AC. AND PRIVY COUNCIL. order or judgment for possession takes effect. Unless this require- ment is complied with no court is entitled to make an order, how- ever much it is persuaded that it is reasonable to do so, and though, as in this case, the judge who tried the case finds it reason- able, there was, in their Lordships’ view, no evidence of suitable alternative accommodation. In the present case, therefore, as they have indicated, their Lordships are of opinion that the existence of suitable alternative accommodation has not been established. They will accordingly humbly advise Her Majesty that the appeal should be dismissed. The appellants must pay the costs of the proceedings before their Lordship’s Board. Solicitors: Kenneth Brown, Baker, Baker; Coward, Chance é Co. [House oF torps.] LATIMER . . . : é . . APPELLANT; AND A. E. Cc. LD, : 7 7 e : . REsPponvENT. Factory—Floor—Maintenance—Flooding of factory floors by exceptional rainfall—Gangway slippery with mixture of water and escaped oit Workman allowed to work there —Injury —No negligence —No breach of duty to maintain gangway—Meaning of “ maintain ”— Factories Act, 1937 (1 Edw. 8 & 1 Geo. 6, c. 67), $8. 25 (1), 26. During an unusually heavy rainstorm tho floors of a large factory were flooded and an oily cooling mixture, normally con- tained in a channel in tho floor, along which it was pumped to machinery, rose and mixed with the flood waters, so that, when they subsided the floor became slippery. So far as supplies permitted, sawdust was spread on the floor, but some areas were left “untreated, A workman, working in a gangway which had not been treated with sawdust, was attempting to load a heavy barrel on to a trolley when he slipped and injured his ankle, He brought an action against his employers, claiming damages in respect of his injuries :— Held, (1) that the employers were not negligent, as they had done all a reasonable employer could be expected to do for the safety of their servants, having regard to the degree of risk; and (2) that there was no breach of the statutory duty under section 25 * Present: Lorp Porrer, Lorn Oaxsey, Lorn Rem, Lorp Tucker and.Lorp Asquirn or Brsiopst6ne. 648 a. 1958 Sincz ve ‘MALAYAN : ‘THEATRES Lb. L. (B)* 1953 Apr. 27, 28, 29, 30; June 25.HL. @) 1953 Larner, °. HOUSE OF LORDS [1953] of the Factories Act, 1937, to seo that the floors were “‘of sound “construction and properly maintained,” since the floor was structurally sound and could not be said not to be properly main- tained becauso it was in a transient and exceptional condition of being wet and oily; whether such temporary inefficiency constituted a breach of duty was a question of degree. Decision of the Court of Appeal [1952] 2 Q.B. 701; [1952] 1 T.L.R, 1349 ; [1952] 1 All E.R. 1302 affirmed. AppzaL from the Court of Appeal (Singleton, Denning and Hodson L.JJ.). This was an appeal by Albert Richard Latimer (the plaintiff in the action) from an order of the Court of Appeal dated May 1, 1952, whereby a judgment given on February 8, 1952, by Pilcher J. in his favour, for £550 damages with costs, was set aside and judgment entered for the respondent company, A. E. C. Ld. (the defendants), with the costs of the action and of the appeal The appellant recovered judgment for the sum of £550 as damages for injuries which he alleged had been the result of a failure on the part of the respondents, in breach of their statutory duty, to maintain one of the gangways in their works in an efficient state. He relied also on an allegation of common law negligence. Pilcher J. rejected his claim based on a breach of statutory duty, but held the respondents guilty of common law negligence. The Court of Appeal agreed with the judgment of the judge on the claim for breach of statutory duty, but were of opinion that there was no common law negligence on the part of the respondents. The relevant facts emerging from the evidence were undisputed and were stated by Lord Porter as follows: The appellant was a horizontal milling machine operator employed by the respondents in their works at Southall. At those works they employed some 4,000 persons and the works themselves extended over an area of about 15 acres. On August 31, 1950, the appellant was working on the night shift in the general machine room and came on duty at about 7.45 p.m. His work involved collecting barrels containing bundles of hand brake levers and weighing about 2 ewt. They had to be conveyed by him on a trolley along a passage or gangway for a distance of about 80 yards from the place where they were stored. Between about 12 noon and 3 p.m. on that afternoon there had been an exceptionally heavy storm of rain which caused the whole of the premises to become flooded with surface water. That water became mixed with an oily liquid known as “ mystic,"’ which was normally collected inA.C. * AND PRIVY COUNCIL. channels