THE FACTORIES ACT, 1961, SECTION 14(2)

HL Deb 25 April 1963 vol 248 cc1321-58

3.52 p.m.

LORD SHEPHERD rose to call attention to Section 14(2) of the Factories Act, 1961, which now deprives factory workers and others of the full protection that they enjoyed under the Factory Act, 1901; to urge Her Majesty's Government to amend the 1961 Act as soon as possible; and to move for Papers. The noble Lord said: My Lords, I beg to move the Motion on the Order Paper and to draw the attention of your Lordships' House to the effect of the Factories Act, 1961, which I believe reduces or limits the protection which factory workers enjoyed under previous legislation, in particular the Factory and Workshop Act, 1901. It is rather pleasant, after the controversy and Party heat of yesterday, to enter into rather calmer waters, but I personally approach this subject this afternoon with some trepidation, particularly as I see that I shall be answered by the noble Viscount who leads the House and that there are also on the list of speakers three Members who are Law Lords and to whom we look with some fear and trepidation.

This is the fourth attempt within six months to try to find a satisfactory solution to what many consider to be an unfortunate position in regard to law. However, experience has clearly shown how often, if we try, try, try again, it is possible to succeed, and I hope that this afternoon we shall make a great step forward. In the first instance, may I express to the Government, to the usual channels and to your Lordships' House my sincere thanks for being able to bring this Motion forward at such short notice? I wish to do this because we are between stages of the Offices, Shops and Railway Premises Bill, where, in a particular clause, the words that have caused difficulty in the Factories Act are included. I am also grateful that the debate has been arranged at this time so that those Members of the judicial section of our House can take part. I am untrained in law, and I therefore invite anyone to intervene at any time if I should put too much stress, one way or the other, on decisions that have been made by legal courts.

I do not believe there is any division between the Government and Members of your Lordships' House, in this matter. On March 6 the Attorney General recognised the serious position of accidents occurring in factories. During 1960 there were 190,000 accidents, of which 2,500 can be directly attributable to objects flying out of the machine—either parts of a machine, or the work that the machine is undertaking. What appears to divide us is the method of dealing with the problem: whether it is, as my friends feel, by amending the Factories Act and, of course, the Offices, Shops and Railway Premises Bill, the Report stage of which is to be taken next week, or (as was dealt with by the Minister in another place and in Committee in this House some two weeks ago) by the use of regulations.

I think the first thing I should try to do is to establish three points, one of which I have already spoken about: that is, the seriousness of the position that there are 2,500 accidents attributable to flying objects taking place in our factories. I have no details. The Ministry concerned is unable to give me the figures of accidents attributable to tools being used by a worker coming into contact with a dangerous part of a machine and causing injury to the person. Nor have they information as to the number of accidents which arise through clothing coming into contact with machines.

The two other points I should try to establish are, first, what was the law so far as the Acts of Parliament of 1878 and 1901 are concerned and the court decisions arising from them, and, secondly, what is the law to-day following the passing of the 1937 Act and the 1961 Act, and again the decisions that have arisen in the courts and in your Lordships' House. May I put to the House what I and my friends feel should be done in this matter? The first major Act was in 1878, which was consolidated in 1901. I hope the House will appreciate that, in the main, protection to workers on machines must be fencing—the guards that are provided. I think the House will also agree that from 1901 until to-day there has been considerable improvement in machines, the fencing and the guards. But I think it would also be recognised that during this time the speed of operation has increased and so has the power of the machine. Therefore, what we may have gained by increased efficiency in fencing of machines may not, on balance, be so great, because of the increased speed and power of the machines.

I would ask the House to bear with me while I read part of Section 10 of the 1901 Act, dealing with fencing. Section 10(1)(c) reads: All dangerous parts of the machinery and every part of the mill gearing must either be securely fenced, or be in such position or of such construction as to be equally safe to every person employed or working in the factory as it would be if it were securely fenced.… I would stress these words equally safe to every person employed or working. Here it is quite clear that it includes all classes of persons in a factory, and I would suggest also that it is quite clear that all dangerous parts of machinery shall be fenced. These very clear and precise words, which have laid an absolute duty upon the employer and have given absolute protection to the worker, were the law for 68 years.

The definition, as I understand it, for the 1901 Act regarding dangerous machinery was that if in the ordinary course of human affairs danger might reasonably be anticipated from use of it without protection, fencing had to be provided. But I think it is true to say that this Act would have been governed by what is called the "foreseeabilty test", which is, provided it is foreseeable that an injury could result from a moving part of a machine, there was a duty on the part of the employer to fence and so protect the worker from danger. If the part was dangerous when in motion, if danger was foreseeable and if injury resulted from the failure to fence, the employer was liable and the workman could recover damages. The question of foreseeability took into account the characteristic and history of the machine and the particular operation.

If the words of the 1901 Act were not clear, the supporting cases—two of which I propose to mention—made it abundantly clear to all. First of all, in 1897 there was the classic case of Hindle v. Birtwistle, the case in which a weaver in his course of work was struck by a shuttle and injured. A claim was made, the decision was given to the plaintiff and damages awarded. I would suggest that here was a case where it was clearly indicated in the eyes of the law that fencing had to cover the question of flying objects—parts of the machine flying out.

A further research showed me that there was a further case, that of Davies, Owen (Thomas) and Company in 1919. This was a case where workmen were involved in the cutting up of logs by using a circular saw. In this case the logs were so large that the particular circular saw, without having the guards removed from it, could not cut the wood, and the employer, with the workmen's consent, removed the guards and an injury was caused. When it went to the first court, as I understand it, the jury found that it was not commercially practicable to fence the machine securely. An appeal was heard, and it was held in this case in 1919 that the obligation imposed upon the defendant to fence the machine securely was absolute. I refer to the word "absolute". Because he failed in this duty, the employer was liable for damages. The Appeal Court further said that the obligation imposed under the 1901 Act was unaffected with regard to some particular machine by the fact that it might be commercially impracticable. I think perhaps that this case illustrates some of the difficulty, which no doubt the noble Viscount who leads the House will develop in his reply.

Undoubtedly there is some difficulty in providing laws or regulations to cover so many types of operation in machinery. I believe that at this present moment that is not the real issue. I have tried to establish that under the 1901 Act there was an absolute protection and duty, and I believe I am right in saying that thousands of cases, either in court or outside, over this period of 68 years, between 1878 and 1946, were decided upon the first case I quoted, that of Hindle v. Birtwistle.

Before coming to the chain of events that have resulted from the passing of the 1937 Act, I should like to ask the Leader of the House whether he would agree that, if an Act has been in existence for 50 years, clearly understood in law, with no doubt about it at all, and if there were to be any major change, in particular to the limitation of protection to the workers, it would be reasonable to presume, first, that the intention of the Government of the day to make a change was due to overriding reasons for the change, and, secondly, that the Government, when presenting the Bill to either House of Parliament, would so inform the House of their intention to amend the law. I have very carefully read all the Hansards relating to the 1937 Bill, both for the House of Commons and for your Lordships' House, and I can find no mention of the anticipated change in law. In fact, the noble Earl, Lord Munster, the Minister responsible in your Lordships' House at the time, did not even mention the particular section. Therefore, I think it is reasonable to presume that when the Government presented the 1937 Bill to Parliament they did not intend any change.

In the case of Sparrow v. Fairey Aviation the noble and learned Lord. Lord Reid—and I quote now from 1962: All England Reports, at page 709—when he was referring to the effect of the Nicholls decision (which I shall mention in a few moments), in talking about the words contained in the 1961 Act (to which I shall also come in a few moments), said that if their presence in the Act turned the case in the Nicholls case that would mean that by inserting them that Parliament narrowed the meaning of 'securely fenced' and thereby deprived workers of part of the protection they had enjoyed before these provisions were inserted. I find it impossible to believe that Parliament could have intended to do that. My Lords, here is a case of a noble Lord, sitting in a Judicial capacity, who took the view, from the evidence that is available to any of us, that it was not then Parliament's intention, or the Government's intention, to amend in any way the previous provisions.

