Contributory negligence; employee in unauthorised place
Uddin was employed in a cement factory run by APC Ltd. He went to
a part of the factory where he was not authorised to be in order to
catch a pigeon. Uddin climbed up to a position where there was
unfenced machinery. As a result he became entangled with a revolving
shaft and lost an arm.
Uddin brought an action for damages against his employer, alleging that the shaft was a dangerous part of machinery that should be fenced in accordance with the requirements of s14 (1) Factories Act 1937
It made no difference that Uddin was in a part of the factory where he was not supposed to be or that he was doing something that had nothing to do with his work. It was enough that he was an employee that had suffered injury through a breach of statutory duty. It was therefore held that the defendants were in breach of their statutory obligations and that the plaintiff, who at the time of the injury was performing an act wholly outside the scope of his employment, for his own benefit and at a place to which he was not authorised to go, was not totally debarred from recovering damages. Responsibility was therefore apportioned on the basis of 20% to the defendants and 80% to the plaintiff.
The case offers guidance on "safe by position"
under the Factories Act and "of such construction". The Court held
that it should be foreseeable, when deciding to rely on safety by
position or construction rather than guarding, that a workman may be
stupid in his behaviour. The fact that an employee would be acting
outside the scope of his employment is not relevant to this matter.
In this particular case he was supposedly trying to catch a pigeon.
He climbed onto a cabinet, which housed dangerous machinery, and
fell in due to it being unguarded. Although he won his action, the
compensation awarded was reduced to one fifth due to contributory
negligence. Useful in relation to contributory negligence, but
otherwise this section of the Factories Act has been replaced by the
Provision and Use of Work Equipment Regulations 1998.