Mackey v James Henry Monks (Preston) Ltd

• Jurisdiction: Ireland
• Judgment Date: 30 November 1915
• Date: 21 February 1916
• Court: Court of Appeal (Ireland)

John Mackey

and

James Henry Monks (Preston), Limited (1).

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1916.

Ship — Factory — Factory and Workshop Act, 1901 (1 Edw. 7, c. 22), ss. 79, 84, 104 — Regulations of Secretary of State imposing Obligations of Owner of Ship — Ultra Vires — Power of Court to question Validity of Regulations — Fatal Accident — Negligence.

Section 79 of the Factory and Workshop Act, 1901, provides that where the Secretary of State is satisfied that any manufacture, machinery, plant, process, or description of manual labour used in factories is dangerous to life or limb, he may certify it to be dangerous, and thereupon may, 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. By sect. 84 the regulations are to be laid before both Houses of Parliament, and if either House within forty days resolve that all or any of the regulations ought to be annulled, the regulations shall, after the date of the resolution, be of no effect, without prejudice to the validity of anything done in the meantime thereunder. Sect. 104, sub-s. 1, enacts that the provisions of the Act with respect to (inter alia) dangerous trades “shall have effect as if every dock, wharf, quay, and warehouse, and all machinery or plant used in the process of loading or unloading or coaling any ship in any dock, harbour, or canal were included in the word ‘factory,’ and the purpose for which the machinery or plant is used were a manufacturing process; and as if the person who by himself, his agents or workmen uses any such machinery or plant for the before-mentioned purpose were the occupiers of the premises; and for the purpose of the enforcement of these provisions the person having the actual use or occupation of a dock, wharf, quay, or warehouse or of any premises within the same or forming part thereof, and the person so using such machinery or plant shall be deemed to be the occupier of a factory.” Sub-s. 2 enacts that for the purposes of the section the expression “plant” includes any gangway or ladder used by any person to load, unload, or coal a ship.

The Secretary of State, purporting to act under the powers conferred on him by the statute, had certified the processes of loading and unloading any ship in any dock, harbour, or canal to be dangerous, and had in the year 1904 made regulations which provided that it should be the duty of the owner, master, or officer in charge of a ship to comply with Part II of the regulations.

One of the Regulations in Part II provided that if a ship was lying at a wharf or quay for the purpose of loading or unloading, there should be means of access for the use of persons employed at such times as they have to pass from the ship to the shore, or from the shore to the ship, as follows:—Where a gangway is reasonably practicable, a gangway not less than twenty-two inches wide, properly secured and fenced.

The defendants were the owners of a ship lying in a river and discharging a cargo at a quay. The plaintiff brought an action against the defendants under the Fatal Accidents Act, 1846, claiming damages arising from the negligence and breach of statutory duty of the defendants in not providing proper means of access to the defendants' ship, whereby the plaintiff's son was killed. The deceased had been hired by a stevedore employed by the consignees of the cargo to unload the ship, and was drowned in the course of the unloading. Access to the ship from the quay was by means of a ladder, admittedly in a dangerous position when the accident occurred. The jury found that it was reasonably practicable to employ a gangway as a means of access from the shore to the ship; that the cause of the death of the deceased was the non-user of a gangway in accordance with the statutory requirements; that the direct cause of the occurrence was the neglect of the defendants to provide a reasonably secure and safe means of access to the ship; and they assessed damages for the loss sustained by the plaintiff.

Held, by the Court of Appeal, affirming the decision of the King's Bench Division (Palles C.B. and Gibson J.; Cherry L.C.J. dissenting), that the regulation in question imposing obligations on the owner of a ship was ultra vires and void, and that the defendants were entitled to judgment.

Held, also, that it was competent for the Court to question the validity of the regulations.

Institute of Patent Agents v. Lockwood, [1894] A. C. 347, distinguished.

Motions by the plaintiff for judgment, and by the defendants for judgment or a new trial.