The noble Lord, Lord Newton, on April 4 on Committee stage of the Offices, Shops and Railway Premises Bill, when I raised this matter, said [OFFICIAL REPORT, Vol. 248 (No. 67) col. 762]; I would wholly reject the suggestion that it was some kind of underhand move to make life easier for employers. It was never my intention or even suggestion. My case has been all along that the law has been changed inadvertently. It may have been due to drafting; but the law was changed, and, so far as I can see, the Government of the day and Parliament were not aware of the change in the law.

I should like now to read Section 14 of the 1937 Act. Subsection (1) says: Every dangerous part of any machinery, other than prime movers and transmission machinery, shall be securely fenced unless it is in such a position or of such construction as to be as safe to every person employed or working on the premises as it would be if securely fenced. Those are the same words as in the 1901 Act. Now I come to subsection (2) which contains the words that have caused all the trouble: In so far as the safety of a dangerous part of any machinery cannot by reason of the nature of the operation be secured by means of a fixed guard, the requirements of subsection (1) … shall be deemed to have been complied with if a device is provided which automatically prevents the operator from coming into contact with that part. The words which appear to have caused all the trouble are the words: prevents the operator from coming into contact with that part". I would ask the House to remember those particular words. As I said, when they were included nothing was said in either House of Parliament as to whether those words limited the previous provisions at all, and I think it is safe to say that Parliament assumed that it was merely a drafting Amendment.

I hope that I shall have the special sympathy of the House because I must now deal with some of the decisions of this House in its Judicial capacity—because I claim that, irrespective of what may have been in the Act, it has been the decisions of the House of Lords in its Judicial capacity that have eroded the protection enjoyed by the factory workers for 68 years. The first case which caused considerable concern in industry was Nicholls v. Austin, in 1946. It is very important because it was from that decision that the further decisions made by the Courts and your Lordships' House stemmed. The case arose out of an accident in which a woman worker was working at a wood-sawing machine. She was injured by a fragment of wood which she was feeding into the machine. It was ejected from the machine, and flew out and hit her in the eye. The decision of the Court was that there was no liability on the part of the employer and no breach of Section 14 of the Factories Act, 1937. The noble and learned Lord, Lord Simonds, said: The fence is intended to keep the worker out, not to keep the machine or its products in. Perhaps your Lordships will now see the considerable change in the law. In fact, I would ask you to consider for one moment the case of Hindle v. Birtwistle, which concerned the shuttle, and this particular case, Nicholls v. Austin, which related to the splinter of wood—both objects ejected from a machine. In the former case the claimant succeeded and obtained damages, in the latter, the case failed and there were no damages.

There is yet another case, Carroll v. Andrew Barclay & Sons, Limited, which concerned a belt of transmission machinery. The belt ran over pulleys, and there was a fence 5 foot high which in the ordinary way would have provided adequate protection; but in this case the belt broke, lashed out over the fence and struck the plaintiff. The decision of the Court was that the plaintiff's case failed, and it failed because of the application of the principle in the case of Nicholls v. Austin: that there was no duty to fence against part of the machine flying out. I would say here that I recognise that, where I am quoting cases, it is difficult to decide, without hearing all the evidence and witnesses, whether the judgment was right; but I think I am right in saying these cases I am quoting are cases which began to make the law. Certainly the decision in Nicholls v. Austin, is one on which other cases are decided.

I mentioned earlier the foreseeability test. This was of considerable importance, and I would remind your Lordships of it. If there is a part of a machine which foreseeably could be dangerous—through its characteristics, or its history —then there was a duty on the employer to fence. But the decision in Close v. Steel Company of Wales set aside even that protection. This was a case in 1961 of a worker who was using an electric drill, the bit of which came out and shattered, a piece entering the workman's eye. It was held by your Lordships' House in 1961 that even if the danger was foreseeable the employers would not be liable under the section, as the obligation under the section was to provide fencing for the purpose of preventing the body of the operator coming into contact with the machinery—the same principle as Nicholls v. Austin. I would ask your Lordships to note the words, that "even if it was foreseeable" there was no duty; there was no liability. The noble and learned Lord, Lord Denning, made this comment: I fail to see how any speeches in this House can bind your Lordships to hold that a dangerous part of a machinery need not be fenced when the Statute expressly states that it shall be. The further case I would wish to quote—I am sorry to do it, but I think it is necessary to establish the case—is Sparrow v. Fairey Aviation, in 1962. This concerned a lathe worker who was engaged in removing the burring around the central hole in a petrol filler cap, using for the purpose a tool called a scraper. The tool came into contact with the jaws of the chuck, with the result that his hand was flung against another part of the machinery, which was not itself a dangerous part and therefore did not require to be fenced, but the jaws of the chuck were dangerous. The decision of the House was that they were part of the machinery which was not securely fenced, but (and I would ask the House to listen to these words) as it was the tool and not the man's hand which came into contact with the dangerous part it was held that the employer was not in breach of the section as the section did not require the employer to fence the dangerous part so as to protect the workman against the risk of a tool coming into contact with a dangerous part of the machine, and this was so even though the tool was being perfectly properly used by the workman and there was no negligence whatsoever on the part of the workman. The workman failed to recover damages because it was the tool, and not his hand, in the direct instance, that came into contact with the machine. The noble and learned Lord, Lord Reid, said: If I simply had to go to the words of the statute unaided by authority, I would find it difficult to see any answer to the Appellant's case. The jaws were dangerous, they were not fenced, they were not as safe as they would have been if securely fenced. The Appellant was riot negligent and was in the course of his ordinary work. His hand was injured as a result of a tool he was properly using coming into contact with the jaws. This section has been subject to three decisions in this House. Those are the previous decisions that I have mentioned.

Then is one further case. I will not go over it so far as causes and decisions are concerned. It is the case of Eaves v. Morris Motors in 1961. I will merely draw the attention of the House to the remarks that were made by Lord Justice Holroyd-Pearce, as he then was (he is now a Member of your Lordships' House) because they are so important. He says: There is now no protection under the Act of 1937 against a class of obvious perils caused by dangerous machinery, arising from such machinery ejecting pieces of material or even pieces of the machine itself at the worker; and there is thereby left a gap in the statutory protection which neither logic nor common sense appears to justify. Those are firm words.

I would come now to the position in regard to the Act of 1961, which consolidated the other legislation, including the 1937 Act. Sections 12 and 13 are in Part II of the Bill, which is concerned with safety and fencing. Sections 12 and 13 deal with respectively prime movers and transmission machinery. I believe that the words in these two sections are clear and could perhaps be said to be absolute. I would draw the attention of the House particularly to Section 13(5). Having given the general provisions and general protection, subsection (5) reads: Where the Minister is satisfied that owing to special circumstances the fulfilment of any of the requirements of subsections (2) to (4) of this section "— this is dealing with devices and appliances, electricity and the like— is unnecessary or impracticable, he may by order direct that that requirement shall not apply in those circumstances. I would suggest that if Section 14, which is concerned with other machinery, had been so presented, the present decisions that have been made by the House of Lords might never have occurred, because then there would have been, in Section 14, complete coverage, the absolute duty, the absolute protection, that where in relation to a machine it might be impracticable to give this protection by guard, the Minister could by order exempt such a machine.

That is what I should like to come back to in a moment in my suggestion, but I would submit that under the present Act there is no duty, no liability in law, to an injured workman in regard to work or part of a machine flying out, or the tool coming into contact with the machinery. I would also say that I have serious doubts as to whether, if a workman were injured by reason of his clothing coming into the machine, he would be covered.

