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IV. Where it appears to an inspector under this Sect. 4. Act that any act, neglect, or default in relation Notice by to any drain, watercloset, earthcloset, privy, ashpit, sanitary water-supply, nuisance, or other matter in a fac- authority tory or workshop is punishable or remediable under defects in the law relating to public health, but not under this factory or Act, that inspector shall give notice in writing of such act, neglect, or default to the sanitary authority (e) in whose district the factory or work

under the Public Health Act, 1875 (38 & 39 Vict. c. 55), the following are specified by s. 91 (of that Act), namely :Any premises in such a state as to be a nuisance or injurious to

health (sub-s. 1). Any house or part of a house so overcrowded as to be dangerous

or injurious to the health of the inmates, whether or not

members of the same family (sub-s. 5). Any factory, workshop, or workplace (not already under the opera

tion of any general Act for the regulation of factories or bakehouses), not kept in a cleanly state, or not ventilated in such a manner as to render harmless as far as practicable any gases vapours, dust or other impurities generated in the course of the work carried on therein, that is a nuisance or injurious to health, or so overcrowded while work is carried on as to be dangerous or injurious to the health of those employed therein

(sub-s. 6). But the above-mentioned provisions (sub-ss. 5 and 6) of the Public Health Act, 1875, do not apply to a factory or workshop which is subject to this Act. S. 101, post. And the words italicised in the enactment as above cited are repealed. S. 107, 6th sched., post.

(e) The expression “sanitary authority” means an urban or rural sanitary authority within the meaning of the Public Health Act, 1875, and any commissions, board or vestry in the metropolis having like powers as such urban sanitary authority. S. 96, infra. For the meaning of the expression in the application of the Act to Scotland and Ireland, see ss. 105, 106. By the Public Health Act, 1875, where it appears

to
any

local authority by the report of their surveyor that any house is used or

B 2

eertain

Sect. 4. shop is situate, and it shall be the duty of the

sanitary authority to make such inquiry into the subject of the notice, and take such action thereon, as to that authority may seem proper for the purpose of enforcing the law.

An inspector under this Act may, for the purposes of this section, take with him into a factory or a workshop a medical officer of health, inspector of nuisances, or other officer of the sanitary authority.

(2.) Safety. Sect. 5. V. With respect to the fencing of machinery in a Fencing of factory (f) the following provisions shall have

effect : machinery.

(1.) Every hoist or teagle near to which any

person (g) is liable to pass or to be employed, and every fly-wheel directly

connected with the steam or water or intended to be used as a factory or building, in which persons of both sexes are employed or intended to be employed at one time in any manufacture, trade or business, the local authority may, if they think fit, by written notice require the owner or occupier of such house, within the time therein specified, to construct a sufficient number of waterclosets, earthclosets, or privies, and ashpits, for the separate use of each sex. And any person who neglects or refuses to comply with any such notice is liable for each default to a penalty of £20, and to a further penalty of 40s. for every day during which the default is continued. 38 & 39 Vict. c. 55, s. 38 ; and v. supra.

(f) The application of this section and of ss. 6, 8, 9, infra, is confined to factories. Threshing machines, it may be mentioned, are now required to be fenced. 41 Vict. c. 12.

(g) It will be observed that the requirement as to fencing machinery applies to the protection of any person who is liable to pass or be employed near to it, and is not limited, as it was in some cases under the repealed Acts (see 7 & 8 Vict. c. 15, s. 21; 19 & 20 Vict. c. 38 ; Britton v. The Great Western Cotton Company, 41 L. J. Ex. 99 ; L. R. 7 Ex. 130 ; and per Parke, B., Coe v. Platt, 6 Exch. 757), to the protection of children, young persons, and women only.

other mechanical power, whether in the Sect. 5.
engine house or not, and every part of a
steam engine and water wheel, shall be

securely fenced (h); and
(2.) Every wheel-race not otherwise secured (i)

shall be securely fenced close to the edge

of the wheel-race; and (3.) Every part of the mill-gearing (j) shall

(k) It was decided upon the corresponding provisions of the repealed Acts that their application was not limited to that part of the machinery which first conveys the power ; but that it extended to every wheel from first to last, which is in any sense the medium of communication, although that part which actually does the work need not been fenced. Holmes v. Clarke, 6 H. & N. 349 ; 30 L. J. Ex. 135 ; 7 H. & N. 937; 31 L. J. Ex. 356. It will not be sufficient that the machinery be fenced in the ordinary manner used and approved as sufficient in the best regulated mills in the district, “ for,” as was said by the Court in Schofield v. Schunk, 24 L. T. 253, “the best regulated mills might be ill-regulated mills in which the

machinery was not securely fenced.” But the adoption of the best means of fencing machinery known at the time would be sufficient. Id.

