Mackey v James Henry Monks (Preston) Ltd

• Jurisdiction: Ireland
• Judgment Date: 11 December 1917
• Date: 11 December 1917
• Court: House of Lords (Ireland)

[HOUSE OF LORDS.] MACKEY APPELLANT; AND JAMES HENRY MONKS (PRESTON), LIMITED RESPONDENTS. 1917 Oct. 29. LORD FINLAY L.C., LORD ATKINSON, LORD PARKER OF WADDINGTON, LORD PARMOOR, and LORD WRENBURY.

Ship - Factory - Dangerous Process - Loading or unloading Ship in Dock - Means of Access between Ship and Shore - Regulations of Secretary of State imposing Duties on Owner of Ship - Ultra Vires - Fatal Accident - Breach of Statutory Duty - Appeal - Competency - Maintenance - Factory and Workshop Act, 1901 (1 Edw. 7, c. 22), ss. 79, 84, 85, 104.

By s. 79 of the Factory and Workshop Act, 1901, where the Secretary of State is satisfied that any process used in factories or workshops is dangerous or injurious to health, he may certify that process to be dangerous and may thereupon, subject to the provisions of the Act, make “such regulations as appear to him to be reasonably practicable and to meet the necessity of the case,” and by s. 104 the provisions of the Act with respect to regulations for dangerous trades were applied to the processes of loading and unloading any ship in dock.

By regulations made by the Home Secretary in 1904 under s. 79, after reciting that the processes of loading and unloading any ship in dock had been certified to be dangerous, it was provided that the means of access between the ship and the shore for the use of the persons employed should (subject to certain qualifications) be a gangway of the kind therein described, and that it should be the duty of the owner, master, or officer in charge of the ship to provide the prescribed mean of access:—

Held by Lord Finlay L.C., Lord Atkinson, and Lord Parker of Waddington (Lord Parmoor and Lord Wrenbury dissenting), that the regulations, in so far as they imposed upon the owner of the ship the duty of providing a safe means of access, were not inconsistent with the provisions of the Act and were intra vires.

Where, therefore, a dock labourer, who was employed by a stevedore in unloading a ship in dock, fell off a ladder, which was the only means of access in use between the ship and the wharf, and was drowned, and his father brought an action for damages against the owner of the ship under the Fatal Accidents Acts for breach of statutory duty in not providing a safe means of access and obtained a verdict in his favour:—

Held (by the same majority), that he was entitled to judgment.

Per Lord Atkinson and Lord Parker of Waddington: A preliminary objection to the competency of the appeal based on the fact that the Crown had provided the appellant (the plaintiff) with the means of prosecuting his appeal, in order to get the question of the validity of the regulations finally settled, is untenable.

Decision of the Court of Appeal in Ireland [1916] 2 I. R. 200 reversed.

APPEAL from an order of the Court of Appeal in Ireland affirming an order of the King's Bench Division.^F1

The substantial question raised by the appeal was whether certain regulations made by the then Home Secretary, dated October 24, 1904, and purporting to have been made and issued under the powers of the Factory and Workshop Act, 1901, were ultra vires, in so far as they imposed upon the owner, master, or officer in charge of a ship lying at a wharf for the purpose of unloading a duty to provide a safe gangway, as therein described, from the ship to the shore for the use of the persons employed.

The action was brought under the Fatal Accidents Acts, 1846 and 1864, by the appellant, as the sole parent of one John Mackey, deceased, to recover damages alleged to have been sustained by him through negligence and breach of statutory duty on the part of the respondents, the owners of the steamship Aletta, which was being unloaded at a wharf in Waterford, in not, providing proper means of access between the ship and the wharf, in consequence of which the deceased was drowned at Waterford on March 27, 1914.

The facts are fully stated in the judgment of the Lord Chancellor, which sets out the regulations of the Home Secretary and the material provisions of the Factory and Workshop Act, 1901, and they are sufficiently summarized in the head-note for the purposes of the argument.

At the trial of the action before Madden J. and a special jury the jury returned a verdict for the appellant for 270l.

The learned judge refused to give judgment, leaving the parties to move for judgment as they should be advised. Both parties moved the King's Bench Division for judgment. The Court by a majority (Gibson J. and Palles C.B., Cherry L.C.J. dissenting) directed judgment to be entered for the respondents, on the ground that the regulations of the Home Secretary were ultra vires the power conferred on him by s. 79 of the Factory and Workshop Act, 1901, and this decision was unanimously affirmed by the Court of Appeal (O'Brien L.C., Ronan L.J., and Molony L.J.).