in the floor of the building. Those channels were covered with iron lids which were not watertight. The ‘* mystic ”’ was soluble in water and was used to act as a cooling agent for the machines. When the water which had so been impregnated drained away from the fioor it left an oily film upon the surface which was slippery. After the rainfall had subsided the respondents spread sawdust on the floor so far as they had a sufficient quantity for that purpose. In spreading it and in cleaning the floor they immediately employed about 40 production service labourers and between the end of the day shift and the start.of the night shift they employed 24 volunteers. Men were also detached from the night shift for cleaning. They had in fact three tons of sawdust at hand, enough for any occurrence which they could be expected to foresee, but, owing to the unprecedented force of the storm in question and the large area which had to be covered, there was insufficient sawdust to place it on portions of the floor, including the part of the floor where the barrels were situated. ‘The principal object of spreading sawdust on the floor was to dry it, but incidentally it would also have some effect in decreasing its slipperiness. The respondents knew that the coating of the floor with the mixture of ‘“ mystic’ and water would to some extent increase its slipperiness. They also knew that the appellant in the course of his work would have to collect the barrels at the place in question, At about 8.45 p.m., in the course of his work, without realizing the danger, he went to collect a barrel with the help of a fellow workman and succeeded in getting the metal lip of a trolley under the base of the barrel in order to raise it from the floor. He then placed his right foot on the axle of the trolley and pushed with his left foot, using considerable force, but his left foot slipped on the oily surface of the floor with the result that he fell on his back and the barrel rolled off the trolley and crushed his left ankle. The appellant in evidence admitted that “‘ you always get a “* certain amount of grease about."” He also admitted that, apart from himself, no one, so far as he knew, had ever fallen down and hurt himself because of flooding in the factory. Albert Ampstead, who was employed at the factory, said in evidence that ‘‘ there is always a certain amount of grease on the floor.” He said that he had scen “ mystic” come out of the channels, owing to flooding, four or five times. George Milne, the respon- dents’ safety engineer, said that he would not have gone on the slippery floor to pull a thing about or put on a strain because it would be too dangerous.646 HSL. (B.) HOUSE OF LORDS (1953) Pilcher J. found that the’ respondents took every step which they could reasonably have taken to deal with the conditions prevailing when the night shift came.on duty, and’ he negatived every specific allegation of negligence pleaded. But, although ‘no questions were put to their witnesses in cross-examination suggesting that they should have closed the factory, he raised the point during the argument. No application was made for an adjournment or for amendment of the pleadings. Pilcher J., in holding the respondents negligent, said that he did not shrink from the conclusion that the respondents’ duty, if they desired to escape liability for accidents due to the slippery condition of the floor, might have been to send away all the men who were not prepared to volunteer for cleaning work. Bency Q.C. and Jukes for the appellant. Two contentions are submitted on behalf of the appellant. (1) On its true construc- tion, section 25 (1) of the Factories Act, 1987, in its application to “' floors, steps, stairs, passages and gangways ”’ in a factory is not confined to the proper repair and keeping in repair of those parts of the factory, but extends to keeping the surfaces of those parts in a safe and proper condition. ‘The case involves the con- struction of the definition of the word ‘‘ maintained ”’ in section 152 (1) of the Act. (2) On the facts as found by Pilcher J. he was justified in deciding that the respondents had caused the injuries to the appellant by neglect of their common law duty to take reasonable care for his safety while he was at work. The finding should not have been disturbed. On the true construction of section 25 (1) there was a proved breach of the section, which caused the accident. This contention is supported by Galashiels Gas Co. Ld, v. Millar, which indicates that the words ‘‘ in efficient working order ”’ must be incorporated into section 25 from the definition of “' maintained ” in section 152 (1). From that case it appears that the lift there in question had to be maintained in efficient working order as an absolute and continuing obligation. ‘The obligation so to maintain it would have involved maintaining the