Tutorial 5: Breach of Statutory Duty

In the current scenario Rob and Geoff might be able to bring a claim in
for breach of statutory duty owed to them by their employer under
Dangerous Factories Act 1947 as they have sustained injury due to
machines they operated not being fenced off as prescribed in s.1 of
statute.

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In order for a claim under this tort to be successful the claimant is obliged to
determine, inter alia, the following: that the Parliament intended to protect a
class of person to which he belongs and that the Parliament intended for the
duty of breach in question to materialise in a claim for damages in the law of
tort.
The first question is whether, as Lord Steyn formulated in Gorringe v
Calderdale, from the provisions and structure of the statute an intention can
be gathered to create a private law remedy. There predominant factors
which influence the court in its decision are: what other remedies are made
available to the claimant either by the statute itself or by the common law
besides an action for damages in tort, the background of the legislation and
the debates that preceded the act, how specific the duty is: the more specific
it is, the more likely it is that Parliament intended that a breach gives rise to
a claim. Although s.5 (1) and s.5(2) state that a fine of 1,000 pounds is made
available in the event that s1 of the Act is breached and that that the court
has the discretion to order the defendant to pay 10% of that fine to the
victim, which means that a remedy is available and this is usually a strong
indicator that the Parliament did not intended for a claim to rise, the remedy
is not conclusive as sustained by the authority of Philips v Britannia Hygienic
Laundry Co Ltd and X (minors) v Bedfordshire CC. In the case if X v
Bedfordshire it was ascertained that the more specific the duty, the more
likely the courts will find that Parliament intended that a duty shall arise for a
breach of the provision. The duty in the current scenario, i.e. factory owners
must ensure that dangerous parts of machinery are fenced off, is narrowly
defined. It stated precisely what the defendants are required to do in order to
comply with the statutory provision, leaving no room for debate. Moreover,
s.5(3) states that any breach of s.5(1) may be the subject of a claim in civil
proceedings by any person who is harmed as a result. Thus, it is obvious
that the Parliament in this case did intended for a claim in tort to arise.
Was there a duty of care? -> did the C belong to the class of persons the P
intended to protect? What was that class of persons? When answering the

question who was the class of persons the Parliament aimed to protect, the
background which preceded the enactment of the piece of legislation in
matter conjoined with the preamble of the Dangerous Factories Act 1947
are of some assistance. The Act was introduced as a result of a plethora of
incidents where serious injuries suffered by employees working in an
industrial climate occurred. This alludes that the class of persons who the Act
is designed to protect individuals employed to work in factories and operate
machine that pose serious risks. The preamble of the Act further clarifies this
issue by stipulating that the Act is an Act introduced to protect those who
work in factories and workshops against coming into contact with dangerous
parts of machinery, and to compel employers to meet certain safety
standards for the benefit of such workers.
As both Rob and Geoff are employers to a company that manufactures wire
rope and chains and their duty is to operate heavy industrialised machines it
is apparent that they are able to surmount the first criterion of the breach of
statutory duty tort, falling under the category of people prescribed by the
Act.
Furthermore, it needs to be established whether the defendant breached his
duty of care. In the case of Rob, the standard of care expected by the
defendant to reach is to fence off the dangerous parts of the machines. The
law regarding dangerous facts! Apart of the machine is dangerous if it is
reasonably foreseeable that it might cause injury. (Close v Steel) Here
Kilgollan or Nicholls It was known that when the machine Rob operated was
working wires would break and the loose ends of it would fly out. It is
reasonably foreseeable that an instance as such could cause injury to the
employers. In addition to this, the statute creates a strict liability, thus failure
to comply will amount to breach even in the absence of fault. As in John
Summers v Suns Ltd, the machine is properly fenced of when it prevents
those using it from coming into contact with the dangerous parts. Rob clearly
came into contact with the dangerous part and even though it is
mechanically impossible for the machine to be fenced off, the defendant is in
breach of his duty. With respect to causation, the factual facet of it is
satisfied since, as suggested by the evidence, but for the defendants failure
to fence off the machine, Rob would not have sustained eye injury. Turning to
legal causation, Rob suffered a harm of the type the Act was designed to
protect him against, i.e. physical injury.
In the case of Geoff, his claim would fail under the causation element. If the
machine had been fenced off it would have rendered it completely unusable.