My other query on this matter is in relation to the attitude of the House of Lords towards the word "operator": whether in fact, for instance, the tea girl going down between the lines of machines and being injured by a machine would be covered, even though she were employed in the factory. The noble Viscount opposite may screw up his face at that suggestion, but my point is that the Act clearly states "the operator". It might be argued that the tea girl was not the operator of the machine. Obviously, she was not an operator of the machine. Therefore, the Act might possibly be so construed, and such a case might arise. The noble Lord, Lord Newton, on the Committee stage, with some temerity, I thought, suggested that the Law Lords might have misinterpreted the Act: that this was not the first time that it had happened. But whether it has been misinterpreted or not is not for me, as a layman, to decide. It is, however, clear from the decisions that I have quoted, that the law is now being administered and decided upon decisions that have been taken in your Lordships' House, stemming from the case in 1946 of Nicholls v. Austin.

Can we change the law? The noble Lord, Lord Reid—I am quoting now from the OFFICIAL REPORT, Commons, Vol. 673 (No. 71), col. 528; I beg his pardon for that but I could not find this in any book—is reported to have said: It is too late to question the rule which this House laid down in the Close's case, and we must do our best to apply it in a practical way. Accordingly, with regret and some hesitation, I must move that this appeal be dismissed. It is clear there that the attitude of the law is that the law has been made and has been decided, and if there is to be any change it follows that it must be by Statute. Another noble Lord then said: … is a doctrine to be honoured in the interests of consistency and certainty; but to apply it here would be to break new ground without advancing those interests, and to reach a point where the intention of Parliament could suffer erosion by a sort of judicial inadvertence which even the most anxious circumspection cannot entirely avoid.

What are we to do? Are we to be content with the position that now exists; or are we to say to the Government that in our view the law is wrong, irrespective of whether the law as it was drafted and passed in 1937, or as the noble and learned Law Lords apply it, is wrong? Are we to be content? I think that the justice of the matter demands that in the public interest it should be made clear that there is a duty to fence all machinery in such a way that full protection to the worker is provided.

I believe we must impress upon the Government that the present position should be rectified as quickly as possible. The Government could perhaps offer us regulations. I certainly appreciate that they have full effect in law—that a man can obtain damages by reason of the breaking of a regulation. But I think I am right in saying that, in general practice, regulations would relate to specific machinery and operations. Obviously, without a multitude of regulations we should not be able to provide the full protection which previously existed under the 1901 Act. Therefore I would suggest that the only solution, if we accept that the law is wrong and that it needs to be adjusted, is that this should be done by amendment of the 1961 Act. I believe that would be possible, and that it would be right that we should set out on the premise that the law should be as absolute as is possible; but that where that is impracticable, then exemptions can be made by order. The Government have this power in the 1961 Act, in Sections 12 and 13. In subsection (5) which I quoted some moments ago, they have the absolute protection, the absolute duty; it gives them the power of exemption. Therefore, I would recommend to the House that in the interests not only of the factory workers, but also of the courts, we must amend the law. I think it is wrong that we, recognising, in our own judgment at least, that the law is being wrongly administered, with lack of justice to workers, should put the persons who must administer and decide on these things in the position of administering a law which Parliament—and also, I think, public opinion—would not support. Therefore, I hope the Government will recognise that if the law is wrong it should be put right.

My Lords, I come to my last point, and this is one of the reasons that I have pressed this matter to this extent. Although I am dealing mainly with the Factories Act, the very words which I quoted from the 1937 Act and which have caused all the trouble by limiting this protection to the operator's coming into contact with a machine, are now included in the Offices, Shops and Railway Premises Bill. Whether or not the Government are agreeable to amending the 1961 Factories Act now, I would sincerely suggest to them that it would be wrong for us to allow these words, in the knowledge that they have created this limitation, to remain in the Offices, Shops and Railway Premises Bill. If they are included in the Bill and it is passed, we shall be recognising the limitation of this law and will be condoning it. I do not think this House, with its record of humanity, would agree to accept something which it knows to be wrong and to let it go through. Therefore I would ask the Government at this very stage to make sure that these particular words are omitted from the Offices, Shops and Railway Premises Bill, and within a reasonable time to effect an amendment to the 1961 Act and thereby give justice to the workers. I beg to move for Papers.

4.32 p.m.

LORD DENNING

My Lords, I should like to support this Motion. The law at the moment is illogical, inconsistent and absurd. The noble Lord, Lord Shepherd, has indicated that it is the fault of Section 14(2) of the 1961 Act; but I am afraid one has to face the fact that it is the fault of the interpretation which has been put on it by this House sitting judicially, which is infallible, which never makes a mistake, and which can never correct itself.

Let us see the state into which the law has got. The words are perfectly simple: Every dangerous part of any machinery … shall be securely fenced… To the ordinary man there is no doubt what that means, but I want to tell your Lordships of the three categories into which the law has separated that very simple provision. Take the first category of where a machine is dangerous because a man may put his hand into it, and take the ordinary circular saw which revolves at a great pace. It is obviously dangerous because when the man puts a piece of wood in to be sawn, his fingers may come against the saw. It is quite clear, and is still the law, that that saw must be securely fenced by a guard so as to protect the man from putting his fingers in the saw. It has been long established; there is no doubt whatever about it.

But let us take the next step. Suppose the machine is dangerous, not because a man may put his fingers into it but because pieces may fly out. We had a case in the Court of Appeal when I was there in 1953 involving a woodworking machine called a vertical spindle moulding machine. It has cutters revolving round at about 4,000 revolutions a minute, moulding woodwork into curved shapes, and those little cutters have to be screwed in quite tightly; but, because of the pace of the revolutions when moulding the wood, they may fly out. Indeed, there was a Home Office circular saying that this was the cause of many accidents, and accidents were caused by these cutters flying out and injuring or even killing people standing by. I am glad to say that when I sat in the Court of Appeal I held with my colleagues that that was a dangerous part of machinery and ought to be securely fenced.

Then when my noble and learned friend Lord Goddard was sitting in the Court of Appeal he had a similar case, which involved a carborundum wheel. Your Lordships know what carborundum is. This was an abrasive carborundum wheel, and when it revolved at 4,000 revolutions per minute it was apt to break into pieces and scatter around. Obviously, Lord Goddard said, a dangerous machine; obviously it ought to be fenced; and he so held. Everyone, so far as I know, was content. But now it has been held, more I think by observation than by decision, that this Act does not protect a worker from pieces flying out. My noble and learned friend Lord Simonds, in an arresting aphorism, said that the purpose of the fence was to keep the worker out, not to prevent pieces from the machine or its products flying out at him. Well, as I have said, it sounds very arresting, but it is not good sense. They are both equally dangerous parts of the machinery and ought to be securely fenced.

The case came before this House sitting judicially and I had the honour to be presiding, but unfortunately I was in a minority. The case was decided on an entirely different point: that in that particular case of Close v. Steel Company of Wales it was not dangerous;, that bits just flew to the floor and it was not dangerous at all. But by a whole series of obiter dicta, not affecting the actual decision of the case, the majority of this House, sitting judicially, held, and it is now accepted as the law, that although the machinery is dangerous by pieces flying out, there is no duty to fence against that, but only against a person's putting his hand in. That is one inconsistency which certainly ought to be remedied. Indeed, the Court of Appeal have held otherwise in three cases, and we have been overruled.