safety of its floor. [Lonp 'Tvoker. Would you say that a piece of orange peel on the lift floor would be a breach of the obligation?) No, it must be a question of degree. Section 25, here in question, is enacted for the protection of the workman and, as 2 [1949] A.C. -275, 986-7; 65 T.L.R. 76; [1949] 1 AU E.R. 819.A.C. AND PRIVY COUNCIL. regards-a floor, the most common peril is that of slipping. The appellant's contention is supported by the terms of sections 16, 29 (4) and (5), 30, 83 (1) and 34 (2) of the Act. An oily floor is not a floor which is properly maintained and efficient, even if it is structurally sound, as this one was. If the higher rungs of a ladder were greasy and slippery, and a man slipped on them, it would be clear that the ladder was not properly maintained or in efficient working order. Though perhaps “ working order.” not a well-chosen expression to apply to a floor, a slippery floor can certainly be said not to be “in an efficient state.” An efisient floor must be fit for the purpose for which it is intended, , for walking on, and it cannot be efficient if people slip on it: te may be that one slippery object on a floor would not render it in law inefficient or unsafe, but it would be different if there were, say, three. The courts below took too narrow a view of the operation of section 25. If the circumstances of this case come within the mischief aimed at by the section, it does not matter that it was not the fault of the employers that the ‘‘ mystic ” got on to the floor; they knew that a quantity of it was there and, indeed, took some steps to neutralize its effects. Davies v. de Havilland Aircraft Co. Ld.* is distinguishable, for the remarks of Somervell L.J. which are relevant to this case were made obiter. Alternatively, its reasoning is unsound. Cole v. Blackstone & Co. Ld.* indicates that the obligation imposed is absolute and cannot be discharged by the occupier of the factory taking all practical steps to ensure efficient state and good repair. Jukes following. The employers were in breach of their com- mon law duty in causing the workman to work on a dangerously slippery floor. The question here is whether the judge had evidence before him on which he could have found that the man should not have been allowed to work where he did. The degree of danger was such as to necessitate precautionary steps being considered. In the statement of claim it was alleged that the floor on which the workman was working was oily, slippery and greasy, and this is not disputed. It was also alleged that the method of making such a floor safe was by spreading sawdust on it, and that at the place where he was working this precaution was not in fact taken. Thus the employers failed to provide safe premises or to take normal precautions to render them safe. It was not necessary to call witnesses to say that the gangway in ? [1951] 1 K.B. 60; [1950] 2 AN > [1948] K.B, 615: 59 T.L.R. 874. E.R. 582, G47 #H.L.(B) 1953 Larimer e ALE. C. Lp.HOUSE OF LORDS [1953] which the workman was working at the time of the accident might have been roped off or that the foreman might have for- bidden him to go there. In considering the precautions’ to be taken one must weigh the degree of danger against the magnitude - of the operation necessary to guard against it. Here, besides the spreading of sawdust, there was an obvious alternative method. On the evidence the danger was such that this part of the factory should have been shut down for the night. The Court of Appeal were wrong in thinking that Pilcher J. held that the whole factory should have been closed; he merely meant that such a thing might in certain circumstances be necessary. The workman who had formerly worked here in safe conditions was now being required to work in dangerous conditions and to undergo a risk without the option of refusing. : Though contributory negligence on the workman’s part was alleged in the defence, this was not pursued. Everett Q.C. and Croom-Johnson for the respondent company. There was no breach of the common law duty owed by the employers to the workman, nor was there any breach of section 25 (1) of the Factories Act, 1937. In the court of first instance it was alleged that the drainage system was inadequate, that the floor was left oily and slippery, contrary to section 25 (1), that there was not enough sawdust, that inadequate use was made of it and that more sawdust should have been obtained. Pilcher J. negatived these points. If in the statement of claim there had been an allegation of negligence in allowing this workman to work on the night shift and failing to close the factory, it would not have been enough for the workman to show that there was a part of the floor where there were potentialities of slipping; he must have shown an act or omission which was negligent in the cireumstances. ‘The test is whether the