The action was brought by the plaintiff under the Fatal Accidents Act, 1846. The statement of claim set out as follows: —

The plaintiff as parent and sole dependant of John Mackey, deceased, brings this action on his own behalf as having suffered damage from the negligence and breach of statutory duty of the defendant company, its agents and servants, in not providing proper means of access to the defendants' steamship “Aletta,” whereby the said John Mackey was killed at Waterford on the 27th March, 1914.

Particulars of the negligence and breach of statutory duty are as follows:—

1. On the 27th day of March, 1914, the deceased, John Mackey, was employed in unloading coal from the defendants' steamship “Aletta,” at the harbour of Waterford.

2. In pursuance of the Factory and Workshop Act, 1901, and of the regulations made thereunder, a gangway of certain specified dimensions ought to have been provided by the defendants as the means of access of persons employed in unloading the said ship; such a gangway would have been reasonably practicable under the circumstances. In further pursuance of the said regulations the means of access so provided ought to have been efficiently lighted, as the process of unloading the ship was being carried on between one hour after sunset and one hour before sunrise.

3. On the night of the 27th March, 1914, the only means of access from the defendants' steamship “Aletta” to the wharf was a narrow, frail ladder, unfenced, and not secured or made fast in any way either to the ship or to the wharf. Furthermore, this ladder was not lighted in any way.

4. The deceased, John Mackey, when attempting to pass from the wharf to the ship about 11 o'clock on the said night, in consequence of the negligence and breach of statutory duty of the defendants in not providing proper means of access, and of the defective lighting of the means of access provided, fell off the said ladder into the sea, and was drowned.

Particulars pursuant to the statute are as follows:—Name of the person on whose behalf the action is brought: the plaintiff. The nature of the claim in respect of which damages are sought: The said John Mackey, deceased, was a coalporter in the employment of Messrs. McCullagh, Limited, and was earning £1 5s. a week, of which he gave about 10s. a week to the plaintiff, and by his death the plaintiff has lost his main support and means of living.

The plaintiff claims £1000.

The defendants in their defence denied that a gangway as alleged in paragraph 2 of the statement of claim ought to have been provided by them, or that they were guilty of any statutory breach of duty in relation thereto, and denied that such a gangway was reasonably practicable under the circumstances. They denied that they were guilty of any negligence or breach of duty as alleged in paragraph 4, or at all. They traversed the other allegations in the statement of claim, and also pleaded contributory negligence on the part of the deceased. The defence further stated that the defendants would object that in so far as the plaintiff's claim was based upon an alleged breach of statutory duty, it disclosed no cause of action against the defendants, inasmuch as the breaches of duty complained of were the subject-matter of penalties provided by the Factory and Workshop Act, 1901, and that such penalties excluded any other claim.

The plaintiff in his reply pleaded that if there was any contributory negligence on the part of the deceased (which was denied) it could have been avoided by the exercise of ordinary care, and by the performance of their statutory duty by the defendants.

The action was tried before Madden J. and a special jury of the County of the City of Waterford on the 4th and 5th March, 1915. The following matters were proved or admitted:—

On the 27th March, 1914, the defendants' vessel the “Aletta,” a steamship of 336 tons gross registered tonnage, was lying in the river at Waterford, and being discharged of a cargo of coal at a wharf known as M'Cullagh's wharf. Messrs. McCullagh were the consignees of the cargo. The deceased was not employed by the defendants, but was one of a gang of dock labourers hired by a stevedore named Keogh, who was employed by Messrs. McCullagh, the consignees, to discharge the cargo. The vessel was being unloaded at both sides; on the side of the quay by cranes on the wharf, on the other side into lighters. The deceased was employed on the quay unloading on to the wharf, and the men of this gang went on board and ashore by means of a ladder, one end of which rested on the vessel, and the other on the wharf; neither end of the ladder was fastened. At low tide, the vessel being below the wharf, the ladder was in an upright position in relation to the vessel's deck, and was a perfectly safe means of access; but at high tide the ladder assumed a horizontal position, and the men had to cross it on hands and knees—admittedly a dangerous proceeding. There was a gangway on board the vessel, but this was not used till after the accident.

About 11 o'clock at night on the 27th March, the men of the wharf gang were returning to work after going on shore for refreshment. The ladder was then in a horizontal...