[1955] EACA 334

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill (President), Sir Newnham Worley (Vice-President) and BRIGGS, Justice of Appeal

## REGINA, Appellant

$\nu$ .

## NASSA GINNERS LIMITED, Respondent (Original Accused)

## Criminal Appeal No. 79. of 1955

(Appeal from the decision of H. M. High Court of Tanganyika, Harbord, J.)

Factory-Fencing-Extent of duty to fence-Gaps-Test of "foreseeability"-Factories Ordinance, 1950, section 22 (1), 23 (1), 72 (1), 73 and 75—Reversal by first appellate court of findings of fact by trial court-Whether question of law.

The respondent company was the occupier of a cotton ginnery which was a "factory" within the Factories Ordinance, 1950.

In the ginnery was a cotton opener machine containing "transmission machinery" and thus requiring to be securely fenced. The machine required to be lubricated at frequent intervals. An "L"-shaped fence of expanded metal was provided for the machine, the long arm thereof preventing accidental contact therewith by passers-by whilst the short arm was in the form of a door. Lubrication could be effected only by opening the door.

$P$ , an employee of the respondent company, was charged with the duty of lubrication of the machine during the daytime and he was under orders never to open the door without first stopping the machine. On a certain day, he did open the door without stopping the machine, his clothing was caught, he was severely injured and he died of his injuries. 4

The respondent company was prosecuted on two alternative counts: (1) with causing the death of $P$ by the failure to fence securely, contrary to section 75 of the said Ordinance and (2) with failing to fence securely contrary to sections 22 (1), 72 (1) and 73 of same Ordinance.

The trial magistrate convicted on count 1 and acquitted on count 2.

Sections 22 (1), 23 (1) and 72 (1) of the Ordinance provide as follows: $-$

"22. (1) Every part of any transmission machinery shall be securely fenced unless it is in such a position or of such construction as to be safe to every person employed or working on the premises as it would be if securely fenced.

23. (1) 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: Provided...

72. (1) In the event of any contravention in or in connexion with or in $\frac{1}{2}$ relation to a factory of the provisions of this Ordinance, or of any rule or order made thereunder, the occupier, or (if the contravention is one in respect of which the owner is by or under this Ordinance made responsible) the owner, of the factory shall, subject as hereafter in this Ordinance provided, be guilty of an offence."

Section 73 of the Ordinance makes provision for penalties for offences for which no express penalty is provided in the Ordinance, whilst section 75 provides. penalties in case of death or injury.

On first appeal the High Court was of the opinion that the respondent had securely fenced the machinery, that P had rendered the fencing insecure and thereby contravened the Ordinance so that the respondent company were: vicariously guilty under section 72 (1) aforesaid of an offence under section 22 and could have been sentenced under section 73 of the Ordinance, viz. on count 2, but that no conviction could lie under section 75, viz. on count 1, since that section required contravention thereof by the accused person himself. It therefore quashed the conviction entered by the trial magistrate. The finding of fact by the High Court had reversed the magistrate's finding.

Held (31-3-55).—(1) As the fence contained a gap which was intended to be regularly used, and was closed only in the interval between the times of use, the occupier's duty was to ensure that it could not be left open in such manner as to produce a general insecurity even for short periods, viz. the occupier should have ensured that the door could not be opened if the machinery was in motion.

(2) The duty to fence properly cannot be performed merely by giving instructions which, if followed, will ensure safety. The occupier must foresee, not only that an employee may do his work carelessly or forgetfully, but a in breach of orders, disregard those precautions.

Smith v. Chesterfield Co-operative Society Limited and Charles v. S. Smith & Sons (England) Limited followed and applied.

(3) The test of "foreseeability" has two applications under the Ordinance. In cases under section 23 thereof, it must be applied in determining whether a particular piece of<br>machinery is "dangerous", which does not apply in cases under section 22, no doubt<br>because all transmission machinery is dangerous, whether fencing is secure.

(4) The question whether a first appellate court, which has reversed a finding of fact. of the trial court, has sufficient grounds for so doing, is a question of law.

Appeal allowed. Order of High Court set aside. Conviction entered, and sentenceimposed, by trial magistrate, restored.

Cases referred to: R. v. Seymour, 38 C. A. R. 68; Wachira v. R., 21 E. A. C. A. 398; Burns v. Joseph Terry & Sons Ltd., (1950) 2 A. E. 987; Jackson v. National Coal Board, (1955) 1 W. L. R. 132; Smith v. Chesterfield & District Co-operative Society Ltd., (1953) 1 (1954) 1 W. L. R. 389; Wraith v. Flexile Metal Co Ltd., (1934) K. B. 24.