employers discharged their duty to act reasonably in the circumstances: Winter v. Cardiff Rural District Council. On the question of statutory duty, one must consider what was the mischief aimed at by section 25 (1) of the Factories Act, 1987, One must also consider the particular results of any construction, in relation, for example, to sections 180 and 131, dealing with offences and fines. If the employers’ construction were right, coke left on a boiler house floor would be a breach of statutory duty becausé someone might tread on it and injure his 4 (1950) 114 J.P. 234; [1950] 1 AIL E.R. 819.A.C. AND PRIVY COUNCIL. foot. But that is absurd. Nor is there any substance in the distinction sought to be drawn between leaving one slippery object on a floor and leaving, say, three. ‘The subsection imposes a duty only in relation to the actual construction and the proper main- tenance of that construction of the floors, steps, stairs, passages and gangways therein mentioned. In the words of reason 2 of the printed case for the respondent company: ‘The definition ‘of the word’ ‘ maintained ’ in section 152 (1) of the Factories “ Act, 1987, means in relation to section 25 (1) of the said Act “that it is the sound construction which has to be maintained in “* an officient state, in efficient working order and in good repair.”” Section 25 (1) is concemed with the construction of the floor rather than its user, that is, with the floor as a floor. If one gets away from sound construction one cannot speak of the “ efficient “working order ’” of a floor, and then, to avoid the difficulties of the case, the expression ‘‘ of sound construction and properly _ ‘maintained’ must be limited to good repair, As a floor this floor was in an efficient state. If this subsection had been intended to deal with substances or articles superimposed on the floor if would have been easy so to express it. The mere fact that its framers had safety in mind does not help-its construction. A slippery foor may be an unusual danger of which the occupier of premises knew or ought to have known; that would be a question of degree, but it is not a breach of an absolute statutory duty. By analogy, if the contentions for the appellant were right, the amendment of the Woodworking Machinery Regulations, 1922 (S.R. & O. 1922, No. 1196) by the Woodworking (Amendment of Scope) Special Regulations, 1945 (8.R. & O. 1945, No. 1227) would have been unnecessary. Galashiels Gas Co. Ld. v. Millar is not authoritative in this case. The distinction is that there was there a finding of fact that the mechanism in question had failed, but the finding of fact here was that the floor did not fail as a floor. What did fail was the drainage system and the supply of sawdust. ‘That authority, properly appreciated, does not support the appellant’s case but is against it, There is a remarkable absence of authority on the construction of section 25 (1). Davies v. de Havilland Aircraft Co. Ld.* and Pitfield v. Railway Bzecutive? are in favour 5 [1949] A.C. 275, 1 (1942) Winchester Assizes (Un- © [1951] 1 K.B. 50. rep.). 649 BLL. (B) 1958 “Tarnons A.B. 0. Lp.650 HL. (EB) 1953 ‘Laren °. A. ELC. Lp. HOUSE OF LORDS [1953] of the respondent company. See also Carroll v. Andrew Barclay & Co, Ld.* and Mayne v. Johnstone & Cumbers Ld.? Qn the common law aspect of the case it was proper to disturb the judge's finding. He was wrong in imposing on the employers so high a standard of care at common law. ‘This was riot a case in which the Court of Appeal was at a disadvantage in not seeing the witnesses. In effect, the appellant is seeking to upply to this case the maxim tes ipsa loquitur, but it is necessary to define the scope of the duty owed. The degree of risk is only half the problem to be considered: see Winter v. Cardiff Rural District Council,” per Lord Porter. ~The duty on the employers is to act reasonably towards their employees in all the circumstances. The only breach of duty alleged against them is that they did not close the works. But that was no breach of duty. A similar problem may face a road haulage undertaking when the roads are Imown to be slippery. Then one would distinguish between the case when all the roads are like a skating rink, and it would be wise to send out no vehicles, and the case when there are only some patches of slipperiness which the drivers can avoid. To close this factory down and send the night shift home would have been a very serious step. The risk is to be balanced against the consequences of not doing so, .It is plain that neither party thought that it was too dangerous to work, a point on which an experienced machine operator is in just as good a position as a foreman to make a decision. On the question of common law duty, see Barkway v. South Wales Transport Co. Ld.™; General Cleaning Contractors Ld. v. Christmas *?; Daborn v. Bath Tramways Motor Co. Ld.