these factories passages must be available for speedy exit. Even if the floor is wet, it need not be dangerous, because if the floor is made of iron or is corrugated, or whatever it may be, it is rough to the feet, it does not become smooth when wet, and it could quite easily be a perforated floor to allow the water to drain away underneath.

Mr. Iain Macleod

To take the last point first, I think that the hon. Member for Lewisham, North (Mr. MacDermot) is more accurate in his reading of the second part, because we are not, in fact, here discussing the construction of the floors. The point here is the requirement that they shall be kept free from any substance likely to cause persons to slip. It is impossible to be certain about this—I am thinking of oil, among other things, which is used largely in factories—so there must be qualifying words as regards the second part.

I agree with the hon. Gentleman the Member for Lewisham, North, therefore, that the case is much stronger on the first Amendment. I say frankly that when I saw the two Amendments on the Notice Paper I was inclined to rely on the word " unnecessary " and to say that, this being in the Clause, the words " reasonably practicable " were not necessary. However, I have been into this carefully and have been back to my legal advisers upon it. With respect, I think the present drafting of the Clause is preferable.

There can be no question that if the Clause were drawn in the way suggested by the Opposition, a court would be bound to take note of, and in certain circumstances give effect to, the contrast which I assume Parliament meant to draw between the unqualified requirement about unnecessary obstruction and the requirement which would be qualified by the words " reasonably practicable " in relation to any substance likely to cause persons to slip. Qualifying words, of course, are not in any way new, because, as the hon. Gentleman knows, in Section 25 (3) of the 1937 Factories Act, to which we have referred before and shall have to refer again, we find: All openings in floors shall be securely fenced, except in so far as the nature of the work renders such fencing impracticable…. The situation one can imagine here is where in a factory it is necessary, perhaps, to unload machinery from packing cases for the running of the factory. and those packing cases would unquestionably cause an obstruction in, say, the corridor. So far, that would be covered by the word " unnecessary," but then we come to the point of how quickly can those packing cases be removed. My advice is that it would be necessary to have both the qualification " unnecessary " and the qualification " reasonably practicable ". It would be necessary to have the word " unnecessary " to permit obstructions where necessary to the work, in the case I have instanced, and also the words " reasonably practicable " to avoid imposing an unreasonable obligation if something happened as a result of its not being possible to remove absolutely and immediately, the obstruction which was necessary in the first place to the working of the factory.

There is not much between us; certainly, there is nothing between us on drafting as regards the second part. On balance, on the first part, having taken careful advice, I prefer the words I have put down.

Mr. Lee

I am sorry that the right hon. Gentleman is not seized of the important difference in the words we are proposing. According to his proposed Clause, passages are to be of sound construction and properly maintained. We are all agreed about that. Then there are to be added to the principal Act the words: … and shall, so far as is reasonably practicable, be kept free… We are afraid of the point he was making about unloading packages. I could give the Minister hundreds of instances where, by common use, packages are deposited in a passage. After a while, space being short, a white line is put round a part of the passage, and within that place it is considered proper to store packages.

4.15 p.m.

So long as the right hon. Gentleman insists on having those words in the proposed Clause, it can be assumed that it is not reasonable to expect the factory owner not to have the passage free. If the Minister will think in terms of many of the factories which he has visited, he will realise that, because of the expansion of business, factory space tends to become too small. At that point a search is made for more space for storage purposes. On reflection, therefore, I am sure that there will spring to his mind factories in which, previously, there were passages which were kept free of obstruction and which are now used to a large extent for storage purposes. If the Minister insists on retaining his words, it could be held that the factory was complying with the Clause while, at the same time, using part of the passages for storage purposes, whereas it is not reasonable to obstruct the passage.

I can think of serious accidents occurring as a result of obstruction in passages of this kind, especially at a time when the lights are going out and the men are anxious to get home. If the Minister will look at the graph of accidents he will find that the last 10 minutes of the working day are the most dangerous. In my day the line of the graph moved upwards very fast at this period. I suggest, therefore, that if the proposed Clause is left as it is drafted the courts could not hold that such an employer had been guilty since he could say that it was necessary to have such an obstruction in the passageway.

In our view, it is far more reasonable to state that it is not practicable to expect any employer to keep a floor in such a condition that he can guarantee people will not slip on it, since that is beyond human capacity. On this issue, however, it is reasonable to ask that passages should be kept clear, and the Minister will give an unnecessary escape clause to people who want to utilise passages for storage purposes if he insists upon the Clause in this form.