I turn to the last inconsistency, which has appeared only in the last year. Taking again the same aphorism, that the purpose of the fence is to keep the worker out, I would ask, what if the worker holds a tool in his hand, or is wearing trousers, or if a lady is wearing a scarf? The purpose of the fence is to keep the worker out; but apparently you have not got to fence against keeping the tool out which the man is holding in his hand. It is queried and left uncertain whether you have to keep his clothes out. In the latest case in this House, which was a case concerning jaws revolving round at a tremendous pace, a man, in order to smooth off a piece of the metal, had to put his scraper in against these revolving jaws. The tool slipped in the revolutions, and, because the tool slipped, his hand was thrown off against the side and he was severely injured. It was a dangerous machine all right, as everyone would have thought, revolving at this pace, and the work was dangerous for him to do. But he did not come into contact with it; only his tool did, the scraper which he was using. The case was put: suppose a man got his trouser caught in the machine and he was thrown to the ground. Is there any need to fence against that? Must we fence against the great majority of cases that arise from the Factories Act over the years, of girls getting their hair caught in the machines, or a piece of clothing, or whatever it may be which is dragged in? Of course, one would say the machine is dangerous and ought to be fenced.

Then there is the other inconsistency. There is the simple case which is accepted: if the man puts his hands in it is dangerous; but although a bit flies out, the machine need not be fenced against a piece flying out, and need not be fenced against a tool or possibly against clothing. What stage have we reached of inconsistency and, I would add, of injustice! If the man is at fault and is partly to blame, the law provides for that by saying that he suffers loss of part of the damages. But one of the most beneficial pieces of legislation of the century, has been that which imposes upon the owners of factories an absolute duty to fence against dangers.

What is the argument to the country? I ought to mention the way it is put. There is this subsection (2), to which my noble friend Lord Shepherd has referred. How did that come into play? I can tell your Lordships exactly how it happened. It used to be thought that there had to be a fixed guard on these machines. I do not know whether your Lordships know these power presses; these great presses come down and press a piece of steel into a tin box, a piece of a motor car, or whatever it may be. You could not have a fixed guard on a thing like that, because a person would never be able to put the piece of metal in. It was said in several cases: "Well, we cannot construe the Act so as to mean that machines cannot be worked at all. You cannot have a fixed guard which means that the machines cannot be worked." So it was said: "It is sufficient if you have an automatic guard, which automatically comes into play at the crucial moment." So in the case of a power press the woman or the worker, can put the piece of metal into the press, but before the press can be brought down, the guard comes into operation and she is automatically safeguarded. That was the whole object of Section 14(2).

But because of a few words just at the end of that section, which I am sure no in legislatively could have contemplated, all this elaborate superstructure has been erected. The original law from Hindle v. Birtwistle in 1897 onwards, was to protect dangerous parts of machinery which ought to be securely fenced against pieces that were thrown out, or against whatever was the danger. So that very beneficial body of law which existed from 1897 certainly to 1937—and, indeed, it was in the Court of Appeal so held right until quite recently—has by recent decisions of this House really been taken away. My Lords, it is a disgrace to the law that it should remain unremedied; and if the decisions of this House judicially, as is our convention, are absolutely binding on successors, and if the House sitting judicially cannot correct its own mistakes, then it is imperative in the law that legislatively this House, sitting as a Legislative Chamber, should immediately take steps to remedy defects in the law when they are exposed. Therefore I would support the Motion of my noble friend Lord Shepherd, and ask also that this position be remedied in the new Bill to come.

4.45 p.m.

LORD REID

My Lords, I venture to intervene for a few minutes, because some prominence has been attached to some remarks which I made in a case last year, and I do not withdraw one of them. I shall explain a little more in a few minutes what I had in mind. But I go only part of the way with my noble and learned friend, and with the noble Lord, Lord Shepherd, for reasons that I shall state in a few minutes.

There is one matter, however, on which I should like to say a word before I come to the point of this Motion; I refer to the animadversions of my noble and learned friend Lord Denning upon cases subsequent to the original offender, Nicholls v. Austin. It is perfectly true that many cases have followed that decision, but your Lordships are probably aware that, rightly or wrongly, it has been the rule for nearer 200 than 100 years that decisions of this House, sitting in its Judicial capacity, are unalterable except by legislation and must be followed in subsequent cases. I was constrained last year, and my noble and learned friend ought to have been constrained in his case, to follow Nicholls v. Austin. I have said more than once that I should be happy to see a modification of that very strict rule. But, unlike my noble and learned friend, I take the view that so long as a rule lasts we ought to obey it. For that reason, I do not think it is useful to go into the judicial decisions given since 1946, the year in which Nicholls v Austin was decided.

But there is one matter that I think is sometimes left cut of account. I do not say that it removes wholly the ground for complaint—it does not—but it ought to be kept in mind when we are considering these matters. There are two methods by which you can bring your case before the court. You can either sue for Common Law negligence, or you can sue for damages in respect of a breach of the Act of Parliament. In the case of Common Law negligence, of course, you have to prove that the employer was at fault. You would normally prove that either by showing that other people did what he failed to do (that would not apply here), or you would prove it by showing that there had been similar accidents in his works, or other works that he knew about, which ought to have put him on his guard, and that he ought to have done something. If you can prove negligence against your employer, you can always have a remedy. The only reason why it is common to use the Factories Act, even in cases where negligence could be proved, is that it is easier, from the point of view of trouble and expense, to bring your case forward in that way. Accordingly, the position at the moment is not that there is no remedy where something flies out from a machine or a machine breaks and causes an accident, but that before you can recover damages you must prove some fault against an employer.

What the noble Lord, Lord Shepherd, wants is to achieve or restore the position that you can get damages against your employer without proving any fault whatever against him. Noble Lords may feel that we ought to think twice about how we are going to do that. I think myself, as I said in the case of Sparrow, that probably the case would have been decided differently under the old Act. The noble Lord, Lord Shepherd, has said that there were many cases in which damages were given under the old Act. That is true. But, of course, the issue never came before this House, and it is not certain—although I agree it is possible—that, if it had come before this House between 1878 and 1937, this House would have reached the same decision as it did in 1946. But my own view is that it would have reached a different result.

The reason why this different result was reached was a simple one. There were two or three additions—at any rate, more than one—to the 1937 Act which appeared to throw great doubt on the interpretation which had previously been accepted. I would think it extremely improbable that Parliament, or anyone advising Parliament, intended those additions to limit the scope of protection; but in 1946 I think the House held, no doubt by mistake, that they had limited the scope of the Act. Therefore, I agree that there is a strong case for doing something. But what? It is at that point that I am inclined to differ slightly from the speakers who have already addressed your Lordships—and for two reasons.

In the first place, lawyers are inclined to regard the Factories Act as something which gives damages to workpeople. But that is not really its purpose. The primary purpose of the Factories Act is to prevent accidents, and paying damages after accidents have happened is only a second best. Therefore, when we are considering what ought to be done to remedy this position, it appears to me that we ought to begin with the question, "What is most likely to prevent accidents?", and not, "What is going to make it most easy to collect compensation after they have happened?" If we are to have a system which is going to work satisfactorily, it ought to be a system which is comparatively easy to administer. I am not an expert in factory machinery—although, of course, over a number of years of practice (more years than I care now to think of) one acquires a good deal of knowledge of these things —but I think there is a very clear dis- tinction betwen fencing to keep the worker out and fencing to keep the machine in. The usual case, of course, is to keep the worker or his clothes out, and normally that is not a very difficult problem. It may be difficult from the engineering point of view, but it is not a difficult problem to say where a fence is necessary. One can almost always see at a glance where the danger is. Therefore, a general obligation to fence, without more, is probably an adequate guide, both to employers and to factory inspectors who have to advise employers and, if necessary, enforce the Act; and there is no difficulty. But when one comes to fencing to keep the machine in, I would expect a great deal of difficulty.

