Billings (A. C.) & Sons Ltd v Riden

JurisdictionEngland & Wales
JudgeLORD JUSTICE DENNING,LORD JUSTICE BIRKETT,MR JUSTICE ROXBURGH
Judgment Date26 July 1956
Judgment citation (vLex)[1956] EWCA Civ J0726-1
Date26 July 1956
CourtCourt of Appeal

[1956] EWCA Civ J0726-1

In The Supreme Court of Judicature

Court of Appeal

Before:-

Lord Justice Denning

Lord Justice Birkett and

Mr Justice Roxburgh

Between:-
Ethel Maud Riden (Widow)
-and-
A.C. Billings & Sons Limited Ministry of Works and the Commissioners of Customs and Excise

Mr. G.G Baker, Q.C. and Mr. Michael Kempster (instructed by Messrs Syrett & Sons, Agents for Messrs Ivens, Thompson & Green, Cheltenham) appeared on behalf of the Appellant.

Mr. N.R. Fox-Andrews, Q.C. and Mr. R.C. Hutton (instructed by Messrs Gibson & Weldon, Agents for Messrs H.D. Keith Scott, Gloucester) appeared on behalf of the Respondents.

LORD JUSTICE DENNING
1

On the 17th November, 1953, Mrs. Riden, then aged 71. fell in to a basement area in Cheltenham and was severely injured. She seeks to recover damages.

2

The accident happened at a row of houses known as Cambrai Place, Cheltenham. They are rather old houses with basements. They stand about 30 feet back from the street. Each is approached by a footpath and then four steps up to the front door. Each house has a forecourt and a basement area. The steps to the houses were fenced by iron railings on each side which were sufficient guard to prevent anyone falling from the steps into the basement area.

3

This case is concerned with Nos. 25 and 26 Cambrai Place No. 25 has been occupied for some 18 years by the Ministry of Works and used by the Commissioners of Customs and Excise as offices. On the top floor, however, these lived a Mr. and Mrs. Privett who acted as caretakers. When this house was built it was approached from the street in the same way as the others by means of a footpath and steps to the front doors but many years ago an invalid lived there who could only get a tout in a wheeled chair. So there had been constructed for his benefit a sloping ramp made of paving stones which sloped up from the street in a continuous incline to the top of the steps, but with railings set into the ramp fencing it on each side. In November 1953 the Ministry of works determined to remove the sloping ramp, uncover the steps, and to restore the original approach by making a concrete footpath to the steps. They employed Billings Ltd. as contractors to do the work. Billings started work on Monday, 16th November. By the evening of Tuesday, 17th November, the work had got to this stage: Billings had broken up the front half of the ramp which was near the street and had placed rough rabble on to it and a plank across the ramp. They had thrown broken stones and debris on to the forecourt of No. 25. They had removed the railings aneach side of the ramp and bad put up a barricade of planks on one side (next to the basement area of No. 25) but they had pat nothing in place of the railings on the other side next to No. 26. The workman left the work is that state at 4.90 p.m. on 17th November when it was setting dark.

4

The result of Billings activities was that there was no longer any safe means of access to the front door. Billings' men said that they made a plank walk up to the entrance with stakes and ropes alongside so as to guide people along its but they were disbelieved on this point. The foreman said that they made the place safe for anyone leaving or entering the premises. They did nothing of the kind. The result was that anyone seeking to go in or out of No. 25 by the front door had to clamber up as best he could. The Judge found there were four possible ways of doing this. None of them was at all convenient or safe but the least unattractive was the "fourth route". This route meant going on to the forecourt of the next door house No. 26 Cambrai where there was an auction mart, and then skirting round acme bushes (not far from the basement area of No. 26) and getting up on to the remains of the ramp on that side (where the railings had been removed) and thence into No. 25. Mrs. Privett, the caretaker's wife, went out that way in the afternoon at about 3 p.m. She thought it was the only possible way to take. It was much safer than any other way. She said to the workmen "How are we to get in and out?" They said to her "You can go along on the auction mart side. That is the best way". The Judge found that they advised her to use that way. So she told her visitors to go that way. In particular, her brother and his wife want that way but, on leaving, her sister-in-law nearly had a nasty accident because tine railings had been taken away on that side. Incidentally her brother put a plank down to make the way. Later on in the evening when it was dark, at about 7.30 p.m. Mrs. Riden, the Plaintiff, called to Mr. andMrs. Privett, and Mrs. Privet said nor to go that way. She got into the house safely, out when she was leaving by that way at about 10 p.m. in the dark, she fell into the basement area of No. 26 and was severely injured.