The Treasury Solicitor in Ireland made an offer to the appellant to undertake the presentation of this appeal to the House, and this undertaking was accepted by the appellant. The respondents presented a cross-appeal against the competency of the original appeal upon the ground that the appeal was not the appeal of the appellant, but was in truth the appeal of the Crown in order to obtain, in a litigation to which the Crown was not a party, a final decision upon the validity of the regulations in question, and that in the circumstances the appeal was unjust to the respondents and was maintenance and an abuse of the prerogative of the Crown.

1917. July 3, 5, 6, 9, 10. Battersby, K.C. (with him W. Gibson, K.C., and E. A. Swayne) (all of the Irish Bar), for the respondents, argued the preliminary objection to the competency of the appeal. This is not the appeal of the appellant, but of the Crown, which has no interest in the litigation. The Crown is maintaining a pauper.

[LORD FINLAY L.C. said that their Lordships were of opinion that the appeal should proceed, this point being reserved.]

A. J. Walter, K.C., and D. J. O'Brien, K.C. (with them M'Grath)(the two latter of the Irish Bar), for the appellant. The power conferred on the Secretary of State by s. 79 of the Factory and Workshop Act, 1901, to make regulations must necessarily include power to say who are the persons to obey them. Sect. 79 contains no limitation, such as was to be found in the previous Factory Acts, as regards the persons whom the regulations are to affect, and this is intentional. But it is sought by a reference to other provisions of the Act to limit the power of the Secretary of State in this respect, and it is said that the only person to be affected is the occupier of a factory, and the Courts in Ireland have so held. But an examination of the material sections of the Act shows that this is an impossible contention. Sect. 80 shows that s. 79 was not intended to be limited to occupiers; the language is “persons affected,” it being left to the Secretary of State to determine who are the persons reasonably concerned. Sect. 85 contemplates that the Secretary of State, in making regulations under s. 79, must have power to impose duties on persons who are neither occupiers nor owners of a factory. Several provisions in other parts of the Act were relied on in the Courts below by the respondents, but so far as they have any relevancy they are not inconsistent with the appellant's contention. The power of the Secretary of State is governed by the language of s. 79, and he may impose regulations upon any person so far as the necessity of the case appears to him to require. That, however, is subject to the power of Parliament to annul the regulations (s. 84). The Act contains no express provision giving the regulations statutory force, but the implied effect of s. 84 is that if the regulations are not annulled they are valid and binding. The regulation the breach of which is complained of is that “it shall be the duty of the owner, master, or officer in charge of a ship” to comply with Part II. of the regulations, which includes the regulation in regard to providing a safe means of access between the ship and the shore. The words defining the persons to be liable should be read as “owner and master or officer in charge”; all are liable. This point, however, is important only in considering the question of liability to the statutory penalties; it is sufficient for the purposes of this appeal that in a question of civil liability the duty is cast upon the master, because in a civil action the owner would be liable for the failure of his servant, the master, to fulfil a statutory duty. The fault complained of here is that in the process of unloading, which had been certified to be dangerous, no proper gangway was in use until after the accident. Under s. 104, sub-s. 2, coupled with s. 23, sub-s. 1, of the Act of 1895, which is still in force, a gangway in use by any person employed to load or unload a ship is a factory and the user of it is a manufacturing process. Once a gangway was put up between the ship and the wharf the shipowner became the owner of a factory and the stevedore the occupier. There is a liability on the stevedore as well as on the owner, but in each case the liability is in connection only with the unloading of the ship. Further, where a shipowner comes within the sphere of factory operations he must be a person capable of being bound by these regulations, and he is affected, not as owner or occupier, but by the concluding words of s. 79. The cases referred to in the Courts below — Raine v. Jobson & Co.^F2; Houlder Line v. Griffin^F3; Bartell v. W. Gray & Co.^F4; Smith v. Standard Steam Fishing Co.^F5; Merrill v. Wilson, Sons & Co.^F6; Carrington v. Bannister & Co.^F7 — have no bearing on the question at issue.

Battersby, K.C., and W. Gibson, K.C. (with them E. A. Swayne), for the respondents. As regards the preliminary objection, the respondents admit that there is no precedent for staying an action on an allegation of maintenance.

[A. J. Walter, K.C. The...