Bath v British Transport Commission
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SOMERVELL,LORD JUSTICE BIRKETT,LORD JUSTICE ROMER |
| Judgment Date | 02 June 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0602-1 |
| Court | Court of Appeal |
| Date | 02 June 1954 |
[1954] EWCA Civ J0602-1
In the Supreme Court of Judicature
Court of Appeal.
Lord Justice Somervell
Lord Justice Birkett and
Lord Justice Romer.
MR R. MARVEN EVERETT, Q. C. and MR MARK ROMER (instructed by Mr M. H. B. Gilmour) appeared on behalf of the Appellants (Defendants).
MR F. W. BENEY, Q. C and MR HUMFREY EDMUNDS (instructed by Messrs Arnold Carter & Co.) appeared on behalf of the Respondent (Plaintiff).
This is an appeal from a judgment of Mr Justice Gorman in a oase in which the Plaintiff, as widow of the deceased, claimed damages under the Fatal Accidents Act against the Defendants. She as the widow and the other administrator alleged two breaches of the factories Act and negligence at common law. The exact circumstances of the accident are not very clear, The man was working with another man at what is called shuttering in a dry-dock. We havephotographs which show the nature of the work which was being done. The platform (if that is the right word) which runs down each side of the dry-dock was being re-conoreted, and this work was the placing of a timber support against the edge of the concrete where it begins to descend into the dry-dock and down to a step or altar some 3 ft. or so below the surface of the ground. This wooden support is built up and then the concrete is poured in position and then hardens. Once it is hardened the timber framework can be taken down and moved on to the next bit. At the time of the accident there was also an open culvert in the middle of the platform and not far from the edge. This man, who was returning to his place where he was working, crossed the culvert, and for some reason which, as I say, was not really explained, he stumbled as he approached the edge of the platform where he was working. He fell over on to the first step or altar, as it is called, down on to the further steps to the bottom of the dock and lost his life as a result of the injuries.
It is alleged in the Statement of Claim, in the first instance, that there was a breach of section 25(3) of the Factories Act which provides that "All openings in floors shall be securely fenced, except in so far as the nature of the work renders such fencing impracticable". Then it is said that contrary to section 26(1), a familiar section, the Defendants failed to provide or maintain safe means of access to the place at which the deceased was required to work. Then it was alleged, though this was not, I think, gone into very much in the evidence that there was a breach of section 26(2) which provides: " Where any person is to work at a place from which he will be liable to fall a distance more than ten feet, then, unless the place is one which affords secure foothold and, where necessary, secure hand-holds, means shall be provided, so far as is reasonably practicable, by fencing or otherwise for ensuring his safety". Then with regard to negligence at common law it was said that the Defendants were negligent in not providing afencing or guard-rail or device to prevent the fall of persons working, as these men were, on the step. I will elaborate that later in my judgment.
The learned Judge decided that all those claims succeeded, that there was a breach of the Factories Act, or at any rate of section 25(3) and section 26(1), and also negligence at common law, and the Defendants appeal. With respect, I have come to the conclusion that there was not a breach established here of section 25(3). The general nature of a dry-dock is familiar and we have both a plan and photographs. It is, of course, a large excavation with concrete or built-up sides into which a ship can float and then the water can be got out and work can be done on the ship. It seems to me quite impossible to regard the excavation which constitutes the dry-dock as an opening in a floor. I do not know that I can really say much more about that point. One is sometimes tempted, I think, to try and say what perfectly familiar words mean, but if they are, as these words are, perfectly familiar all one do is to say whether or not one regards them as apt to cover or describe the circumstances in question any particular case. I cannot myself regard this dry-dock into which this man fell as an opening in a floor.
With regard to the second point, safe of access there is, I think, a certain difficulty in being quite certain what the learned Judge had in mind in the paragraph in which he dealt with that issue. If it had been suggested that this open culvert constituted a means of access which was unsafe it could be pointed out with some force by the Defendants that there was a few yards further along from the place where this man was working, as it were, a concrete bridge which a man could cross without having to step over the culvert. On the other hand, if the learned Judge had in mind this question of fencing, which I will deal with when I come to negligence at common law, anotherquestion arises which I will deal with later. With regard to section 26(2) which deals with secure footholds and hand-holds, I do not think it is established that this place came within that. I think there may have been both secure footholds and hand-holds, and even if there were not it may be that would fail on causation. But I have come to the conclusion that the learned Judge was right in holding that there was here a failure to take due care at common law. I think that the failure was this and it does raise the question of the application of section 26(1) and also the question of causation. This first step on which the men were working from which there was a steep descent with other stops, the first drop being about 6 ft. down into the dry-dock, was only 2 ft. 6 ins, in width. That width was lessened to some extent by the shuttering which the men were putting up. The shuttering is shown on the plan, but it does not give the exact number of inches which are taken off the 2 ft. 6 ins. but I dare say about 4 ins. It was therefore a narrow platform above a big drop and the men would be working with their backs to the drop. The building regulations do not apply, but it was very like the position in which men are who are asked to work on scaffolding high up on a building. Although the work has been going on for some three years without mishap, I think it was a position in which if someone had directed his mind to the possible danger of these men working on this very narrow platform with their backs to the drop some protection should have been afforded behind. That was the view which the learned Judge came to, though it may be on the borderline I am not satisfied that it was not right.
That, of course, raises the question of causation. This man was not actually working at the time. He was going to this place, but it is, I think, clear on the evidence that he was, perhaps as one would expect, getting down on to the step at the place where the shuttering was and where there would have been a protecting fence if what I think ought to have been done had beendone. It was not, I think, really disputed that if there had been such a fence there it could not have been said that it would not have saved the fall which caused the man's death. It is possible, of course, that he might have fallen over the fence, but the probabilities are, and one has to act on probabilities, that if there had been such a fence there it would have saved his life. I think, therefore, that if there should be a protection at a place at which a man works and he falls over because there was no protection it is not an answer to say: "At the time when you fell you were getting to the place and were not actually working at it". On the other hand I do not think that the fact that an argument on causation does not succeed means that one should apply section 26(1) and say that because here the man was injured when he was approaching his place of work that therefore there was a breach and there was no safe means of access. It is a narrow point and it may not be of great importance, but I do not think the fact that the injury occurred in the way I have described entitled the Plaintiff to maintain that there was a failure to provide safe means of access. I think the only failure established was the failure at common law which applies — and I should make this clear — to this particular type of shuttering work — at least that is all I am deciding — which was being done on the upper tier. I am not suggesting any general principle applicable to ordinary work in dry-docks.
For these reasons I think the appeal should be dismissed.
I agree. I do not need to add to what my Lord has already said as to the description of the place where this man was working and the circumstances in which he fell to his death. In this case the widow has received an award of damages at the hands of a Judge who listened to the evidence who found that the Defendants were responsible on two heads, firstly, the breach of statutory duty to which my Lord has already referred, and, secondly, at common law. On the point of statutory duty I do not desire to add anything to what my Lord has already said as I agree with the conclusion which he has announced on that matter.
I would just like to say a word about the liability at common law. The learned Judge found the Defendants were liable at...
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