**; London and North Eastern Railway Co. v. Berriman.¢ Croom-Johnson following. Assuming that in construing sec- tion 25 (1) and finding what is meant by the word “ maintained ” one must read into it the definition of maintained "’ in section 152 (1), then it is possible to select those parts of the definition which apply to the subject-matter which one is considering in any particular section. Thus the three limbs of the definition can be read selectively or distributively. Sometimes all the limbs may apply, sometimes two or one only.‘ Efficient working. 8 [1048] A.C. 477, 489, 492; 64 12 Ante, 197; [1952] 2 All E.R. T.L.R. 384; [1948] 2 All E.R. 386. 1110. ® [1947] 2 AN'E.R. 159. 19 [1946} 2 All E.R, 833, 836, 10" (1950) 114 J.P. 234, 237; [1950] __¥4 [1946] A.C. 278, 813; 62 T.L.R. 1 All E.R. 819. 170; [1946] 1 All E.R. 265. 11 [1950] 1 T.L.R. 597, 604; [1950] 1 AIL E.R. 892.AC. AND: PRIVY: COUNCIL. * order "is admittedly:inapplicablé to floois; since they are wholly and permanently passive. So is “‘cfficient state,"" since the expression connotes at least potential activity or mobility, such — as causes an effect. Thus in the case of floors the words “in “good repair” are alone applicable, and they are satisfied by adequate repair of the structure. One may contrast the effect of applying this definition to section 25 (1) and to section 81 (3) dealing with air receivers, where one has something capable of activity to which’ the words “‘ efficient state "’ can properly apply. Beney Q.C. in reply. As to the last argument presented, it assumes almost everything that underlies the appellant’s argu- ment, the distinction between construction and maintenance in the sense that maintenance goes beyond mere construction. “ Bfficient working order” would cover everything that this argument seeks to make the subsection cover, but “ efficient “state” points to something which is static. As to the common law aspect of the case, the employers knew that there had been flooding all over the factory and that very probably there were areas where the “ mystic” remained after the water had subsided. But the sawdust was used primarily, if not entirely, to mop up the wet like blotting-paper, not to obviate the danger. From the afternoon, when the situation was created; the employers did nothing to ascertain whether there were slippery areas and, if so, how bad they were. They did nothing to protect the night shift. ‘As to the Act, the problem before the court in considering whether the floor was ‘in an efficient state" is not’ solved by finding whether there was anything which was not completely perfect. The test is a broad one. “Section 25 (1) was not meant to make the employers insurers nor to cover trivial deficiencies. But the floor was not safe for the purpose of doing the operation which the injured man was doing and so it cannot have been “in “‘an efficient state.’” Efficiency means efficiency for safety in achieving the result for which a thing is intended. Subject to the principle de minimis, the use of an object must not be fraught with risk or danger to those who have to come into contact with it. The efficient state of a door includes its surface, and the question whether a slippery floor is dangerous must be considered. The main function of a floor is to be trodden on, and if it is dangerous because of a film intervening between it. and the foot it is not in an efficient state. Nothing in section 25 (2) is incon- sistent with the argument presented on behalf of the workman. 651 H. L. (B.) 1958 Larner v. A. B.C. Lp.652 HLL. (B.) 1958 ‘Latoer, °, A. E.G. Tp. HOUSE OF LORDS [1953] [He referred to London and North Eastern Railway Co. v. Berriman ** and Harrison v. National Coal Board.'*] Their Lordships took time for consideration. June 25, Lonp Porrer stated the facts and continued: My Lords, undoubtedly the respondents did their best to get rid of the effects ofthe flood, employing such of the day workers as could be spared and obtaining volunteers from them for work in the interval between day and night work and from the night shift at a later period, but in the learned judge’s opinion it was not possible for them to take any further steps to make the floor less slippery. I understand his view to have been, however, that, inasmuch as the effect of the storm left the gangway in question, and possibly other portions of the works, somewhat slippery and therefore potentially dangerous, they should have shut down the whole works if necessary, or at any rate such portion as was dangerous. My Lords, the difficulty which I feel about this solution is that neither the necessity for such an action nor its effect was ever pleaded, explored’ or considered until the respondents’ counsel was in the course of making his final speech. No doubt the point was then raised and argued on behalf of the respon- dents. It may