5

There was a back door to the house opening out into a lane at the back, but this was kept looked up at night, end the Judge though it would have been quite unreasonable to have expected these various people to have used it on this occasion.

6

Mrs. Riden brought this action against the contractors, Billings Ltd. and the occupiers, the ministry of Works, and the Commissioners of Customs & Excise. The Judge dismissed her claim against all the Defendants. Mrs. Riden does not appeal against his decision so far as the occupiers are concerned because she realises that they entrusted the work to independent contractors. The occupiers did not know of the danger nor ought they to have known of it, and they ought not to be held liable. The Plaintiff's advisers thus recognize, quite rightly, I think, the authority of Hasaldine v. Daw, 1941 2 King's Bench, 343; 1941 3 All England Reports, 156. I see nothing inconsistent with it in Cremin v. Thomson which was decided by the House of Lords later that year and was reported at the time in 71 Lloyds List. 1. But Mrs. Riden does appeal against the contractors, the first Defendants, Billings Ltd., on the ground that they created a dangerous state of things and are liable for the consciences.

7

The Judge found that the workmen, when they were knocking off work at 4.30 on the 17th, must have contemplated that there might have been people who would want to leave the house or to go to it, and that good workman would have provided a substituted means of access. He also found that "but for the action of the first Defendants in destroying the pre-existing normal and safe means of access and substituting noother means of access for it, this accident would never have occurred". He found that "the situation which led to all these people approaching the premises by the fourth route was caused by the first Defendants". Nevertheless, he found that the first Defendants owed no duty to the Plaintiff in respect of it. She Judge felt "a great deal of sympathy with the Plaintiff" but nevertheless "with very considerable regret" held that her claim against the contractors was not established.

8

The first question for consideration is whether the Judge was right in holding that the first Defendants were under no duty to the Plaintiff. At the outset I desire to stress that we are not concerned here with the liability of an occupier of land but with the liability of a contractor who is doing work on land. There are many authorities which show that the contractor's duty is not confined to his duty under the contract to his employer. He is under a general duty imposed by law to use reasonable care to prevent damage to persona whom he may reasonably expect to be affected by his work.

9

Let me first consider the oases which show there is such a duty. They do not spring from Donoghue v. Stevenson, 1932 Appeal Cases, 562, but start long before it end continue after it. As far back as 1848 a contractor, in order to make a, dug a trench in a private passage leading to a mews. He negligently failed to fence the opening. Whilst a cab owner was leading out his horse, it fell into the trench and was killed. The contractor was held liable for negligence; see Clayarde v. Dethick (1848) 12 Queen's Bench, 439. 1856 a building contractor placed a pile of elates on a private road leading to a lunatic asylum, and loft them unlighted at night. A visitor ran into them in the dark. The contractor was held liable for negligence; see Corby v. Hill (1858) 4 Common Bench Reports, New Series, 556. In 1918 a gas company.when putting gas into a private house, made a hole in the floor and failed to warn a visitor of the danger. They were held liable for the injury which resulted; see Kimber v. Gas Light & Coke Co., 1918 1 King's Bench, 499. Those cases were all before Donoghue v. Stevenson. She later cases are reinforced by the authority of that decision. Thus in 1941 a firm of engineers repaired a lift, but they did it so negligently that when a visitor used it next day, the lift fell and injured him. The engineers were held liable; see Haseldine v. Daw, 1941 2 King's Bench, 343. In 1954 a local authority, when making up the private way to a house, left a protruding piece of natal and a visitor fell over it and was injured. They were held liable; see Mooney v. Lanarkshire County council, 1954 session Cases. 245.

10

All the cases which I have mentioned were decisions of appellate courts. There are many cases at first Instance to the same effect. A good illustration is Brown v. Cotterill, (1934) 51 Times Law Reports, 21, where a monumental mason put up a tombstone so negligently that it fell and injured a child. Mr. Justice Lawrence (now Lord Oaksey) held the mason liable. The cases show, moreover, that the duty of ears is owed to all those whom the contractor may reasonably expect to be affected by his work, whatever the capacity in which they come, whether as Invitees or licensees or as other contractors; Clelland v. Lloyd, 1938 1 King's Bench, 272, per Mr. Justice Goddard (as he then was); Simmons v. Bovis, ...

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