The first thing is this: how are you going to tell whether the part is really dangerous? Because the obligation is to fence only against dangerous parts, and these parts are dangerous only if they are going to break or if they are going to throw things out violently. Of course, if it has happened before the question is easy. If a machine has a habit of breaking or of throwing out bits of wood or something else, then it is quite easy, and, of course, there ought to be a fence. From the point of view of the worker it is equally easy. He sues at Common Law, and he gets his damages—"The manager knew perfectly well this machine was liable to break, and he did not do anything about it": the plainest possible case of negligence. What we want is not something to enable damages to be recovered in that case, but something to prevent accidents; and I can foresee a great deal of dispute, both in the practical sphere and in the courts (about which, perhaps, I can speak with a little more authority), about what is a dangerous machine in this regard; and one does not want to start off with that kind of trouble.

Therefore, I would think that there are two steps which ought to be taken. The first is to make certain that the present Act is wide enough to authorise sufficiently comprehensive regulations—and I say that for this reason. Though I have not gone into the matter, I am not quite certain that the Act is wide enough to authorise regulations which would apply in the case of a machine throwing out bits of the material with which it is working, like the wood that was thrown out from the woodworking machine. Therefore, I think it ought to be checked whether the Act is wide enough to authorise sufficiently comprehensive regulations. It may be that that has already been done; I do not know. Then, secondly, I should like to see regulations of a sufficiently comprehensive type which would give practical guidance to the employer, and still more to the factory inspector, as to the kind of machine he is to regard as a dangerous machine, and therefore necessary to be fenced. Because I really do not think that it is going to be easy to enforce the Act from a prevention point of view unless there is some practical guidance of that kind.

I think that the matter ought to be dealt with, and I think it ought to be dealt with as speedily as may be; but, for my part, I would suggest, my Lords, that once we have checked that the Act does not require amendment to allow comprehensive regulations, we ought to get on, with skilled advice from all sides—employers, factory inspectors, trade unions and everybody who can help—with the preparation of a practical scheme for the protection of the worker. I do not believe that it would take so very long to do that, and I would expect that to be well worth the delay, far it would produce very much better results than merely amending the Act. So I would support this Motion in so far as I think something ought to be done, but I do not altogether support the way in which it has been suggested that it should be done.

4.57 p.m.

LORD EVERSHED

My Lords, you will perhaps think that we have already had enough of a legal lecture, but I hope I shall be forgiven for retreading the path just a little in order to emphasise the two points that I should like to submit to your Lordships, and particularly to put a matter for the consideration of the noble Viscount. My own judicial experience in this matter is limited to having taken part, not as a Member of this House judically but as a Member of the Court of Appeal, in the Close case, for which the noble Viscount will no doubt say that I am rather lucky. That was a case in which, as the noble Lord, Lord Shepherd, said, an operator was injured by a bit of the machine itself which flew out and hit him. The happening of that event, however, in the view of the trial Judge and of my Court, and also I think of this House, was so unforseeable that, upon the general principle which was consistent with the old 1897 law, the man could not recover.

However, it was the view of my Court that a difficulty had arisen through the two decisions of this House in the cases of Nicholls and Carroll: whether what had been said in Nicholls had the result that a machine, or part of a machine, was no longer to be called dangerous because bits of the machine were apt to fly out. If your Lordships will forgive me for speaking for one more minute on this point, in the Nicholls case it was not a bit of the machine, but a bit of the material on which the machine was working, that flew out; and so it was the view, I am afraid (I say this, of course, with humility), of my Court, the Court of Appeal, that what had been said by the House of Lords in the Nicholls case upon keeping a worker out of the machine was obiter. And we thought in the later case of Carroll, which was a case where a part of a machine flew out, but again a case in which it was very unlikely to happen, that on that account the person could not recover.

We in the Court of Appeal thought it would perhaps be a good thing if this House were to say that Nicholls had not gone so far as it might appear to have done. To the disappointment of my colleagues and myself, only my noble and learned friend Lord Denning and one colleague were of that opinion: the majority felt bound by the so-called rule of precedent to hold from thenceforth that they were bound to say that the machine was not dangerous, within the meaning of the Act, because bits of it were liable to fly out. On that view it would appear that that was the view to be taken. To me and my colleagues the result was, to say the least, somewhat illogical and not very good sense. "Every dangerous part of any machinery"—those are the essential words. It seemed to us that a part of machine might be dangerous if bits of it were liable to fly out and hit a man in the eye.

I have mentioned this in order to say that, like my noble friends who preceded me, I feel rather strongly that this is a matter which is not now satisfactory. As to the way in which it should be dealt with I will say something in a moment. But may I, my Lords, have your indulgence to say this? It has been suggested that my noble friend Lord Denning was less true to the rule of precedent than he ought to have been. For reasons that I do not go into now, I am not sure that I agree with that. But I do wish to say—and I submit this to the noble Viscount in all seriousness—that I feel that our rule of precedent in this country has become over-strict. It was not so strict half a century ago. It is not so strict in other parts of the English-speaking world and other parts of the Commonwealth. May I express the hope that this House might at some time consider this matter, and perhaps pass legislation limiting in some way the strict application of the rule of precedent?

A NOBLE LORD

I do not think that we need legislation.

LORD EVERSHED

I am encouraged to hear that. I will support my noble friend when I can. But if legislation should be needed I hope that this House would find occasion to give time to it and perhaps also to the very strict or literal interpretation of Statutes which in this case, perhaps, has led to some of the difficulty, and to differences between this country and other members of the Commonwealth. However, that is a bee in my bonnet which I will not allow to buzz any more in this House to-day.

May I come back to the question before us? I would further strongly support what fell from the noble and learned Lord, Lord Reid: what we should obviously mainly consider in this Statute is protecting people from injury. Which is the best way to do it is a matter on which I do not feel competent to express an opinion. My only point is that if it should be thought better—and I can see the force of doing it this way—to leave it to regulations, obviously the Statute, or section of the Statute, under which the regulations are made, must be wide enough to comprehend what is thought most desirable to protect workmen from injury from machines, which are none the less dangerous because they throw things out as distinct from attracting a man in. I should therefore like to give my support to my noble and learned friend Lord Reid, not entirely in return for his promise on this matter of precedents.

5.5 p.m.

LORD DOUGLAS OF BARLOCH

My Lords, if I may delay your Lordships for a moment, I should like to support the case which has been made by the noble Lord, Lord Shepherd, for action with regard to this matter. It is perfectly true, as the noble and learned Lord, Lord Reid, said, that the object of the Factories Acts is to prevent accidents; but it is also an object of the Acts to impose a sanction to ensure that the proper steps are taken to prevent accidents. That sanction is the right of the workman to secure damages for an injury which he suffered by reason of the breach of duty which has occurred.

It is true that there is in some cases an alternative remedy under Common Law—an action for negligence against the employer. But, as the noble Lord, Lord Reid, has said, in order to succeed in that it is necessary to prove that the employer was negligent; that he knew there was some danger to which his workpeople were being subjected, and that he did not take steps to avoid it. This is exactly like giving the dog his first bite. Somebody has to suffer first before it becomes established that the machine is dangerous that the employer has therefore been negligent at Common Law, and that the workman is entitled to succeed in a claim for damages. When that stage has been reached the sanction begins to operate, and there is a very strong inducement to employers to see their machinery is properly fenced.

Let us never forget, however, that these Statutes were imposed for the benefit of the workpeople, because Parliament recognised that the workman is very often in a disadvantageous position in these matters. He does not know what may have happened in other factories; his access to evidence which will prove negligence on the part of his employer may be greatly restricted, and the same accident may happen in quite a number of factories (if it is not a breach of the Factories Acts) before sufficient evidence has accumulated to enable some workman to take proceedings for negligence successfully. In the meantime a number of workmen have been injured for life, or, it may be, have lost their lives, without any remedy whatsoever. This is a very serious matter, and I am not at all content to think that it should be left to the indefinite future to find a remedy for it.

