Bennett v Chemical Construction (G.B.) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE STAMP |
| Judgment Date | 10 June 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0610-2 |
| Date | 10 June 1971 |
| Court | Court of Appeal (Civil Division) |
[1971] EWCA Civ J0610-2
Lord Justice Davies
Lord Justice Edmund Davies and
Lord Justice Stamp
In The Supreme Court of Judicature
Court of Appeal
Civil Division
(From Mr. Justice Bean — Manchester)
Mr. JOHN WOOD, Q.C. and Mr. ROY McAULAY (instructed by Messrs. Barlow, Lyde & Gilbert) appeared on behalf of the Appellants (Defendants).
Mr. B.A. HYTNER, Q.C. and Mr. M. ALLWIES (instructed by Mr. W. H. Thompson) appeared on behalf of the Respondent (Plaintiff).
This is an appeal by the defendants from a judgment of Mr. Justice Bean given at the Manchester Assizes on the 18th December last, when he awarded the plaintiff damages in the sum of £13,635 is respect of personal injuries sustained while in the employment of the defendants at Shellstar works at Ince, Cheshire, on the 21st April, 1969. The damages were made up as follows: agreed special damage, £2,135; general damages for pain, loss of amenity and so on, £1,500; and damages for loss of future earnings or earning capacity, £10,000. From that judgment the defendants appeal. By their original Notice of Appeal they appealed only against the amount of the damages, but by an Amended Notice of Appeal they sought to submit that the judge was wrong in coming to the conclusion that they had been negligent. That Amended Notice of Appeal was in fact out of time, but no point has been taken about that, and Mr. Wood, who appeared for the appellants, has strenuously argued that the judge was wrong in coming to the conclusion that the defendants were negligent.
The accident happened in this way. The plaintiff was a foreman steel erector working on this site. Some week or so before the date of the accident a number, I think a dozen, electrical control panels had been delivered at the site. They had not been installed in their final positions but were stored against a wall. The nature of those panels can be seen from the two photographs which were put in evidence, and their position is roughly delineated in a sketch plan which the plaintiff himself had made and was put in evidence. I need not describe them in any detail. They can be seen from the photographs. They were to be placed on a plinth 6 inches high and 3 feet wide. When full, that is to say when they had instruments installed in them as one sees in the second photograph, they weighed about 14 to 16 cwt., and when empty, that isto say without instruments installed in them, they weighed about 7½ cwt.
These panels, as I say, had been placed in a convenient place pending their installation on the plinth on which they were to be placed. It so happened that on the 21st April it was a very wet day and so it was decided (I do not think we have been told by whom) that the plaintiff with his other steel erectors, together with the electricians, should instal all or some of these panels in their prescribed place.
I look now at the sketch. One sees on that that apparently panel No. 1 and panel No. 2 had been placed in position at the end of the sort of U-shaped plinth that one can see running round three sides of the particular room or shop. At the time when the accident happened, the men were engaged in moving panel No. 3, which one can see at the top of the sketch, from its position. That one was empty. Panel No. 4, behind panel No. 3, was in fact full and would be heavy. There were about six men working, moving, shifting and lifting slightly on to the plinth and moving crabwise panel No. 3, with a view, it would, appear, to taking it over the plinth and moving it across the floor to its prescribed position, wherever that was.
The plaintiff and a Mr. Buist, who was the supervising electrician, were standing in the middle of the floor, roughly where the plaintiff has written in "A" and "B" on the sketch, when it was observed by the plaintiff, and I think Mr. Buist too, that panel No. 3, upon which the men were working, was toppling to some extent. Two of the men were apparently on the same side, or at the corners on the same side, as Mr. Buist and the plaintiff were; so both the plaintiff and Mr. Buist rushed towards "this panel to try to prevent it falling down and injuring the men whowere endangered. Mr. Buist went to the side which is marked "AX" in the left-hand comer of the panel; and the plaintiff himself went more or less to the middle, where we have "BX". They did apparently manage to steady the No. 3 panel, but unfortunately it would appear that the No. 4 panel, the full one weighing about 17 cwt. or so, somehow or other toppled over itself and came down on to the No. 3 panel and they both of them fell, causing considerable injuries to the plaintiff.
The learned judge heard the evidence and at the end of it all he found himself unable to decide precisely how the accident had occurred. The only real evidence as to how the accident did occur — and this was pure hypothesis — was contained in the last answer but one given in cross-examination by a Mr. Dobson, who was an electrician who gave evidence for the plaintiff. The judge said, at the bottom of page 18, "Putting aside gremlins, what caused it to fall? (A) I did not see string". That remark refers to a suggestion that had been made in the pleadings that No. 3 and No. 4 panels, although when they were delivered to the site they were not fixed together in any way, had somehow or other been tied together, and the plaintiff had alleged that the defendants were negligent in not seeing that that tie was there — the defendants in their Defence saying that the plaintiff was guilty of contributory negligence in not seeing that it was "there. Now this is Mr. Dobson's evidence. He went on: "This can only be once again supposition on my part. It was either fastened with a piece of string or there was an obstruction in such a way connected between the two panels, perhaps on the rollers or something like that, or one of the scaffolding tubes touched it; but definitely something moved it. It did not move on its own, and the moat reasonable thing to think is that they were connected by thestring across the two". It is rightly pointed out by Mr. Wood that there was no evidence at all in the case that there was any string or any tie between these two panels. There obviously had been some discussion among the workmen, because both Mr. Dobson and the plaintiff had heard that there was string; but there was no evidence that there was string.
The judge's conclusion on the facts can be expressed shortly. After a reference to that evidence of Mr. Dobson, the judge's conclusion is to be found at the bottom of page 2 and the top of page 3 of his admirably short and concise judgment. "The defendants called no evidence…" That is a point, I think, of very considerable significance in this case. There is no doubt that these panels did fall. The plaintiff was unable to show what caused them to fall. It was a matter of speculation. But the defendants did not themselves, either in cross-examination or by calling evidence, suggest any explanation of the fall of these panels. "The defendants called no evidence", the judge said, "and did not persist in any allegation of contributory negligence". I will come back to that in a moment. "It seems to me beyond peradventure that the rear heavy panel 4 could not have fallen un-less either it was attached in some way to No. 3, in which case the workmen ought to have separated it before moving No. 3, or the stability of No. 4 was interfered with either by scaffold poles or careless handling. Whatever the exact cause, panel 4 could not have toppled forward without some lack of care on the part of the men moving No. 3, and in my judgment the plaintiff has an unanswerable case on negligence".
I can say at once that I entirely agree with that conclusion of the learned judge.
Mr. Wood has strenuously argued that really there was no evidence on which the judge could make a finding of negligence,since the plaintiff had failed to prove how the accident happened. He went further and said that it would he quite wrong for his Court to approach the case on the basis of the well-known doctrine of res ipsa loquitur. He pointed out that, although it had been indicated in correspondence before the trial that the plaintiff was going to rely on that doctrine, no amendment to the piecing was made; and the learned judge never himself referred to res ipsa loquitur.
In my view it is not necessary for that doctrine to be pleaded if the accident is proved to have happened...
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