indeed: be that an adjournment could have been asked for at that stage and evidence called on either side. But to take such action would have meant recasting the whole frame- work of the case, and I do not think it was incumbent upon the employers’ representatives to take this course. In my opinion they were entitled to rest upon the evidence as given and to ask that it should be considered as a whole and the requisite inference drawn from it. It was urged the mere happening of such an accident cast the ‘onus on them of explaining it and excusing themselves, but the facts. material to the matters pleaded had been given in evidence and where the relevant facts have been established no question of onus arises. ‘A number of complaints of negligence and breach of duty are set out in the statement of claim, but so far as common law negligence is concerned I can findqno suggestion that the factory should have been closed, nor was any amendment asked for or permitted to that effect. All the particulars set out in the state- ment of claim consisted of complaints which the judge found not 15 [1946] A.C. 278, 301, 908. 36 [1951] A.C. 639, 650; [1951] 1 ‘P.L.R. 1079; [1951] 1 All E.R. 1102,AC. AND PRIVY COUNCIL. to have been established and which were not persisted in before your Lordships. Upon the issue of common law negligence as now presented ~ the direction which should be given is not in doubt. It is that the duty of the tribunal. is to determine what action in the circumstances which have been proved would a reasonably prudent man have taken. The probability of © workman slipping is one matter which must be borne in mind but it must be remembered that no one else did so. Nor does the possibility seem to have occurred to anyone at the time. It is true that after the event Mr. Milne, one of the respondents’ witnesses, expressed the opinion that he would not have gone on to the floor in the condition in which it was and that it would be too dangerous to do so. But this was after the event, ‘and though he was the respondents’ safety engineer and was present until late that night, it seems never to have occurred to him that there was any danger or that any further steps than those actually taken were possible or required for the safety of the employees. The seriousness of shutting down the works and sending the night shift home and the importance of carrying on the work upon which the factory was engaged are all additional elements for consideration and without adequate information on these matters it is impossible to express any final opinion. Moreover, owing to the course taken at the trial there is no material for enabling one to judge whether a- partial closing of the factory was possible or the extent to which the cessation of the respondents’ activities would have retarded the whole of the work being carried on. In my view, in these ciroumstances, the appellant has not established that a reasonably careful employer would have shut down the works or that the respondents ought to have taken the drastic step of closing the factory. The question whether there has been a breach of statutory duty tums upon- the true construction of section 25 of the Factories Act, 1987. That section provides that: “‘ All floors, “steps, stairs, passages and gangways shall be of sound con- “ struction and properly maintained,” and section 152 (1) defines ‘* maintained ” as meaning “' maintained in on efficient state, in “ efficient working order, and in good repair."” Section 25, were it not for the definition, would seem merely to provide for sound construction and a proper state of repair. But the definition does give rise to a more difficult problem inasmuch as it requires both the existence of “ good repair’” and an “ efficient state.’ ‘Phe further provision as to “efficient working. order” may be 653, HL.) __ 3988 ‘Larner oe A.E.C. Lp, Lord Porter.654 HLL. () 1958 Lariwer 0, ALE. C.Lp. Lord Porter. HOUSE OF LORDS [1953} neglected ‘since that requisite is more appropriate to working machines than to a static portion of the premises. It has still, however, to be determined what it is which has to be in an efficient state. Does it include the elimination of some matter which is temporarily superimposed upon the floor or is the requirement confined to the floor itself? ‘To be efficient, the appellant contended, the floor must be fit for any of the purposes for which it is intended, e.g., for support and for passing over in safety. The difficulty of such a view is that it puts an excessive obligation upon the employer, Indeed, it was conceded that it could not be carried to the length of saying that a tem- porary obstruction, such as a piece of orange peel or the like, would make it inefficient. Once this concession is made it becomes a question of the degree of temporary inefficiency which constitutes a breach of the employer's