Summers (john) & sons ltd v Frost (1955) 1 A11 ER 870

Issue

Absolute Duty

Court:

 Criminal

Act, Regulation or Reference:

Statute FA 1937, s 14(1); FA 1961, s14(1)

Date: 1955

Facts

While operating a power driven grinding machine Mr Frost's thumb got through a small gap between the guard and the grinding wheel. He claimed compensation for his injury, alleging breach of statutory duty.

The Decision

The house of Lords unanimously ruled that there had been a breach of statutory duty. The requirement that dangerous parts of machinery should be securely fenced was absolute. It was not subject to derogation or dilution by such words as 'as far as reasonably practicable'. The duty was to provide fencing which absolutely prevented any part of any person working on the premises from coming into contact with any dangerous part of the machine. If the effect of this was to make the machine unusable then so be it.

Notes

Lord Morton thought that fencing should prevent an employee's clothing from coming into contact with dangerous parts of a machine.
The standard of fencing must be good enough to keep out the careless or inattentive worker as well as the meticulous, careful one.

The plaintiff was grinding a piece of metal on a grinding machine and was injured when his thumb came into contact with the grinding wheel. The upper part of the machine was guarded, but the grinding wheel itself was not.

It was held that the employers were liable for a breach of section 14 (1) of the Factories Act. That required that the dangerous part ‘shall be securely fenced’ was absolute, and if a dangerous part cannot be so fenced, the Act implicitly prohibited its use.

The court stated that part of a machine is dangerous if it might be reasonably foreseeable expected to act in circumstances, which may be reasonably expected to occur.

 NB The Abrasive Wheels Regulations 1970 in practice have modified the provision of the Act in respect of this type of machinery.

 NB The House of Lords endorsed the views expressed in Davis v Thomas Owen Co Ltd (1919) 2 KB where it stated “The statute does not say that dangerous machinery shall be securely fenced if that it is commercially practicable or mechanically possible. If a machine cannot be fenced while remaining commercially practicable or mechanically useful, the statute in effect prohibits its use”.

NB The defendant argued that if a grinding wheel was securely fenced the machine would be unusable. The court rejected this proposition and refused to read the words so far as is reasonably practicable into the statute.

NB This case created the situation that all grinding wheels were illegal unless all the wheel was contained within a guard. To overcome this the government introduced the Abrasive Wheels Regulations 1970 (since revoked) which permitted a lower standard of guarding than that required by the Factories Act.