Galashiels Gas Co Ltd v O’Donnell

Sections 22(1) and 152(1) of the Factories Act 1937 impose an absolute and continuous duty to keep a hoist or lift in an efficient state, in efficient working order and in good repair. The statutory definition prescribes the result to be achieved, rather than the steps which an employer must take.

A failure of the mechanism which causes injury establishes breach even where the employer exercised every practicable precaution and neither anticipated nor could explain the failure. The claimant need not identify the defect or specify a preventative step. Liability nevertheless requires proof that the breach caused the injury; the absolute duty does not make the employer an insurer against injuries arising from other causes.

A workman was killed when the brake of his employer’s lift failed to operate. The Lord Ordinary found that the employer had taken every practical step to keep the mechanism safe. The failure could neither have been anticipated nor explained. He nevertheless held that the lift had not been maintained in efficient working order as required by sections 22(1) and 152(1) of the Factories Act 1937.

The majority of the Second Division affirmed that decision, Lord Mackay dissenting. The employer appealed to the House of Lords. The central questions were whether the statutory duty was absolute and continuous, and whether breach could be established without proof of the precise defect or of a preventative step which the employer had omitted.

1. The appeal was dismissed unanimously. Lord Morton of Henryton, Lord MacDermott and Lord Reid each held that section 22(1), read with section 152(1) of the Factories Act 1937, imposed an absolute and continuous obligation to have the lift in efficient working order. Lord Normand agreed completely and emphasised that the decision involved neither a new principle nor an extension of an existing principle.

2. Per Lord MacDermott, the statutory definition of “maintained” conclusively denoted the continuance of a state of working efficiency. It described the result which had to be achieved, rather than the means of achieving it. The word “properly” neither weakened that requirement nor converted it into an obligation merely to service the machinery with reasonable care.

3. Per Lord Morton of Henryton and Lord Reid, the duty was not discharged by taking every practicable or reasonable precaution. The protective purpose of the provisions relieved an injured workman of the often difficult burden of identifying the precise mechanical defect or proving a particular omitted preventative step. It was enough to establish that the mechanism failed to work efficiently and that this failure caused the accident.

4. Per Lord Reid, an intermediate duty which exceeded even the highest standard of care, but depended on the claimant discovering the precise defect, would be difficult to understand and would serve no practical statutory purpose. The “particular thing” required by the Act was maintenance of the lift in efficient working order. How that result was achieved, or why it was not achieved, was the employer’s concern.

5. The absolute duty did not make the employer an insurer against every injury. Lord Morton of Henryton and Lord Reid held that a claimant must still prove both breach and causation. Here, the brake was not in efficient working order at the material time, its failure caused the death, and contributory negligence had been negatived. The unexplained and unforeseeable character of the failure therefore afforded no defence.

1. House of Lords: Dismissed the employer’s appeal unanimously and affirmed the interlocutors of the Scottish courts.
2. Second Division of the Court of Session: By a majority, Lord Mackay dissenting, affirmed the Lord Ordinary’s decision that the statutory duty was absolute and had been breached.
3. Lord Ordinary: Held that the employer was liable notwithstanding its having taken every practical step to keep the lift safe and the inability to anticipate or explain the brake failure. The judgment is referred to as 1948 S.C., at p. 195.