obligation. Primarily, in my opinion, the séction is aimed at some generat condition of the gangway, e.g., a dangerously polished surface or the like or possibly some permanent fitment which makes it unsafe, But I cannot think the provision was meant to or does apply to a transient and exceptional condition, If it had been directed to such a state of affairs it would have been easy to say so. Indeed, in section 84 (2), the kind of language appropriate to such an object is to be found where there is provision that: “« All means of escape . . . shall be properly maintained and kept “free from obstruction.” Perhaps the best illustration of the extent of the obligation which has reached your Lordships’ House is to be found in Galashiels Gas Co. Ld. v. Millar, where the grips which ought to have held a lift in place at one of the floors for some unaccountable and unascertainable reason failed to act with the result that one of the workmen fell down the shaft and was injured. No blame could be attached, to the employers, yet as the duty was absolute your Lordships held them liable. The decision was given on the very section now under discussion and was much relied upon by the appellant. It differs, however, from the facts of the present case in that the lift itself was out of order, no temporary superincumbent danger had been added to it. It is no authority, therefore, for holding the respondents liable in the present case. It may be added as an additional factor that the obligation is a penal one, that the phraseology is at least ambiguous and although it bas to be remembered that the Act is intended for the protection of workmen and to that extent should receive a 1 [1949] A.C. 275; 65 T.L.R. 76; [1949] 1 All E.R. 819.AC. AND PRIVY COUNCIL. benevolent construction, yet employers are not lightly to be made criminals unless a clegr direction of an Act of Parliament has that effect. T agree with the Court of Appeal that this point fails and that there was no negligence at common law. I would dismiss the appeal with costs. Lorp Oaxsey. My Lords, I agree. On the question of common law negligence I have come to the conclusion, though not without doubt, that the judgment of the Court of Appeal ought to be affirmed. What is negligence is, in my opinion, a question of fact to be decided by the tribunal of fact. In the present case, although Pilcher J., who tried the case, did not, in terms, say that he was applying the standard of care which an ordinary prudent employer would have taken in all the circumstances, there is, in my view, no doubt that he intended to apply that standard. If he did, and if there was admissible evidence upon which he might base his finding, that finding ought only to be set aside where it is clear that he was wrong. There was such evidence in the present case, since the respondents themselves proved that the flooding of their factory was unprecedented ; that, owing to their system of partially open “‘ mystic” drains, oil in such circumstances would and did escape over the factory floor ; that in view of this state of affairs they put 40 men on specially to lay down all the sawdust they had on the floors and passages; that they kept 24 volunteers on to continue the work of cleaning the floors and passages but that they did not stop the work of the factory but allowed the night shift to come on duty. Now, although it is true that no questions were put in cross-examination to the respondents’ witnesses suggesting that they ought to have closed the factory, the’ point was raised by the judge during the argument and no application was made for an adjournment or for an amendment of the pleadings, The facts, indeed, were admitted and the principal question on the issue of common law negligence was whether such facts amounted to negligence. It does not seem to me that if a jury had found in such circumstances that the respondents had been negligent the Court of Appeal could properly have set aside their, verdict. But no doubt a judge’s finding is not entitled to the same finality and I think, on the whole, that since the evidence as to the condition of the floors and passages at the time the night shift came on was very meagre and that practically the only evidence of their slippery condition was the accident to the appellant, I come to the conclusion that 655 HL. &) 1958 ‘Larner %. ALE. C. Lo,656 HL. (E.) 1963 ‘Larimer . ALE. C. Lp. Lord Oaksey. HOUSE OF LORDS [1953] the conduct of the respondents can, at the highest, be said to have been an error of judgment in circumstances of difficulty, and such an error of judgment does not, in my opinion, amount to negligence. On the question of the construction of section 25 (1) of the Factories Act, 1937, I am of opinion that by virtue of that section and the interpretation section 152, the respondents were bound to maintain the floors and passages in an efficient