Walker v Clarke
| Jurisdiction | Jamaica |
| Judge | Macgregor, C.J. |
| Judgment Date | 20 March 1959 |
| Neutral Citation | JM 1959 CA 3 |
| Court | Court of Appeal (Jamaica) |
| Date | 20 March 1959 |
Court of Appeal
Macgregor, C.J.; Cools-Lartigue J.A.; Duffus, J.A.
Alberga for the appellant.
Leacroft Robinson for the respondent.
Tort - Employer's liability — Factory — Dangerous machinery — Dough — brake machine in bakery — Duty to fence securely — Whether machine dangerous a question of degree and fact — View of machine by the court — Contributory negligence — Factories Law, Cap.124 — Factories Regulations, 1943, reg.3.
This is an appeal by the defendant from the judgment of a resident magistrate, Kingston, in, which he awarded the respondent damages for injuries sustained by him when his fingers were crushed in a dough-brake machine which he was operating at the appellant's bakery. The appellant submitted that the learned resident magistrate erred in concluding that the machine was dangerous in breach of reg.3 of the regulations made under the Factories Law, Cap.124 [J.], and, alternatively, that the respondent was negligent. At the close of the arguments we dismissed the appeal but promised to put our reasons in writing. This we now do
The dough-brake machine was described in the evidence tendered before the resident magistrate, and was inspected by him. The members of this Court also had the advantage of doing likewise in the presence of the parties. We were fortunate in that we saw it in operation with the respondent working it. It is used for the kneading of dough, and is operated mechanically. It was operated by the respondent, whose duties were to direct the dough into the rollers, to receive the dough from them and to re-direct it back in. This continued until the dough was properly kneaded. The rollers are at the back of the machine. As the dough comes in contact with them it is, by their action, pulled between them and passed through and up, coming out at the top where it is directed forward towards the front of the machine. To prevent the dough falling back on the rollers there is a shelf, perhaps some six inches wide, extending over and; forward from them. As the dough is ejected and falls from the shelf, the operator catches it, gives it a twist to make it more bulky, and again directs it back towards the rollers. Immediately in front of them and extending out about two feet is a circular turntable, slightly convex in shape. At its nearest point it is perhaps 2 or 21/2 inches from the rollers. The operator stands in front of the turntable to operate the machine. When we saw the respondent operating it he stood more to one side than directly in front, and was much nearer to the rollers. The machine is electrically driven and is easily turned on and off by a switch beside it and within arm's reach of the operator as he stands in front of it. In addition, around the front of the turntable is a fixed bar and upon the slightest pressure of hand or body against it the machine is immediately switched off. Upon being switched off it stops, almost instantaneously.
As the lump of dough to be kneaded is placed on the turntable by the operator, the machine is started. The table, as it turns, carries the dough towards the rollers at the back. The convex shape of the table tends to throw the lump of dough against the rollers so that the dough can be caught by them. But to make sure that the dough is taken up by them, the operator with his fists, or his open hands, which the respondent used when we saw him operating the machine, pushes the dough against the rollers. As the dough comes over the shelf, he twists it and again pushes it towards the rollers. It is to be remembered that the shelf is only about six inches wide, therefore the dough falls on the rear half of the turntable, so that the operator now works much nearer to the rollers than when he started. It is plain to see that as he starts to push the dough, his hands immediately go under the shelf. The more he pushes the nearer his hand gets to the rollers. The less dough he has in front of him the quicker his hand goes towards the rollers. There is no fence or other protection to prevent his hands coming in contact with the rollers.
On February 25th, 1958, when the respondent was operating the machine, he was kneading dough for bread. He saw a piece of dough for patties on the machine near the other dough. If that dough had been caught up with the bread dough it would have spoilt the latter. He attempted to remove the patty dough at a time when it was under the shelf and was going towards the rollers. In this attempt his fingers were caught between the rollers and he was injured.
Regulation 3 of the Factories Regulations, which are to be found at p.125 of the JAMAICA GAZETTE P.R.AND O., 1943, reads as follows:
“Every dangerous part of any machine shall be securely fenced unless it is in such a position or of such construction as to be as safe to every worker as it would be if securely fenced.”
This regulation is almost the same as s.14 (1) of the Factories Act, 1987 [U.K.], except that this latter has, in addition, a proviso, to which reference will be made later.
In our judgment the learned resident magistrate correctly stated the questions which arose for his decision. They are:
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(1).Are the rollers a dangerous part of the machinery? If the answer to question (1) is “yes,” then,
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(2).Is that dangerous part securely fenced? If the answer to that question is “no,” then,
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(3).Is the machine in such a position or of such a construction as to be as safe to every worker as it would be if securely fenced?
In a careful and well-reasoned judgment the learned resident magistrate answered all these questions in favour of the respondent and we agree with him. We would be content to adopt his reasoning, but as we were informed that the machine is the very latest model and is used in the leading bakeries in Jamaica, it is as well that we express our own reasons.
That the learned resident magistrate correctly expressed the first two questions he had to decide is clear. In Carr v. Mercantile Produce Co., Ltd. (1) ([1949) 2 K.B. at p.607) Stable, J., said:
“Now it appears to me that these findings [i.e. of the magistrate] may mean, either, that even in the absence of the guard the worm was not dangerous or that the worm, situated as it was at the time of the accident, beneath the guard, was not a dangerous part of the machine for the reason that though without the guard it would have been dangerous, the guard rendered it innocuous or in other words that a dangerous part of the machine was securely fenced.
To avoid any possible ambiguity in future cases, in my judgment, the proper approach where there is a machine with a guard, is first, to inquire whether in the absence of the guard any part of the machine could properly be described as dangerous. If the answer is no, the adequacy or otherwise of the guard as a...
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