Sir James Henry, Attorney-General (Tanganyika) for appellant.

Respondent unrepresented.

JUDGMENT (read by Briggs, J. A.).—This was an appeal by the Crown from an order of the High Court of Tanganyika quashing a conviction by the Resident Magistrate, Mwanza. We allowed the appeal and now give our reasons.

The respondent company is the occupier of a cotton ginnery, which is a "factory" within the meaning of the Factories Ordinance, 1950, of Tanganyika. In the factory there is a machine called a cotton opener, operated from a power shaft by a system of fast and loose pulleys and a driving belt, which are "transmission machinery" within the meaning of section 22 of the Ordinance, and must therefore be securely fenced. There are a lever operating the fast and loose pulleys and a brake to stop the machine. It is not in evidence whether the loose pulley is on the driving shaft, so that the belt would become stationary when it is in use, or on the driven shaft, in which case the belt would continue to move when the machine is stopped. The former is clearly preferable in the interests of safety and we think it fair to the respondent to assume that that is the system used. The cotton opener itself, and perhaps also the driven shaft, require to be lubricated at intervals of an hour to an hour and a half. Continuous operation is not necessary and the authorized and proper method of lubricating is to stop the machine completely before approaching it. An "L"-shaped fence of expanded metal of suitable dimensions and rigidity was provided, the long arm of the "L" running parallel to the belt and preventing accidental contact by passers by. The short arm was in the form of a door, secured to its frame by two bolts of such a type that, if properly screwed in, they could be removed only by using a suitable spanner. This door protected the driven pulley and shaft and their point of junction with the body of the machine. Lubrication could be effected only by opening the door.

An employee of the company called Petro was charged with the duty of lubrication during the day shifts. He was provided with the necessary spanner and could operate the pulley control and brake. He was under orders never to open the door without first stopping the machine and, presumably, never to restart the machine without first shutting and securing the door. We think the latter was implied, though not stated in terms. The process of manipulation of the door and lubrication took about ten minutes at most on each occasion. No other employees had a spanner of this kind. Petro handed his spanner to the appropriate night-shift employee whose duties were similar, at the end of the day-shift. Petro had no other duties.

On 25th June, 1954, Petro opened the door without stopping the machine. His clothing caught in the belt: he was severely injured and died of his injuries next day. There is no evidence why he did this. There is no reason to suppose that his motive was anything worse than to make his work easier and more quickly completed than it would have been if he had strictly obeyed the orders given for his protection. On the other hand, the cause may have been mere forgetfulness.

His employers were prosecuted on two counts, the second being failure to fence securely, contrary to sections 22 (1), 72 (1) and 73, and the first, causing the death of Petro by reason of such failure, contrary to section 75. These counts were properly treated as alternative. The learned magistrate convicted on the first and sentenced the company to a fine of Sh. 1,000. He acquitted on the second. A more proper course would have been to make no finding on it. See *Alfred James* Seymour, 38 C. A. R. 68 (1954) 1 A. E. R. 1006, and Wachira v. R. 21 E. A. C. A. 398.

On appeal the High Court was of opinion that the company itself had securely fenced the machinery, that Petro had rendered the fencing insecure and thereby contravened the Ordinance, that the company had, by reason of Petro's contravention, been vicariously guilty under section 72 (1) of an offence against section 22 and could have been convicted, and sentenced under section 73; but that no conviction could lie under section 75, since that section required a contravention of the Ordinance by the accused himself, and in this case, although the company had been guilty of an offence, it had not itself committed any contravention of the Ordinance, and there was nothing in the Ordinance imputing responsibility to an occupier for the contravention of an employee. On this basis the High Court held that no offence against section 75 had been committeed by the company and quashed the conviction. The Court was also of opinion that the company ought to have been convicted under section 22, but was unable to disturb the order of acquittal of the learned magistrate.

It will be observed that the reasoning of the High Court is based on the premise that the company had not in this case failed securely to fence the machinery. This finding of fact reversed the finding of the learned magistrate. We were of opinion that the finding of the learned magistrate was correct and ought not to have been disturbed. This made it unnecessary for us to consider the

conclusions of law to which the High Court proceeded, and we express no opinion on them. We would say, in passing, that the question whether a first appellate court, which has reversed a finding of fact of the trial court, had sufficient grounds for doing so appears to us to be a question of law.

