Bates v Parker
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LORD JUSTICE MORRIS,LORD JUSTICE ROMER |
| Judgment Date | 27 February 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0227-2 |
| Court | Court of Appeal |
| Date | 27 February 1953 |
[1953] EWCA Civ J0227-2
In The Supreme Court of Judicature
Court of Appeal
The Lord Chief Justice of England (Lord Goddard)
Lord Justice Morris and
Lord Justice Romer
MR STEPHEN CHAPMAN and MISS H.M. SHORE (instructed by Messrs Whitelock & Storr, agents for Messrs Sidney G. Brown & Deasignton, Birmingham) appeared on behalf of the Appellant (Defendant).
MR R.K. BROWN (instructed by Messrs Caporn & Campbell, agents for Messrs T.H. Ekins & Son, Birmingham) appeared on behalf of the Respondent (Plaintiff).
This is an appeal from the Judgment of Mr Justice Lynskey, who entered judgment- for the Plaintiff, a window cleaner, who alleged that injuries sustained by him were caused by a window frame at the Defendant's premises being in a dangerous, unusual and unsafe condition, of which he had no notice or warning, in consequence of which he fell from theladder on which he was working and sustained severe injuries.
The main facts of the case are not in dispute. The Plaintiff, in partnership with another man, carried on business as window cleaners and had for some considerable time been employed by the Defendant, who has a small hairdressing shop in Birmingham over which he lives, to clean the windows back and front every fortnight, the usual day for his visit being on Friday and it was on a Friday that the accident happened. The Plaintiff was cleaning the windows at the back and one of them, on the first floor, had three panels. In the middle panel there had originally been a dormer window. Some considerable time ago the dormer had been taken out, leaving the bottom part glazed and in the place previously occupied by the dormer a fan had been installed for ventilation purposes. The fan was held in position by a panel of plywood with a hole in the centre in which the fan was fixed and the plywood was bolted to the sides of the window, and there was in front of the fan on the outside a grille to prevent any great amount of dust getting in. Some considerable time before the accident, which happened on the 18th. February, 1949, the fan had been removed but the plywood panel remained in position, and, according to the Plaintiff, and as I think the Judge must be taken to have found, the window had been in this condition ever since the Plaintiff had begun to clean the Defendant's windows which was some time in 1947. There was some dispute as to when the grille had been removed, the Plaintiff saying that it had never been there since he cleaned the windows, and the Defendant saying that he had only removed the grille a few days previously. There does not seem to be any specific finding by the learned Judge on this point, but at any rate the grille was not there on the day of the accident, A few days previously the Defendant had removed the panel and was minded to glaze the space it had previously occupied. Accordingly he unbelted the plywood panel and put apiece of glass to fit the space, but unfortunately the shop at which he dealt was temporarily out of putty so he replaced the plywood in this space but did not bolt it. Consequently it was in a condition that a slight pressure would cause it to move. The Plaintiff's case was that when he came to clean this window he had often been in the habit of placing his. hand upon the plywood to steady himself when he desired to clean the glass panels on either side. He had a telescopic ladder on which he stood to reach the window, and he described the movements he went through when he wished to clean either the right-hand or the left-hand glass panel. On the day in question he put his hand through the hole in the plywood, that caused the panel to fall or move, and this in turn caused him to lose his balance whereby he fell. There is no finding by the learned Judge as to whether the Defendant knew that the Plaintiff was accustomed to steady himself by means of the plywood, and I do not think that there was any evidence that would justify a finding that the Defendant did know of this practice on the part of the Plaintiff. The most that can be said is that the Plaintiff said that the Defendant had seen him at work on one or two occasions when he had his hand on or through the panel.
The Defendant's evidence was that he had no knowledge that the Plaintiff adopted this method, but in any case I do not think that, even assuming the Defendant was in the yard on occasions when the Plaintiff was cleaning the window, that fact would bring home to him that the Plaintiff was adopting a system, if I may so put it, of steadying himself by this means. I need not therefore stay to consider what the position would have been had the Defendant been affected with this knowledge.