You cannot established a causal link between an action that cannot be

performed and the harm suffered by the C.
Structure: identify the C and the nature of the harm they suffered.
What the C needs to prove: did parliament intedend forthebreach to give rise, was a
duty owed to the C by the D by virtueof the relevant statutory provision, was there a
breach of the duty, did the breach caused the harm, cand the D rely on any
defences?
a) Clear indication in the statute that breach of the duty; of not the factors
b) Was there a duty? Need to determine whether the C falls within the class of
persons the statutory provision was designed to protect; what class of
persons? Does the C falls under it?
c) Standard of care expected of the C: ensure that dangerous parts are fenced
off. Define dangerous parts; what in law has been deemed
What in law has been deemed to be dangerous? Case similar to the case:
kigollan; Nichols v eff Austin; hindle v burt wisle
Nicholls v F. Austin Ltd
The C, while operating a circular saw belonging to her employers, the D, was
injured through a piece of wood flying out of the machine which was fenced so
as to comply with the requirements of the Woodworking Machinery Regulations
1922, which, by s150 of the Factories Act 1937 were to be deemed to have been
made under the Act. By s14(1) every dangerous part of any machinery was to be
securely fenced, and the Secretary of State was given power to make regulations
requiring the fencing materials or articles which are dangerous while in motion in
the machine but none had been made.
It was held by the HoL that the defendants were not in breach of any statutory
obligation, since the obligation to fence imposed by s14(1) was an obligation to
guard against contact with any dangerous part of a machine and not to guard
against dangerous materials ejected from it, a matter depending solely on the
making of regulations under the discretionary power conferred by s14(3) on the
Secretary of State and not exercised by him.

Hindle v Joseph Porritt & Sons Ltd

A stationary carrier arm coupled with a moving part of a machine did not amount to a dangerous part
of the machinery. The plaintiff, experienced in a felt milling process, had his hand caught while moving
the felt in the machine; his arm was carried up and twisted and he hit his shoulder against a
stationary carrier arm, which was not itself inherently dangerous.

Held, (1) that there was no breach of statutory duty; and (2) that the accident would have happened
whether or not the carrier arm had been fenced.

Kilgollan
It is well settled that the obligation to fence imposed by the Factories Act 1937 s.14 , is an obligation
to guard against contact with any dangerous part of a machine and not to guard against dangerous
materials ejected from it. The plaintiff was employed by the defendants as a strander in their wire
rope factory. She was in charge of a stranding machine consisting of a barrel which revolved at over
800 revolutions a minute. It was admitted that at times a wire would break and the loose end of it
would fly out. People had sustained minor injuries on a number of occasions. It was the duty of the
strander to stop the machine so that the wire could be mended. While the plaintiff was in charge of
the machine in question, a wire broke and a small particle flew out of the machine and struck her in
the eye, the sight of which was destroyed. The revolving barrel was admittedly a dangerous part of
machinery and therefore should have been securely fenced against contact under the Factories Act,
1937, s.14(1). The upper part had been fenced with a wire mesh guard, but the lower part was not
fenced, although the defendants had been recommended by a factory inspector to do further fencing.
The plaintiff alleged that the defendants were in breach of their statutory duty under s.14(1) and also
alleged negligence at common law. Pilcher, J. found for the defendants.
Held, on appeal, (1) no obligation to fence was imposed on the defendants by the Factories Act 1937,
s.14(1), because what injured the plaintiff was not a dangerous part of the machine but something
manufactured or put together in it; (2) before this accident happened there was a duty upon the
defendants to take proper and necessary steps to avoid this sort of accident, and if they had done
that, this accident would not have happened; consequently, the defendants were responsible in
damages for breach of their common law duty and the appeal must be allowed.

In the present case, that which came out from the machine was a part of that which was being
manufactured or put together in the machine: it was material being used in the machine; and
upon the decision to which I have referred it is clear that this court cannot accede to the first part
of the argument advanced by Mr. Drabble.