On the issue of fact whether the company had fenced securely, the learned Judge said: $-$

"It appeared to this court, however, that two factors had not received adequate consideration.

The first was that in fact the company had set up a fence which was perfectly secure unless and until somebody interfered with it. The reported decisions involving 'foreseeability' do not deal with that state of affairs, but with non-existent fencing, or with fencing which was insecure because it had existing gaps in it. In more than one case there have been *obiter* to the effect that had there been a breaking of the fence, different principles might apply—though these obiter referred, I think, to a malicious and unauthorized breaking.

The case of Burns v. Joseph Terry & Sons, Ltd., (1950) 2 All E. R. 987, makes it clear that the doctrine of 'foreseeability' (upon which the magistrate's judgment largely turned)-

- (a) contemplates a state of fencing which is such (by reason of absence $(a)$ ) of fencing, or of gaps in it) that an occupier should foresee that that state of things is dangerous if the workman fails to take care; and further means - (b) that the occupier having foreseen that much, should also foresee the likelihood (where it exists) that an indolent or irresponsible workman is likely to avail himself of the insecure fencing to do something foolish and so come to harm. (Burns v. Joseph Terry & Sons Ltd., (1950) 2 All E. R. 987.)

The doctrine of 'foreseeability' does not require that an occupier should foresee that likelihood of a workman breaking a secure fence without authority, or breaking it with authority but in an authorized and imprudent manner. In the present case it is clear on the findings in the court below (for which there was ample evidence) that so long as Petro did nothing to the fence, the machinery was securely fenced, for Petro as for everybody else. It was his own breaking of the fence, by opening the door, which made a perfectly secure fence insecure. His breaking the fence was indeed on the appellant company's instructions; his doing so while the machinery was in motion was contrary to the company's instructions. But the breaking of the fence was the act of Petro, who could have stopped the machinery as he was instructed to do, and could then have opened the door with complete safety to himself. In my view, the doctrine of foreseeability has no relevance to the facts in this case."

It is with this passage that we find ourselves unable to agree, and we are inclined to think that the difficulty arises primarily from the learned Judge's use of the phrase "breaking the fence". This phrase may bear various quite different meanings. It may refer to a wilful and unauthorized breaking, for purposes, say, of suicide or sabotage. An occupier is certainly not expected to foresee that. It may refer to an accidental breaking. The occupier must foresee this, if it is due to fragility of the fence and normal strains put on it; but probably not, if the fence is of normal strength and has been subjected to some quite abnormal and unexpected strain. None of those factors arises here. The position was that the fence contained a gap which was intended to be regularly used and was closed

only in the interval between the times of use. The word "breaking" may in such a case be misleading. The duty of the occupier was to ensure that the gap could not be left open in such a manner as to produce a general insecurity, even forshort periods. In our view the company failed to perform that duty. It was well aware that insecurity, and indeed actual danger, would arise if the door was opened when the machine was in motion. This is proved by the instructions given to Petro. The chief engineer of the company was asked if, as an engineer. he could invent a device which would stop the machine when the door was opened. He said "it might be possible but it would require a great deal of thinking". That may be so, but, with respect, all that was required was a deviceensuring that the door could not be opened if the machine was in motion, a much simpler matter. One cannot be specific without seeing the layout, but a layman would imagine that a door bolt could without difficulty be linked to the pulley control lever so as to hold the door closed whenever the lever was in the driving position. An engineer could, no doubt, suggest on the spot a dozen other. and probably better, methods. So long as the machinery was stationary, therewas no possible, or at least no foreseeable, danger from it, and in those circumstances a fence with a gap in it was, for the time being, a secure fence; but when the machinery was in motion it was continuously and obviously dangerous, and a fence with an open gap in it was not secure. It is true that if Petro had obeyed. his instructions, no accident could have occurred, but the duty to fence securely cannot be performed merely by giving instructions which, if followed, will ensure safety. The occupier must foresee, not only that an employee may do his work. carelessly or forgetfully, and may in consequence accidentally omit to take the precautions ordered, but also that he may deliberately, and in breach of orders, disregard those precautions in order to save himself trouble and reduce the amount of his work. Petro's work seems to have been light enough in any case. but if he saw any means of doing even less, it was not merely a foreseeable possibility, but actually to be expected, that he would adopt those means, regardless of any risk to which they exposed him. The test of "foreseeability" has twoapplications under the Ordinance. In cases falling under section 23 it must be applied in determining whether a particular piece of machinery is "dangerous". That does not apply in cases under section 22, no doubt because it is to be assumed that all transmission machinery is dangerous—a sound general rule. But accepting the view of Hilbery, J., at first instance and of the majority of the-Court of Appeal in Burns v. Joseph Terry & Sons Ltd. (1951) 1 K. B. 454, (recently followed in Jackson v. National Coal Board, (1955) 1 W. L. R. 132), the test of "foreseeability" is also the proper test in deciding whether fencing is secure. Indeed, with all deference to the dissenting opinion of Denning, L. J., it is difficult to see what other standard could be applied. If absolute security is required against all treatment, proper or improper, of the fence, the suicide or saboteur must be provided for. If only reasonable security is required, the test must be what sort of treatment the fence must be expected to receive, i.e. "foreseeability". One can imagine that two similar machines might be so located that the fence of one could be expected to suffer frequent damage by passing loading trolleys, while the fence of the other could not, apart from malicious. damage, suffer any such heavy strain. If the two fences were identical, it might well be held that the former was not secure, but the latter was.