Mr. Iain Macleod

I accept most of what the hon. Gentleman has said. I am ready to look at the first Amendment, if necessary, to see if these or similar words might be appropriate. However, I have been into this closely with my legal advisers and it is possible to envisage cases in which there can be an accident —perhaps part of the roof falls in—which would cause an obstruction. It might not be physically practicable for that obstruction to be removed at once. There must be some qualifying words, such as " as soon as is reasonably practicable ". I am sure that the courts would interpret it in that way, namely, that a factory owner must keep his gangways and corridors free from any unnecessary obstruction so far as is reasonably practicable.

I think that that difference between us is small. If the Opposition are content for me to look at the matter again, I will do so, but I could not accept the words of the Amendment, in view of the advice which I have been given.

Mr Alfred Robens (Blyth)

We are all grateful to the Minister for the manner in which, throughout the passage of the Bill, he has been prepared to look sometimes even a third time at the points that we have put forward. On behalf of my colleagues and myself, I accept immediately his offer to look at this matter again, but I should like to add one other comment which, I hope. he will take into consideration.

We have to read this provision in connection with Section 25. which says that All floors, steps, stairs, passages and gangways shall be of sound construction and properly maintained. We are to add the words and shall, so far as is reasonably practicable, be kept free from any unnecessary obstruction. We ask that the words so far as is reasonably practicable shall he placed after the words kept free from unnecessary obstruction ", because we feel that it is a question of it being reasonably practicable to make all floors, steps, stairs, passages and gangways free from any substance likely to cause persons to slip.

The only difference between us is whether we should cover the employer where he has an obstruction on a floor, step, stair, passage, or gangway which is an unnecessary obstruction. The right hon. Gentleman suggested two possibilities. The first was that of the unpacking of a packing case. The goods are taken out of the case and for some time the case is left in the gangway. As a result there is an accident. If the Amendment were accepted it would be for the courts to decide whether the packing case at that moment was an unnecessary obstruction or a necessary obstruction which had to be there for the time being.

The second possibility which he mentioned was that of the fall of part of the roof, which then obstructed a floor, step, stair, passage or gangway. That would be an unnecessary obstruction, because it would not be there for the pursuit of the business of the operatives engaged in or around that spot. Efforts would be made immediately to clear the debris from the fall of roof. If the words so far as is reasonably practicable are retained at that point, the debris could be left for some time and not dealt with as an emergency. An accident could occur and the worker would not be covered by the Bill.

If we move the words so far as is reasonably practicable to where we suggest, when an obstruction occurs, as a result of an accident, on a floor, step, stair, passage or gangway, the onus is placed upon the management to clear that obstruction, if it is an unnecessary obstruction, immediately. If it is not possible to clear the obstruction immediately, then it will be left to the courts to determine whether the obstruction was necessary or unnecessary. While I have no legal knowledge, I feel that in the case of a roof falling and cluttering up some stairs, the courts could hardly say that under the terms of the Clause as we wish to amend it the responsibility was that of the employer.

I hope that the right hon. Gentleman will look at the further points which I have made, together with those made by my hon. Friends, and that he will find it possible at another stage of the Bill to insert words which meet the purpose of our Amendment.

Mr Elwyn Jones (West Ham, South)

I am glad that the Minister has undertaken to look at this matter again, because it seems to me, with respect, that the words in the new Clause add very little to the common law obligation which already rests upon the employer to take reasonable care not to subject his employee to unnecessary risk of danger. The proposed words add very little to that obligation.

May I make a suggestion to the Minister? If he does not feel able to go all the way proposed by the Amendment, will he at least consider eliminating the word " reasonably " from the proposed new Clause, leaving the phrase to read and shall, so far as is practicable, be kept free from any unnecessary obstruction. The addition of the word "reasonably" reduces a little the obligation placed upon the employer, as has been said in many cases.

When the House was considering the Mines and Quarries Act, 1954, this point was stressed in the discussion. It was agreed to eliminate the word " reasonably " and the test became one of pure practicability, which seems to me to be the proper test. That Act was not revolutionary but was a conservative Measure of change.