state, but I do not consider that it was proved that they were not in an efficient state. A floor does not, in my opinion, cease to be in an efficient state because a piece of orange peel or a small pool of some slippery material is on it. Whilst I do not agree that the main- tenance of the floors is confined to their construction, I think the obligation to maintain them in an efficient state introduces into what is an absolute duty a question of degree as to what is efficient. I therefore agree that this appeal should be dismissed. Lorp Rev. My Lords, a film of oil had been deposited by flood water on the floor of the respondents’ factory. At a place where sawdust had not yet been applied to it the appellant without realizing the danger tried to get a heavy barrel on to a trolley; he was standing on one foot and using considerable force with the other when he slipped and received severe injuries. His case is that his injuries were caused by'a breach by the respondents of section 25 (1) of the Factories Act, 1937. That subsection pro- vides: ‘ All floors, steps, stairs, passages and gangways shall be “of sound construction and properly maintained.” It is not alleged that the floor was not of sound construction, but it is said that, by reason of the presence of the oil which was a source of danger, the floor was not at the time of the accident properly maintained. It seems to me that the first question is whether the film of oil can be regarded as a part of the floor. There may be difficult cases where something has been put on a floor without being incorporated with it and where it could be regarded as part of the floor, but this is not one of those cases. The oil was on the floor casually and temporarily and seems to me to have been no more part of the floor than a banana skin dropped by a passer-by. The question then is whether section 25 (1) applies to things which are not part of the floor but whose presence on it is a source of danger. If section 25 stood alone I would say that it did not. No doubt the section is one dealing with safety, but, even 0, keeping the surface of a floor free from dangerous material doesAc. AND PRIVY COUNCIL. 657 not appear to me to come within the scope of maintaining the H. L. (E.) floor. ‘The difficulty in the case arises from the definition of the word — “maintained ”’ in section 152 (1). That section provides: “In e “this Act, unless the context otherwise requires, the following A. E. “expressions have the meanings hereby assigned to them respec- “tively, that is to say:—. . . ‘Maintained’ means maintained “in an efficient state, in efficient working order, and in good “ repair.”” The word “‘ maintained ’’ occurs in many sections often in connexion with machinery. The whole definition can then be applied without difficulty. But, unless ‘‘ working order "’ is used in a very loose way, which one does not expect in an Act of Parlia- ment, to ask whether a floor is in efficient working order is to ask a meaningless question. It was not disputed that this part of the definition cannot be read into section 25 (1), and it was argued that because the context excludes this part of the definition it excludes the whole of the definition. I do not see why it should. I think that each part of the definition is severable. The phrase “‘in good repair’ is clearly applicable to a floor, but this floor did not cease to be in good repair by reason of the presence of the oil on its surface. The difficulty arises with regard to the phrase “‘in an efficient state.” “ Efficient ”” is an awkward word to use in connexion with a floor, but I cannot reject it as meaningless. The appellant argues that a floor cannot be in an efficient state if people are liable to slip on it, but again I think one must ask whether the danger comes from the floor or frora something which happens to be on it. It would be going a long way to say that a floor, perfectly good in itself, ceases to be in an efficient state whenever there is something on it which gives rise to.danger. If there is any ambiguity one is entitled to look at the consequences of adopting each of the possible interpretations. It is one thing to say that an employer is absolutely responsible for the condition of his floors even if the unsafe condition has come about through no fault-of his or his servants and could not have been remedied before the accident. But I would expect clearer words if it were intended that he should also be held responsible if something dangerous got on to his floor and made it for the time being “inefficient ”” through some inevitable accident or the fault of some other person not his servant. But I do not think that there is really any ambiguity here. The requirement of the definition is not that the floor shall be in an efficient state; it is that the floor shall be maintained in an AC. 1958. 43 1953 Latover, Lp. Lord Reld.