Pollard v Asco Bizerba Ltd
| Jurisdiction | Ireland |
| Judge | Batter J. |
| Judgment Date | 20 December 1968 |
| Neutral Citation | 1965 WJSC-HC 583 |
| Court | High Court |
| Docket Number | 552p./1966 |
| Date | 20 December 1968 |
1965 WJSC-HC 583
THE HIGH COURT
28th December 1968 Batter J.
This is a claim by the plaintiff for an indemnity under Section 61 of the Workmen's Compensation Act, 1934in respect of payments of Workman's Compensation made by him to an employee, Elsie Simpson, who sustained personal injuries in an accident at work on 1st September 1959. Payments of compensation at the rate of £3. 1. 0 per week commenced on 5th September 1959 and continued until 23rd February 1966.
Miss Simpson sued Mr. Pollard for negligence in respect of the accident. At the first trial of that action a direction was granted at the close of the plaintiff's case. At the re-tral ordered by the Supreme Court the Jury found that Mr. Pollard had not been negligent. An appeal was taken but was unsuccessful.
The provisions of Section 61 under which the present claim is brought in so far as they are relevant, are as follows:-
Section 61 "Where the injuries for which compensation is payable to a workman under this Act ..... was caused in circumstances ???query?????? a legal liability in some person other than the employer of such workman to pay damage in respect thereof then the following ???query??????shall have effect, that is to say:- ........
(b) if such workman has recovered compensation under this Act…… the person by whom the compensation was paid..... shall beliable to be indemnified by the person so liable to pay Damage as aforesaid and all questions as to the right to and the amount of such indermnity shall in default of agreement, be settled by action".
This section reproduces, with modifications which are not material to this case, the provisions of Section 6 of the Workmen's Compensation Act, 1906.
In order to sustain a claim under this section a plaintiff must first establish that the injured workman would have had a good cause of action against the defendant. As the accident in this case occurred before the passing of the Civil Liability Act it is necessary to decide in relation to the circumstances of the accident, first whether the present defendants were negligent and secondly whether Miss Simpson was herself guilty of contributory negligence. Because of the submission by the defendants which I shall consider later, it is also necessary to decide whether the plaintiffs, Mr. Pollard was guilty of negligence as Miss Simpson's employer. Payment and the amount of compensation paid being now admitted, these are the issues of fact to be decided in the case.
The accident happened when Miss Simpson was working at an electrically operated Asco bacon slicing machine manufactured by the defendants. This machine was of the normal type with a circular blade rotating in the vertical plans and in the horizontal plane a carriage for the bacon which moved with a reciprocating motion across the face of the blade. The electric motor was turned on and movement of the blade and carriage was controlled by a rotary switch similar to those commonly used in electric cookers. The actual switch was mounted in the base of the machine and was controlled by means of a lever some 15 inches long. This lever passed through a slot running from the centre or right hand to a left hand position relative to the operator. Having passed through this slot the lever terminated in a handle which rotated in either direction turning the switch on and off. The handle was spring loaded so as to keep it in contact with the face of the slot along its length. The motor was ???query?????? and stopped by rotating the hundle in either the right hand or the left hand position. When started in the right hand position only the blade of the machine rotated. If the lever were then moved to the left the clutch controlling the carriage was engaged and the carriage came into operation. On the left hand corner of the carriage nearest to the carriage nearest to the operator there was a short upright.
On the day of the accident the machine had been stopped with the handle in the left hand position. Miss Simpson came to use the machine and was placing a piece of bacon which she intended to slice on the carriage. It was a small piece and in order to position it she had to hold it by placing the palm of her left hand against the face to be cut while the clamp with her right hand. While she was in this position the machine started suddenly. Her left hand was caught by the upright and drawn on to the blade as a result of which she lost all four fingers of the hand.
I am satisfied on the evidence that the machine started because immediately before the accident the switch was in a trigger position intermediate between off and on and that when the handle was inadvertently touched by some portion of Miss Simpson's body while she was leaning over the machine, it snapped into the on position.
The switch itself was not manufactured by the Defendants but was supplied to them by a reputable firm of specialist manufactures. Its activating mechanism was a star shaped plate with four points or ridges and four hollows or valleys. As designed internal rollers of the switch which were held against this plate by tension springs should always snap into one of the hollows giving two on and two of positions in a complete rotation through 360° Mr. Eoin Kenny, the plaintiff's engineer made enquiries from the makers of the switch when he was investigating the accident. The defendants very properly made no objection to his giving the result of those enquiries. From this evidence it appears that the switch was designed to give a very positive make/break action which made it difficult to get a neutral position even with slow operation. The makers tested all springs used and if required for any particular type of assembly the springs could be varied. However, they would only guarantee the switch if used as recommended by them and if any linkage were used between the actual switch and the operating handle it would have to be examined to see if it would interface with the snap action. As I have indicated a linkage in the form of the control lever was used in this case and the defendants did not suggest that the makers of the switch were consulted as to this from of operation or that the switch was in any way modified, for example by fixing strongly internal springs.
Some time after the accident Mr. Pollard experimented with the switch and found that it was possible, by careful manipulation, to position it in a trigger position so that if touched it snapped into either the off or the on position. He consulted Mr. Kenny who first examined the machine in December 1960 over a year after the accident. Mr. Kenny them found that when the lever was in the left hand position and when the control handle was turned in an anti-clockwise direction the switch could be left in an intermediate position and that when pressed against with his body from the right the machine started. He had carefully positioned the switch to achieve this result but stated that in his opinion, at the date of his examination it would be quite possible to do this inadvertently. He stated that in his view this was because of the friction of the control handle against the face of the slot in which the lever moved and that this effect could be aggravated by some small object such as a chip of wood, a piece of paper or a small piece of bacon rind being caught between the base place of the handle and the face of the slot.
The defendants issued with the machine a card headed...
To continue reading
Request your trial