My practice as a solicitor is not commonly concerned with matters of this kind; but, even so, I have come across quite a number of cases in which workmen have sustained very serious injuries, especially injuries to the eye, by reason of fragments, either of the tool or of the material upon which it is working, flying out and hitting them upon the eye. In some cases, let me point out, it may be very difficult indeed—and here the law has got into a state of extreme confusion—to tell whether an article which has hit the man in his eye is a fragment of the tool or a fragment of the metal upon which the tool has been working. Both are metallic objects, and possibly it is difficult to find out which is which, especially if after the accident the tool may be removed, may completely disappear and may not be open to inspection.

Therefore I press the case that there is strong ground for amending the Factories Act. I think it will need amendment. I have not considered this point, but I doubt whether it can be done by regulation, because this problem has arisen out of the construction of a substantive part of the Act by the highest judicial authority in the country, and I shall be a little surprised—but it may be so—if regulation is capable of amending the Act so as to overcome it. If it can be done that way, and done quickly, so much the better; but it certainly deserves to be done.

5.11 p.m.

VISCOUNT HAILSHAM

My Lords, in his opening speech, the noble Lord, Lord Shepherd, said he approached the subject with trepidation. I do not think he need have felt any trepidation. As I think the House will agree, he acquitted himself in an extremely able and erudite manner, in an extremely able and erudite field of speakers, on a subject requiring a good deal of erudition. I do not know whether I should feel trepidation or not —I am not quite sure but I do. I should like to explain, first of all, why I come to be here replying to this debate. It is that my noble and learned friend on the Woolsack had intended to do so, but was prevented from doing so only by intense pressure of work.

But, to tell your Lordships the truth, I am not sorry on this occasion to take his place. Although my work in the Government has kept me away from the law since 1956, I used to be reasonably familiar with the Factories Acts, and it has been something of a labour of love in my case to go back to the Library of the House and select the volumes which had not already been purloined by the Law Lords, in order to familiarise myself with the latest decisions, in most of which the noble and learned Lords who have spoken and others who have not spoken but are present arrived at divergent conclusions about the meaning of the provisions of this Act.

I hope I may be forgiven if I make one or two general observations, which I think are germane to the subject of this Motion, although I fear it will prolong my remarks a little. When we are dealing with legislation and cases of this kind we are dealing with something which is intensely complex, because of the engineering questions to be decided, and intensely difficult, because of the law. It is not made any easier by the fact that most engineers know no law and, I say it with due respect, few lawyers know much engineering. There is an almost complete absence of understanding between the two branches of technology which approach this difficult question.

To hear most of the talk, until the speech of my noble and learned—if he will allow me, without compromising his political integrity any longer—friend (as I was once able to say without the qualification) one would have thought that the Factories Act and all the cases about it which have been cited had as their principal purpose what is undoubtedly one of their principal effects: to provide the workman with compensation in case of injury from his employer. This, as my noble and learned friend Lord Reid reminded us, is not at all the case. It comes as a shock to anybody coming into contact with these Acts for the first time—it certainly came as a shock to me some 25 years ago—to find that there is not one word about compensation or damages from beginning to end of these Acts. Indeed, from 1802, when the first in the series of Acts came to be passed, until the present day, each of the Acts, read by itself, is seen to be designed as an addition not to our civil but to a criminal law, designed to create offences and to impose penalties. It was not until 1898, when a certain Mr. Groves sued a Member of your Lordships' House, the then Lord Wimborne, that anyone even guessed that an action could be brought for damages for personal injury for a breach of statutory duty under these Acts at all.

The whole business, if it is illogical and if it is inconsistent, as my noble and learned friend on the Cross Benches called it, is judge-made law. It is vital to remember—and I think there have been occasions during this debate when even learned Judges who have contributed judgments cited in this book have tended to forget it—that in fact judges only award damages for acts or omissions under the Statutes which the law declares to be offences, except, of course, in the case of negligence, with which, at the moment, I am not concerned. Indeed, it is worth saying, because it is going to be germane to my argument, though I do not happen to agree with the opinion, that as recently as 1954—that is to say, after I took silk—the late Lord Somervell, who was widely experienced as a Judge and a Law Officer, told me, when arguing a case in court, and later repeated to me in private, that he thought the decision in Groves v. Wimborne had been wrong and was the basis of all the trouble. I mention this because it has a distinct bearing on this subject.

What the noble Lord, Lord Shepherd, is asking us to do is to legislate in a particular way, which I shall try to persuade him is not the right way to deal with this, at any rate under the Statute, in order to deal with what I think we all by now accept as a very serious problem. We can legislate under the Statute only by imposing a duty upon employers, and we can do so conscientiously—and this I must insist upon—only if the duty is one which Parliament really wants to place upon an employer, for the breach of which he can be fined up to £300 under Section 156(2) of the Act. Of course, if he breaks that duty and becomes liable to a fine, and if an accident occurred, then the judges have said, and in my opinion rightly said, that the workman can recover damages for breach of statutory duty against his employer. But one thing Parliament must not do, with respect—that is, in the hope of giving a few injured workmen additional damages, impose upon an employer a duty which it cannot justify as a duty. That would be intellectually dishonest, and however one might sympathise with these cases—and I do not think that one who has practised in the courts in this field of business and seen the consequences of these accidents in great numbers can be unsympathetic to them—if one is going to do this particular thing, the duty must be a duty which we can justify as a duty.

This brings me to the fencing provisions of the Act. Here, with the greatest respect, I am going to differ, not with those noble Lords who have spoken, but with the noble and learned Lord, Lord Pearce, from one of whose judgments as a Justice of Appeal the noble Lord, Lord Shepherd, perfectly properly quoted. This brings me also to subsection (2) of the Act of 1961, which is directly mentioned in the noble Lord's Motion, and which was originally the proviso, I think, to subsection (1) of Section 14 of the Act of 1937. The fencing sections of the Act to which I am going to refer are three in number: Section 12, which deals with prime movers and, I think, fly wheels attached to prime movers; Section 13, which deals with transmission machinery; and Section 14, which deals with dangerous parts and is the particular section to which the noble Lord has referred in his Motion.

LORD SHEPHERD

I think Section 14 really concerns other machinery, does it not?

VISCOUNT HAILSHAM

I did not know that I had said anything different, but I accept what the noble Lord says. Section 14 has, and the other sections have not, subsection (2), which is the subsection to which the noble Lord refers in his Motion; that is confined to Section 14. Of course, it is true (the noble Lord was quite right when he said this) that Parliament did not believe it was changing the law in any respect when it passed the proviso to the Act of 1937. That proviso was introduced after long discussion between the trade unions, the Ministry and the employers' organisations as a virtually agreed proposal in order to deal with the subjects referred to by the noble and learned Lord, Lord Denning, in his speech. There are paper slicing machines and power presses for which fencing is not an appropriate remedy at all, and so subsection (2) provides an alternative method whereby, instead of fencing the machine, you can keep the worker outside the danger area altogether; and it says that that will do.

This has a very direct bearing on the Motion. It simply would not do to remove those words out of the Act, or out of the Shops Bill, because the effect of taking them out would be a retrograde step. It would not have the effect, as I submit, but whether it has the effect or not, it would not be the appropriate way, of achieving the object the noble Lord has in mind, because it would mean that no power press in this country could be legally operated if it was of the kind referred to by the noble and learned Lord, Lord Denning; and the same is true of a number of other machines, of which a paper slicing machine is one.

I do not reproach the noble Lord for being in error; indeed, it is with great trepidation that I say I think he is in error, because a number of noble and learned Lords have said in their judgments, and in this House, that they think the addition of that proviso was the operative clause in changing the law. In the passage of Lord Justice Holroyd Pearce's judgment, which the noble Lord cited, it was said quite emphatically that it did change the law, although the noble and learned Lord, Lord Reid, was a little more cautious. But the fact is that the case of Carroll v. Andrew Barclay & Sons Limited which followed was a case of transmission machinery, to which the subsection does not apply; it was a Section 13 and not a Section 14 case. This, I think, ought to have put learned judges a little on their guard against saying that it was this subsection which altered the law.