I feel that at the very least it would be not imposing an impossible burden to eliminate the word " reasonably " and to state the obligation quite clearly in terms of practicability. I hope that at least that middle way will prove acceptable to the Minister when he looks at the point again.

Mr. Iain Macleod

I will look at both points. The word " reasonably " is very familiar in factory legislation and if we removed it we should be opening many doors. Although the hon. and learned Member for West Ham, South (Mr. Elwyn Jones) is himself a distinguished lawyer. I shudder to think what the lawyers would say if we removed the word " reasonably ". We might provide them with more work.

I will, however, look at the point, as well as that raised by the right hon. Member for Blyth (Mr. Robens), which is at what point the obstruction ceases to be necessary to the work of the factory and becomes unnecessary. In my view. as regards a packing case, that is when the machinery for the use of the factory has been taken out and it becomes simply a container and not a conveyor, but in the undertaking which I have given I will look at both those points.

Mr. John Hobson (Warwick and Leamington)

The hon. and learned Member for West Ham, South (Mr. Elwyn Jones) suggested that the words " reasonably practicable " added little to the obligation of the employer beyond that imposed on him by common law. In my opinion, it adds two strong provisions for the protection of the employee. First. it makes the occupier liable unless he can show in his defence that it was not reasonably practicable for him to remove the risk. The burden is placed on him. Secondly, it places the burden on the employer for acts of third parties for whom he is in no other sense liable.

One frequently hears of cases like the man who has been to read the gas meter in the factory. He has nothing to do with the occupier of the factory. He leaves behind a bag of tools or a banana skin. The two risks with which the Clause deals are those of slipping and tripping. Under the Amendment proposed by the Opposition there would be different obligations upon the occupier according to whether a worker slipped or tripped. If the gas board representative left a banana skin on which a worker slipped, and the employers could show that it was not reasonably practicable for them to have removed it, they would not be liable. If he left a bag of tools, over which somebody tripped, it would not matter whether the employers could show that it was not reasonably practicable to have removed it.

I cannot understand why there should be any distinction in principle between the risks of slipping and tripping. Both are grave. I think we ought not to say that employers should be absolutely liable, even for acts of third parties, in circumstances in which they could have taken no steps to remove the risk, and I feel that in this respect it is right to treat the risks of slipping and tripping equally.

4.30 p.m.

Mr. MacDermot

In view of the Minister's co-operative attitude and his undertaking to look at this matter again, we do not wish to press the Amendment further at this stage. Before seeking to withdraw it, however, I should like to add one or two comments.

There is much force in the comments made by the hon. and learned Member for Warwick and Leamington (Mr. John Hobson) in which he calls attention to a certain illogicality in the distinction between the two parts of the new Clause. The illogicality, however, begins in the Clause itself and not in our Amendments. It is the introduction of the word " unnecessary " in the first part and which is not found in the second part which has given risen to the whole of our argument.

One or other protection, either the qualification " unnecessary " or the qualification so far as reasonably practicable ", could be argued for. It is, however, stretching matters too far to insert both qualifications and I cannot see the need for the two. In the light of what the hon. and learned Member for Warwick and Leamington has just said, it may be that the draftsmen, in their ingenuity, may find a way of introducing " unnecessary " in the second part and leaving out " so far as reasonably practicable " altogether or, alternatively, of taking the other course of leaving out " unnecessary ". We still feel that it is undesirable to continue to extend qualifying words of this sort, which cut down and limit the duty placed upon the employer

The second intervention by the Minister was considerably more forceful than his first. The argument adduced by the right hon. Gentleman based on the possibility of an accidental obstruction and which an employer had not had time or was not reasonably able to remove before somebody tripped over it, obviously presents difficulties from the viewpoint of our Amendment.

I am wondering whether, when the matter is being reconsidered, the Minister, in addition to the many suggestions which have been put forward, including the suggestion by my hon. and learned Friend the Member for West Ham, South (Mr. Elwyn Jones), will consider whether it might not be possible to make the duty a stronger one and then to have a limited cutting-down of it in the form of a proviso, perhaps, in cases of accidental obstruction, but making it clear that in the ordinary case where an obstruction is, as it were, deliberately placed in the gangway or passage, an offence shall be committed unless the obstruction really is necessary. With these words, I beg to ask leave to withdraw the Amendment.

Amendment to the proposed Clause, by leave, withdrawn.

Clause added to the Bill.