() For the purpose of being “otherwise secured,” it is not sufficient that the wheel-race is only accessible on unusual occasions. Britton v. Great Western Cotton Company, ubi supra.

(j) The expression mill-gearing,” comprehends every shaft, whether upright, oblique, or horizontal, and every wheel, drum, or pulley by which the motion of the first moving power is communicated to any machine appertaining to a manufacturing process. S. 96.

It has been held by the Court of Queen's Bench, upon 7 & 8 Vict. c. 15, s. 21, to amount to no excuse for not fencing a shaft (being part of mill-gearing in motion), that it was not near to where any person was employed, but was at such a distance and height away from the nearest place of approach thereto, and was so situated that no danger or liability to accident existed therefrom so as to require it to be fenced (Doel v. Sheppard, 5 E. & B. 856 ; 25 L. J. Q. B.

Sect. 5.

either be securely fenced or be in such position or of such construction as to be equally safe to every person employed in the factory as it would be if it were se

curely fenced; and (4.) All fencing shall be constantly maintained in

an efficient state while the parts required to be fenced are in motion or use for the purpose of any manufacturing process (k).

124, and 19 & 20 Vict. c. 38, s. 4). The requirement of this section, however, is in the alternative, namely, that the mill-gearing shall either be securely fenced, or be in such a position, or of such construction as to be equally safe to every person employed, as it would be if it were securely fenceil.

(k) It would seem that the obligation imposed by sub-s. 4 does not apply to cases in which the engine is used for other than manufacturing purposes ; as, for instance, trying whether the machinery is in repair. See Coe v. Platt, ubi supra. The mill-gearing in each separate room of a factory is separate and distinct from the millgearing in any other room ; and, consequently, requires fencing only when some manufacturing process is going on in that room, and it is in motion for that purpose. Thus, in a cotton factory the machinery was worked by a steam-engine which drove an horizontal shaft passing along the lower floor of the factory ; this horizontal shaft moved several vertical shafts which passed through the upper floors, and worked the machinery by which the cotton was manufactured in the different rooms of the factory. One of these vertical shafts had its fencing removed for the purpose of repair, and all the machines which were worked by this shaft were at rest ; but the vertical shaft itself revolved, and the process of manufacture continued to be carried on in the other rooms of the factory. In an action brought by a young person, an employée in the factory, for an injury sustained by the revolution of this vertical shaft, the question in effect was, whether that part of the machinery which caused the accident was in motion for a manufacturing process. And the Court of Exchequer decided it in the negative. Coe v. Platt, 7 Exch. 923; 22 L. J. Ex. 164.

Sect. 5.

A factory in which there is a contravention of this section shall be deemed not to be kept in conformity with this Act (1).

(1) For this offence the occupier will be liable to a penalty of £10. S. 81. But if any person is killed or injured in consequence of his neglect in complying with the requirements of this and following sections, the penalty to which he renders himself liable will be £100. S. 82.

Moreover, in the event of personal injury to any person employed at the factory, arising from such neglect to fence any machinery, &c., required by the Act to be fenced, the owner or occupier will be liable to an action for the recovery of damages at the suit of such person (or, if he is killed, at the suit of his personal representatives, under Lord Campbell's Act, 9 & 10 Vict. c. 93); this action being founded upon the breach of a statutory duty. The fact that the statute imposes penalties does not deprive the injured party of this right of action, the remedy by penalties being cumulative. Caswell v. Worth, 5 El. & Bl. 849 ; 25 L. J. Q. B. 121 ; 2 Jur. N. S. 116; Couch v. Steel, 3 E. & B. 402; 23 L. J. Q. B 402. And the duty to fence being thus imposed by statute, the occupier will be liable for the injury sustained by the servant in consequence of a neglect of that duty, notwithstanding the general doctrine (see The Barton's Hill Coal Co. v. Reid, 3 Macq. H. L. Ca. 266; 2 Jur. N. S. 767) that the servant cannot recover for injuries sustained whilst in his master's service. Holmes v. Clarke, ubi supra, n. (h). But the negligence of the plaintiff would be a good defence ; id. ; Caswell v. Worth, ubi supra ; M*Cracken v. Dargan, 1 Irish Jurist, N. S. 404. In one case it was held, that where machinery is required by Act of Parliament to be protected so as to guard against danger to persons working it, if a servant enters into the employment when the machinery is in a state of safety, and continues in the service after it has become dangerous in consequence of the protection being decayed or withdrawn, but complains of the want of protection, and the master promises to restore it, but fails so to do, the master is guilty of negligence, and if any accident occurs to the servant, is responsible. “Many cases,” says Pollock, C. B., delivering the

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