What is even more remarkable about this case (and here again I say this with great respect to noble and learned Lords and their brethren) is that when Nicholls v. Austin came to be decided, as it was decided, about the ejection of a piece of wood—that is to say, not part of the machine, but a piece of material used in the job—although undoubtedly the proviso, the present subsection (2), was used as a reason for interpreting the Act in the sense described by Lord Simonds in his famous aphorism, neither counsel nor Judges seem to have been aware, so far as one can judge from the report, that those words had only recently, within the last ten years, been added to the Act. The whole judgment proceeded on the supposition that they had been there all the time.

I seriously suggest to noble Lords that this is not beyond remedy outside Parliament in its legislative capacity. If they had really realised, first of all, that one of the authorities did not refer to Section 14 at all, but to Section 13—that is to say, to a section to which the proviso could have no effect., because it was transmission machinery—and if they had realised that this proviso had only been added to the Act in the last ten years, and then not with any obvious intention of altering the law, they could, I think, have used it as an argument illustrating what they claimed—and it may be rightly—to be the original danger against which the Statutes were aimed to protect the workman; but they could not possibly have used it in the way that the strongly worded judgments which are recorded one after the other are cited in the books. I regard this as an extraordinary piece of legal history, and I do not think Parliament is to blame.

LORD AIREDALE

Is not Parliament to blame for not having thought of and cleared up the point which is clearly and succinctly expressed as a query in the headnote in Sparrow v. Fairey Aviation?—which says this: Query. Whether an operator's clothes may be said to be so much part of him as to come within the purview of the section. Surely that is a matter which legislation can decide—whether the operator's clothes count as the operator himself for the purpose of this subsection.

VISCOUNT HAILSHAM

May I perhaps go on with the current of my argument, but with this interjection in answer to the noble Lord, Lord Airedale. I have never entertained this doubt. I read the query in the headnote with surprise and considerable disapproval, and I really think it is a fanciful doubt, whoever may have expressed it. The law has now been administered sufficiently long for us to know that clothes count for this purpose. I really think it is a bit of a surprise to find that people at this hour of the day are doubting it. I will report the various things which have been said about clothes in the course of the debate, but I honestly think that people are worrying themselves unduly about clothes. I do not think anybody will say at this hour of the day that clothes do not count.

This brings me to the crucial matter. There are, I am told, about 32,000 a year of these accidents connected with machinery and the fencing of machinery; and that is a sizeable number. The great majority of them are accidents in which either the clothes or the workman, and more usually the workman, come into contact with the actual moving parts of the machine. But, as the noble Lord, Lord Shepherd said, a sizeable number, 2,500—that is a lot of people, although a small proportion—get hurt in one way or another in what rather compendiously and rather indelicately have come to be known as the ejection cases; that is to say, cases in which either bits come out or similar things happen. Everybody would agree, I think—and I am approaching this now from the engineering and factory inspector point of view rather than the legal point of view—that in so far as the danger consists in the man, his hair or his clothes getting into the machinery and pulling him in, causing him personal injuries, it is a perfectly simple case to lay down on the employer an obligation to fence the machinery—that is to say, to fence it against the man. This has been done in Sections 12, 13 and 14, if the decisions have been rightly decided to that effect—and personally I think they have.

I do not share all the doubts which have been expressed about the decisions. partly because so many of them are based upon reasoning which can be shown to be faulty. But the same is not true of the ejection cases. Take, for instance, prime movers and fly wheels attached to prime movers—that is to say, the Section 12 case. Take, for instance, those heavy reciprocating blocks at the end of piston rods which the old-fashioned reciprocating machinery used to have, or any heavy flywheel which can fracture, either because it comes into contact with an alien object or because there is fatigue in the metal. It will fly through a wall, far less a fence—a fence in the sense of what is meant by these fences.

Take the case—I am afraid I cannot carry the names of all these cases in my head—of a drill which shatters and a small piece of material comes out and strikes the workman in the eye. The trouble there can be that the nature of the job is such that the man, in order to be safe at all, must see what he is doing. The factory inspector therefore requires that the fence should either be a grill or a series of bars. The piece flies through the grill and through the series of bars, and hits the man in the eye. What is the right remedy? Not a fence. The right remedy is either a shield, which is done in some cases with a small window through, or a pair of goggles. In another set of cases which are arranged by factory regulations, in addition to the fence the machine can be required by regulation to have a couple of flanges on the outside to stop that kind of thing happening in particular directions in which the workman is likely to be. But that is not a fence. That is a requirement of regulations and, of course, if any part of it is broken the workman is entitled under the Act to recover damages for breach of statutory duty.

The noble and learned Lord, Lord Reid, and the noble Lord, Lord Douglas of Barloch, in different tones of voice, inquired about the power to regulate. I think the power to regulate is amply here. First, under Section 14(6) there is a limited but relevant power of regulation. The subsection reads: The Minister may, as respects any machine or any process in which a machine is used, make regulations requiring the fencing of materials or articles which are dangerous while in motion in the machine. That covers materials and articles which are dangerous, and this may be regulated.

Then there is an additional power of regulation under Section 76(1), which says: Where the Minister is satisfied that any manufacture, machinery, plant, equipment, appliance, process or description of manual labour is of such a nature as to cause risk of bodily injury to the persons employed or any class of those persons he may, subject to the provisions of this Act, make such special regulations as appear to him to be reasonably practicable and to meet the necessity of the case. I made inquiries, of course, when my noble and learned friend from the Cross Benches asked the question. Not only does that appear to mean what it says, but I am assured that it really does mean what it says, and there is a sufficiently wide power of regulation to handle this business.

This brings me to these specific questions: first of all, the question of hand tools. I think the noble and learned Lord, Lord Denning, and certainly the noble Lord, Lord Shepherd, found something absurd in the decision about the case where the hand tool came into contact with the chuck. I confess I feel some uneasiness about the result of that case, though not so much about the reasoning which led to the result, because I could not help noticing that the noble and learned Lord, Lord Reid, in his judgment pointed out that nobody had said that the chuck itself was a dangerous part of the machinery, which I think it clearly was. All they had said was that the jaws of the chuck were a dangerous part of the machinery which, though they were, had not caused the injury to the hand. This may have been a mistake in the pleading and argument of the case which may have affected the result. But, leaving that aside, I do not find any difficulty about the reasoning.

I would emphasise that if the worker can reach where the tool will go, and there is danger, fencing is already required. We are considering now the case where the tool in the machine knocks the worker against a part which is, by definition, otherwise not dangerous. In many cases the inspectorate have actively encouraged the use of tools as a way of keeping the worker out of danger—rammers, for instance, to press material into the hopper of a mixing or grinding machine, or oil cans with long spouts to reach through a guard. These measures have in fact removed the greater part of the risk. They have not given rise to numerous or serious accidents. On the contrary, my advice is that these practices contribute materially to industrial safety, and my right honourable friend's advice is that he would regard it not only as impracticable but as positively harmful to provide that it should be illegal for a tool to be brought into contact with a. dangerous part of a machine.

Now take lathes. A lathe, I need hardly tell your Lordships, is one of the commonest of machine tools in use at the present time. Of course, guarding can be provided against some dangers—for example, guarding can be provided against the revolving chuck which holds the workpiece. But in the area between the chuck and the tool which does the job—the area where the actual operation is carried out—the only way to provide the secure fencing which would prevent the ejection of fragments of metal would be to enclose the whole machine, and this would be, I should have said, an impossible hindrance to its quick and accurate operation. As a matter of fact, this is exactly what happened, as a matter of history, after one of the cases which the noble Lord, Lord Shepherd, cited: I think it was Davies v. Owen (Thomas) and Company. That was the simple case of a circular saw, and at that stage in the development of the law there was an absolute obligation under the terms of the Statute to fence the circular saw securely. I think it was established that the saw could not be used at all if this was complied with. The courts felt bound to give effect to the words of the Statute, and said, in effect, that an offence had been committed, and that damages could be recovered.