In Smith v. Chesterfield Co-operative Society Ltd. (1953) 1 A. E. R. 447, therewas a guard over a roller in a machine for making pastry. It contained a gapthree inches wide through which the operator, in disobedience to orders, put her hand in order to feed small detached pieces of dough into the rollers. It was her duty to stop the machine, collect those pieces, and roll them out by hand. Sheomitted to do this, merely in order to save herself trouble and extra work, and. her hand was caught. Jenkins, L. J., said, at p. 449:-

"Whether any particular machine is 'securely fenced' in accordance with the statutory duty must be judged with reference to the facts of each particular case. That is a truism, but the question must also be judged by reference to the right principle of law, and, to my mind, the learned Judge was in error when he said:

'But on those facts how can she succeed in an action under the Factories Acts? I do not think that she can. The essence of the provisions of section $14(1)$ of the Factories Act, 1937, from what 1 know of the cases and from what has been cited to me, seems to be that there should be a fencing against accident and not a fencing against deliberation,'

The learned Judge, having laid down that principle for his guidance, came to the conclusion that the plaintiff's deliberate act was tantamount to a breaking of the fence and involved no breach of statutory duty on the part of the defendants, inasmuch as the fence provided was a sufficient protection against anything except a deliberate act amounting to a breaking of the fence.

To my mind, this statement of the principle of law by which the learned Judge was guided puts far too narrowly the duty of an employer under section 14 (1). It is plain from the passage from the opinion of Lord Normand in Lyon v. Don Brothers, Buist & Co. Ltd. (1944 S. C. (J.) 5), cited in Burns v. Joseph Terry & Sons Ltd. in the judgment of Somervell, L. J. ((1950) 2 All E. R. 990), that the security to be provided by means of the fencing extends not merely to protection against accidental occurrences, but also to protection against 'negligent, ill-advised or indolent conduct'; and it extends further, in my judgment, to conduct such as that of the plaintiff in the present case."

That decision was referred to in the judgment of the learned magistrate, but not in that of the High Court. This case seems to be closely parallel. It has the same elements of a gap in a fence otherwise secure, and of an improper use of the gap, probably due to laziness, and in disobedience of express orders.

In Charles v. S. Smith & Sons (England) Ltd., (1954) 1 A. E. R. 499, dangerous parts of a machine were enclosed in a metal box, the lid of which had to be opened periodically, after stopping the machine, for inspection or adjustment of the parts. The machine was stopped by putting the starting handle in the neutral position and, while the operator was making adjustments, his leg accidentally touched the starting handle, thus starting the machine and causing injury to him. It was held that the box did not amount to secure fencing, for when the lid was raised there was no protection, and the operator was not guilty of "misuse" under section 119. We think these two decisions really conclude the present appeal.

We think it may be desirable to mention in addition one other decision, in order to show how far the obligation to fence securely extends. It is that of Frost v. John Summers Ltd., (1954) 2 W. L. R. 795. It was held in the case of a "dangerous" grindstone that "the duty to fence securely was absolute, and the fact that compliance...might render the machine unusable did not absolve the dependants from their duty". It was pointed out that in such a case special regulations might be made to make user possible. See also section 24 of the Ordinance. This decision of the majority of the Court of Appeal has recently been affirmed by the House of Lords, sub nomine John Summers & Sons Ltd. v. Frost, The Times, 25th March, 1955.

We allowed the appeal, set aside the order of the High Court, and restored the conviction entered by the learned magistrate and the sentence imposed by him.