metal fatigue or some manufacturing defect, which would not have been revealed on even the most ‘perfectly rigorous’ inspection. The claimant contended that, notwithstanding this finding of fact, an absolute obligation was imposed upon the Post Office by the Regulations. The Post Office contended that the contemplation of the EC Directives, which the Regulations were intended to implement, was for something less than an absolute duty. The Court of Appeal held that, in framing the regulation, the parliamentary draftsman had adopted a form of words which had long been held to impose an absolute obligation. It followed that this regulation imposed an absolute obligation. Although the Directives were to be taken as laying down minimum standards, there was nothing precluding a Member State from imposing more stringent requirements. Accordingly, the employers were liable for breach of the regulation. CARROLL v ANDREW BARCLAY & SONS LTD [1948] AC 477 In this appeal from the Second Division of the Scottish Court of Session, the House of Lords held that the fencing of transmission machinery, as then required under s 13(1) of the Factories Act 1937, imposed on occupiers of factories a duty to erect a barricade to prevent any employees from making contact with the machinery, but did not oblige them to prevent broken machinery from flying out and injuring them. The extract is from the judgment of Lord Porter, beginning at p 483:

doi:10.4324/9781843140504-113

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metal fatigue or some manufacturing defect, which would not have been revealed on even the most ‘perfectly rigorous’ inspection. The claimant contended that, notwithstanding this finding of fact, an absolute obligation was imposed upon the Post Office by the Regulations. The Post Office contended that the contemplation of the EC Directives, which the Regulations were intended to implement, was for something less than an absolute duty. The Court of Appeal held that, in framing the regulation, the parliamentary draftsman had adopted a form of words which had long been held to impose an absolute obligation. It followed that this regulation imposed an absolute obligation. Although the Directives were to be taken as laying down minimum standards, there was nothing precluding a Member State from imposing more stringent requirements. Accordingly, the employers were liable for breach of the regulation. CARROLL v ANDREW BARCLAY & SONS LTD [1948] AC 477 In this appeal from the Second Division of the Scottish Court of Session, the House of Lords held that the fencing of transmission machinery, as then required under s 13(1) of the Factories Act 1937, imposed on occupiers of factories a duty to erect a barricade to prevent any employees from making contact with the machinery, but did not oblige them to prevent broken machinery from flying out and injuring them. The extract is from the judgment of Lord Porter, beginning at p 483:

Chapter

metal fatigue or some manufacturing defect, which would not have been revealed on even the most ‘perfectly rigorous’ inspection. The claimant contended that, notwithstanding this finding of fact, an absolute obligation was imposed upon the Post Office by the Regulations. The Post Office contended that the contemplation of the EC Directives, which the Regulations were intended to implement, was for something less than an absolute duty. The Court of Appeal held that, in framing the regulation, the parliamentary draftsman had adopted a form of words which had long been held to impose an absolute obligation. It followed that this regulation imposed an absolute obligation. Although the Directives were to be taken as laying down minimum standards, there was nothing precluding a Member State from imposing more stringent requirements. Accordingly, the employers were liable for breach of the regulation. CARROLL v ANDREW BARCLAY & SONS LTD [1948] AC 477 In this appeal from the Second Division of the Scottish Court of Session, the House of Lords held that the fencing of transmission machinery, as then required under s 13(1) of the Factories Act 1937, imposed on occupiers of factories a duty to erect a barricade to prevent any employees from making contact with the machinery, but did not oblige them to prevent broken machinery from flying out and injuring them. The extract is from the judgment of Lord Porter, beginning at p 483:

ABSTRACT

My Lords, the correct solution of this problem must depend on the true construction of the terms of the Act. The provisions which deal with fencing are to be found in ss 12-16 inclusive and it is, I think, noteworthy that in the case of the first of these sections which is concerned with prime movers there is an absolute obligation to fence, without any qualification whatever except for electric generators and so forth which, by subsection 3, are subject to a less stringent rule. Apart from such generators, prime movers, which are defined in s 52 and do not include the belt in question, must be securely fenced whether they are safe or not and whatever their position or construction. If they are unfenced the occupiers of the factory are guilty of an offence. In the case of electric generators, however, and also in the case of transmission machinery (s 13) and dangerous machinery (s 14), fencing is not required if the position or construction of the machinery renders it as safe to everyone employed or working on the premises as it would be if securely fenced. The only difference between transmission and dangerous machinery is that, subject to the qualification mentioned above, the former must be fenced whether it is dangerous or not, whereas the latter must be proved to be dangerous before the duty to fence comes into existence. In either case, fencing is obligatory unless the exceptions apply. But it still remains to be determined against what dangers the fencing is to be a safeguard and what circumstances the exceptions embrace. For my own part, I find it difficult to envisage any set of circumstances in which unfenced machinery would be safe, owing to its position or indeed construction if the risk of breakage is to be taken into

employees might not be injured or that the machinery would be as safe as if it was securely fenced. And equally if breakage is to be guarded against, the distinction between machinery which is dangerous and that which is not seems to disappear. All machinery is potentially dangerous because it may break, but the Act is not concerned with danger in that sense, it is danger in working against which it is framed to give security. Throughout the relevant sections I can find no hint that the danger of machinery breaking has been taken into account. The words ‘of such construction’ in s 12 subsection 3, s 13 subsection 1 and s 14 subsection 1 deal with types of construction, not with the strength of the machine; ss 22-26 provide for lifts, floors and methods of ingress and egress and have no bearing on the provision of sound machinery. Unless the matter be dealt with by regulations made under s 60, the common law obligation to use due care seems alone to be the sanction against weak or ill constructed machinery. So far indeed from suggesting that the breakage of machinery is under consideration in ss 12-16, indications to the contrary are, I think, to be found. Certainly, the provisions of s 13 subsections 3 and 4 show no tendency to keep in mind the breaking of driving belts and s 14 not only speaks of a device ‘which automatically prevents the operator from coming into contact with that part’ (ie, a dangerous part) in the proviso to subsection 1, but, in subsection 2(a) refers to preventing ‘the exposure of a dangerous part of machinery whilst in motion’, and I cannot read those phrases as intending anything more than a device to keep the workman from the dangerous part of the machine. Finally, subsection 3 talks of ‘articles which are dangerous while in motion in the machine’. From all these expressions I conclude that it is risk arising from the motion of the machine which is being guarded against, whether the part concerned is the transmission or dangerous in working. Even s 15(b) contains the same suggestion when it permits certain work to be done while the machine is in motion if to stop it would seriously interfere with the carrying on of the process.