Of course, once that was found out, it was impossible for it to continue, for the reason that I tried to establish at the beginning of my speech. Nobody could use a circular saw which did not have a gap of about 2 inches for the wood to go through. The result is that the regulating power had to be used there, not to step up, as I would suggest was the right way here, but to relax the terms of the Statute, and to say, "so far as practicable", so that the thing became reasonable. This, of course, would be bound to be true with lathes which, as I say, are the commonest of the machine tools.

Take, for instance, the grindstone or the abrasive wheel. There is danger, of course, as I think the noble and learned Lord, Lord Denning, pointed out, from fragments of the wheel or metal being thrown off at high speed, and also from the fracture of the whole wheel. Obviously, much can be done either by partly enclosing the wheel, by providing screens or goggles, or by mounting the wheel between flanges which will help to hold it if it breaks. But, here again, the only form of fencing which would be regarded as secure fencing would be complete enclosure by a strong guard, and this cannot be done. One must get at the wheel to use it. Therefore, one has to provide a proper regulation to deal with the specific danger and in order to guard against it.

Take again the classic case which was the subject matter of Hindle v. Birtwistle, of a shuttle from a loom. May I say in passing that, just as in Nicholls v. Austin nobody bothered to argue or point out, or even to know that the words referred to were in the Statute only during the last ten years, so in Hindle v. Birtwistle, which we have been arguing to-day, it was never suggested for one moment that it was not a contested decision for argument. The only point argued in Hindle v. Birtwistle was whether the machinery was dangerous machinery, and the only thing decided in the case was that the foreseeability test applied. Incidentally, may I say that the foreseeability dispute which the noble Lord, Lord Shepherd, brought forward is still part of the law of this land.

At any rate, take the shuttle of the loom; there are about 100 accidents a year from this, so it is quite an important source of accidents. It has long been a study between the Factory Inspectorate and the joint safety committees of employers and workers, and, although substantial improvements have been made, no safeguard has yet been devised which will give complete security against the ejection of a shuttle in any direction. The fact remains that the yarn must be accessible in the loom.

It would be possible to multiply those examples because the fact is that, as industry becomes more and more complicated and machines become more and more specialised, it is quite true, as the noble Lord, Lord Shepherd, says, the dangers do not decrease because the speed of operation is sometimes much greater and the power of the machinery is sometimes a great deal more. But the kinds of danger against which we must guard are no longer the same kinds of danger of the simple, old-fashioned lathe and the transmission machinery consisting of belts and pulleys: and they do require specialised provision.

This is where the powers of regulation come in and this is where the Government agree with the speech of the noble Lord, Lord Reid, to whose speech I should like to pay a special tribute. The advantages of regulations are that they can be adapted to the particular circumstances of each machine. They are precise and lay down absolute, unqualified requirements where absolute and unqualified requirements are appropriate, and they can make less stringent provisions in cases of difficulty. And they are made, which the Act of Parliament has not always stipulated, in full consultation with both sides of industry. It is the invariable practice to circulate preliminary drafts to both sides of industry and to seek the fullest measure of agreement: a statutory draft must by law be published in any case and, if there are objections, they can be aired at a public inquiry.

There are a good number of regulations which already deal with part of this hazard. Under the Protection of Eyes Regulations, eye protection, in the form of goggles or screens, is required for certain processes, including grinding with fixed wheels, turning non-ferrous metals and cast iron, oxy-acetylene welding, and for a number of operations with hand tools. The Aerated Waters Regulations were made to deal with the risk of bottles shattering during filling—again, something for which a fence would not be the appropriate remedy. The Woodworking Machinery Regulations require protection at circular saws and vertical spindle moulding machines. The Non-Ferrous Metals Regulations require screens against flying materials in certain foundries.

My Lords, further action immediately in hand is as follows. A preliminary draft of regulations on the fencing of abrasive wheels is shortly to be circulated. There has been understandable criticism of the length of time since the original draft was published, and I think that that criticism is in many ways justified. But the draft, which will shortly be open to comment, will differ very substantially from the earlier one. And in recent months work has been going on and has been pressed forward. Proposals for the revision of the Woodworking Machinery Regulations, with special reference to stronger precautions against flying cutters and pieces of wood, are now being prepared in the Ministry for discussion with the interested parties. My right honourable friend is also considering extending the Protection of Eyes Regulations, 1938, which require goggles to be provided in respect of certain processes not at present covered, including drop forging, steel turning and grinding with portable wheels. This will give a measure of protection at machines where no fencing to stop ejected fragments can be devised.

My Lords, further evidence of the risks will be collected and scrutinised and all possible precautions will be considered. Where it is considered that there is a risk, and that strengthening the law will effectively reduce it, I assure you that my right honourable friend will not hesitate to make regulations.

I must apologise for having taken such a long time. This is a strange mixture of technical law, technical engineering and a human problem. There is no royal road to getting the right answer to these things. One tries to approach the legal questions with a scholarly mind and the engineering questions with a practical mind; and at the end, of course, one must apply human judgment, full of fallibility, to the particular circumstances of the case. But my general answer to the point which has been perfectly legitimately raised, and most interestingly raised, by the noble Lord is this. I do not think, for the reasons I have given, that the mere omission of subsection (2) is the right answer in any event. Broadly speaking, I would submit that what are loosely called "ejection cases" really cover such a multifarious type of accident that the old words relating to fences as a general rule apply only to some of them, and, even then, need to be applied to particular types of operations and machines by regulations, rather than by a general enactment which would apply to the whole of industry, and, I should have thought, would be less appropriate than what my right honourable friend is trying to do.

5.48 p.m.

LORD SHEPHERD

My Lords, this has been a very important debate and I think its importance has been increased by the speech which the noble Viscount has made this afternoon, because it must be obvious to all that he has gone into the matter with his usual form of dedication. I personally am very grateful, and I am sure the House will agree with me. May I thank those who sit on the Cross Benches, particularly, if I may say so, the noble and learned Lord, Lord Denning, for his forthright support to me? I would not disagree with the noble and learned Lord, Lord Reid. Certainly, the object of all of us is not merely to find some way in which a worker can obtain compensation for injury arising from an accident; what is in our minds is the prevention of accidents. But, as my noble friend Lord Douglas of Barloch said, the imposition of penalties is one of the ways in which we can get advances towards safety. Perhaps in the case of road accidents, if, where there is an infringement, there was a penalty lodged upon the driver, and not upon the insurance company, we might get a little more safety on the roads. But that is beside the point.

Obviously, this should not be a night of decision. The matter certainly cannot be left where it stands, and certainly we shall wish to see what the Minister can propose. As I said at the beginning of my remarks, what really divides us is the way to set about it. My own feeling, quite honestly, is that we should give the absolute protection and then, as the noble Viscount who leads the House quite rightly said, deal with the problems by specific regulations. But if the attitude of the Ministers and the Government is that we should deal with it rather on a more slow stage—not deliberately slow, but to make sure that all points are covered and that there should be justice to the worker and the employer—that is one point; and there perhaps we can differ.

I should hope, and I think, that the Government will believe that it is the feeling of this House that there is here a basic injustice. There is the possibility that employers may not do the full duty that they should do, and probably would have had to do if the law had been stricter and if the Law Lords had not departed, as the noble Viscount suggested. However, if it is the feeling—and I hope the Government will accept that it is—that there should be a rapid and determined move by the Minister of Labour in this matter, then the purpose of this debate has been well served. I beg leave to withdraw my Motion.

Motion for Papers, by leave, withdrawn.