Balfour v Barty-King. Hyder & Sons (Builders) Ltd, Third Parties
| Jurisdiction | England & Wales |
| Judgment Date | 14 December 1956 |
| Judgment citation (vLex) | [1956] EWCA Civ J1214-2 |
| Court | Court of Appeal |
| Date | 14 December 1956 |
[1956] EWCA Civ J1214-2
The Lord Chif Justice of England, (Lord Goddard)
Lord Justice Morris and
Mr Justice Vaisey
In The Supreme Court of Judicature
Court of Appeal
Mr. A. MELFORD STEVENSON Q.C and Mr. GEOFREY N. CRISPIN (instructed by Messrs Boodle, Hatfield & Co.) appeared on behalf of the Appellants (Defendants).
Mr. JOHN THOMPSON Q.C and Mr BERNARD CAULFIELD (instructed by Messrs Barlow, Hyde & Gilbert) appeared on behalf of the Respondent (Plaintiff).
THE LORD CHIEF JUSTICE: The Judgment I am about to deliver is the Judgment of the Court.
This is an appeal from a Judgment of Mr Justice Havers, who entered Judgment for the Plaintiff against the defendants, and also gave Judgment for the Defendants against the Third Parties. It arises out of a disastrous fire which took place at a house called Bitchett Wood near Revonoaks, and for which there is no doubt, on the finding of the learned Justice, the Third Parties were responsible. Unfortunately, they have gone into liquidation and are apparently hopelessly insolvent. They have entered no appeal, and what this Court has to determine is whether or not the. Plaintiff is entitled to maintain the action against the defendants.
Bitchett Wood is, we understand, a large country house which, like so many others, has been, divided into separate dwelling houses, and in the port known as Tudor King, Mr and Mrs. Barty-King lived. The Plaintiff occupied another part, known as white Cottage, which adjoined and indeed was contiguous to Tudor King.
At te end of January 1954 there was a severe frost, and on the 29th Mrs. Barty-King discovered that the pipes and also the cistern that supplied water to her house (I shall refer to these two parts of Ritchett Wood as the Plaintiff's and Defendants' houses) had frozen. Going afraid that as the central heating was on, the freezing up of the water supply might cause an explosion, she was naturally desirous of getting the system thawed out.
It so happened that the Third parties, who were builders, were engaged in creating some source in the neighborhood, and she went to the site and asked the foresan or some person in autherity if they could assist her by sending somebody to the necessary work. Whoever the interviewed on behalf of the Third Parties abroad to do this, and the learned Judge found that there was an employment by Mrs. Barty King of the Third Parties, and that the service, or no itturned out disservice which they rendered her was not a were matter of courtesy but a matter of business.
They undertook to do the work. They sent two men to Tudor King. They came, provided with a blow lamp, some wire and perhaps some other tools, but neither of the man that came was plumber. One of them, the one who eventually used the blow lamp, seems to have been young apprentice carpenter, and no doubt if he had been a man of more experienced he would not have attempted to do this small job in the highly dangerous way that caused the disaster.
The cisterns were in a loft and Mrs. Barty-King directed the man there. She knew they had blow lamp. She assumed, naturally enough that they were men fit to do the work and she gave them no special instructions. This loft however had a great deal of combustible material in it. In addition to a certain amount of straw and rubbish, the Pipes were at any rate for the port part, lagged with felt. Mr Barty had supplied the men with an electric lamp, and as one would expect she did not go up into the loft.
The men traced the pipe and came to the conclusion, no doubt correctly, that the ice in the pipe was in the part that was lowest in the loft running along what he called the valley. There was a steady draught all the time in the loft, and it seems clear, and the learned judge found, that to apply a blow lamp to or near the pipe, even if the particular piece to which the heat was applied was unlagged, was a hazardous and dangerous way of doing the job, as the flame and heat necessarily came into contact with the felt lagging. At any rate, the felt lagging caught fire, the men tried to beat it out with their hands, the draught caused sparks to fly, and in an exceedingly short time the whole loft was on fire. The roof caught fire and it very quickly spread to White Cottage and caused a great amount of damage to that house, amounting to over £3,000.
It should perhaps be mentioned that in her evidence Mr Barty-King said that she thought that what was to be thawed out was the tank, ad water was at water coming through the pipes. No point was really made of this at the trial. The statement of Claim alleged that these men were employed to thaw out the pipes and that was admitted in the Defence.
In view of what happened, we do not think it would really have made any difference, as the use of this blow lamp in the loft anywhere in the neighborhood of the folt lagging was clearly a highly dangerous operation. The use of a blow lamp is no doubt a very common methed of freeing frozen pipes. There are other metheds and metheds which should be used where it is dangerous to use a blow lamp, as it must be if it is used in the neighborhood of combustible material. A heated brick, for instance, placed under the pipe at the spot where ice had formed would have been safe and equally efficacious, Mrs. Barty-King would naturally not concern herself with the way these men who had been sent to do the job set about it, nor as we have said was she, nor would one expect her to be, present in the loft when they were doing the work.
The question which this Court has to consider is whether Mr. Justice Havers was right in holding that for the spread of the fire from their...
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