The learned Judge has held that the panel being in this condition amounted to an unusual danger or trap of which it was the Defendant's duty to warn the Plaintiff, while on the other hand the Defendant, who was unrepresented below, contends thatthere was no such duty, and reliance is placed on his behalf on the case of Christmas v. General Cleaning Contraotors Limited (( 952, 1 King's Bench, 141), a case which Counsel for the Plaintiff very properly cited to the Court below, The learned Judge said that but for that case he would have regarded the present as quite a simple matter and went on to say that he thought the decision referred to depended entirely upon the particular facts of that case. That also was a case of a window cleaner in which a window, being ill-balanced, came down upon the cleaner's hand and caused him to overbalance and fall. In allowing the appeal by the occupiers of the premises, Lord Justice Denning said at page 148: "What, then, is the law on this matter? Is a householder responsible for seeing that windows are safe for window cleaners to hold on to? I think not,. The householder is concerned, of course, to see that the windows are safe for his servants to open and close, and indeed to clean, but he is not concerned to see that they are safe for a window cleaner to hold on to. The duty which a householder owes to his servants is much higher than that which ho owes to a window cleaner, who is only an invitee. The householder employs the window cleaner as an independent contractor to clean his windows, and leaves it to him to decide how he shall do it and what safeguards he shall take, whether he shall use ladders or cradles or simply stand on the sill. The householder does not know what strains or stresses the window cleaner is going to put on the window. If the window cleaner chooses to rely on the window for his safety, then it is for him to take steps to see that it is safe for his special purposes, and not for the householder to do so. The window cleaner had no right to expect the windows to be in perfect condition. Windows, which are often quite serviceable for ordinary purposes, may yet have some minor defect, such as rusty screws or worn sash-cords, or ill-balanced weights, making them unsuitable for window cleaners toput their trust in. Such defects are, for window cleaners, common recognizable dangers of everyday experience and cannot be classed as 'unusual'. They are therefore dangers against which window cleaners must provide their own safeguards. They cannot saddle the householder with damage which results from them: see London graving Dock v. Horton. In my opinion, therefore, the Judge was wrong in finding the club liable, and their appeal should be allowed".
In my opinion the law thus laid down is not peculiar to window cleaner, nor does it depend simply on the facts found in that case. The decision, in my opinion, is that where a householder employs an independent contractor to do work, be it of cleaning or repairing, on his premises, the contractor must satisfy himself as to the safety or condition of that part of the premises on which he is to work. He is left to himself to decide how and in what manner he will perform his task, Whether he is to put his ladder in one place or another, or to shift it or, instead of shifting it. to stretch and endeavour to support himself with his other hand, is a matter for him to decide and in the instant case it is quite clear that had the Plaintiff chosen to move his ladder a foot or so to right or left he could have cleaned the panels on either side of the plywood in perfect safety. Equally, had he wished to carry out the operation as he did, he could have tested the plywood to see whether it was firm before he used it as a support before leaning over to clean the other window, It was not, as it seems to me, for the Defendant to tell him how he was to do it or to call his attention to the fact that the piece of plywood was not in a condition to serve as a support.
Mr Brown put the case very attractively for the Plaintiff when he said that the decision in...
To continue reading
Request your trial
- Papatonakis v Australian Telecommunications Commission
-
Davy v Avonmore Creameries Ltd
...Contractors v. Christmas [1953] A.C. 180; [1952] 1 K.B. 141. 4 London Graving Dock Co. v. Horton [1951] A.C. 737. 5 Bates v. Parker [1953] 2 Q.B. 231. 6 Daly v. Greybridge Co-Operative Creamery Ltd. [1964] I.R. 497. 7 Roche v. P. Kelly & Co. Ltd. [1969] I.R. 100. 8 Donaghey v. Boulton & Pau......
-
Wigley v British Vinegars Ltd
...the claim at common law was withdrawn at the trial. This withdrawal was based on the. well known principle illustrated by such cases as Bates v. Parker. 1953 2 Queen's Bench, 331, to the effect that where a householder employs an independent contractor to do the work, be it of cleaning or r......
-
Smith v Austin Lifts Ltd
...on the authority of such cases as Christmas v. General Cleaning Contractors Ltd. and Caledonian Club Trust Ltd. [1952] 1 K.B. 141 and Bates v. Parker [1953] 2 Q.B. 231, which are clearly distinguishable. 8I turn then to the first Respondents, the employers. Here I have greater difficulty.......