Boyton v Willment Brothers Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE BUCKLEY |
| Judgment Date | 06 July 1971 |
| Judgment citation (vLex) | [1971] EWCA Civ J0706-2 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 July 1971 |
[1971] EWCA Civ J0706-2
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: Mr. Justice Paull - London)
Lord Justice Davies
Lord Justice Edmund Davies and
Lord Justice Buckley
Mr. John Stocker, Q. C. and Mr. Michael Turner (instructed by Messrs. Allen & Son) appeared on behalf of the Appellant (Plaintiff).
Mr. Charles Whitby, Q. C. and Mr. John Skinner (instructed by Messrs. Berrymans) appeared on behalf of the Respondents (Defendants).
I have asked Lord Justice Buckley to deliver the first judgment in this case.
This is an appeal from a judgment of Mr. Justice Paull of the 9th November, 1970, by which he dismissed the plaintiff's action. The plaintiff was claiming damages for personal injuries sustained by him as a result of an accident which occurred in the course of his employment. The plaintiff's what is known as a top man or mattock man, employed in the demolition trade. His business is to take part in the demolition of buildings, and he was so employed on the relevant date working upon the demolition of a warehouse in Bermondsey which was being demolished by hand. Where that system of demolition is adopted, the building is taken down in the reverse order to that in which it was erected. First of all the roof is taken off, then the roof joists and so on, then the walls are taken down to the floor of the top storey, the material is cleared away, the floor of the top storey is removed, and then the walls are taken down to the floor of the next storey; and the same process goes on floor by floor as the building is demolished down to ground level. It is not known precisely how high this warehouse upon which the plaintiff was working originally was, but at the time the accident occurred it had been demolished down to the fourth floor, and the work that was going was work carried on at the fourth floor level.
The practice adopted for clearing the rubbish at each floor level is this. The walls, as I have said, are taken down to the floor level of the storey which is being worked upon. Some of the debris falls outside the walls in the course of the demolition falls outside the walls in the course of the demolition and has to be cleared away after the particular storey has been demolished to floor level. To facilitate this, it is thepractice to take up floor-boards, exposing the joists that support the floor and leaving a void where the boards have been removed, spanned by the joists but otherwise empty, through which the bricks, rubble and so forth can be discharged, and I understand that in fact this is done through the whole height of the building so that when, in a higher storey, rubbish is shot between the joists of the floor it can fall clear down to the ground level. The rubbish that has to be cleared - bricks, rubble and so forth - is disposed of partly over the side of the building and partly through the opening in the floor. The boards that are removed are so selected that passageways or alleyways are left intact of about 4 ft. in width to enable the men to carry out their work and to move about for that purpose. Between these passageways of floor-boards there are spaces of 6 ft. or so before the next passageway.
It is not altogether clear in this case whether the wall had been demolished to floor level round the whole of the building, but it had been demolished to floor level at any rate at the relevant part. It appears from the evidence that the men had been working on this floor of the building for something like two days when the accident occurred. It may have been a day and a half; it may have been a little more.
The plaintiff and another man who was one of the gang of which the plaintiff was a member were engaged in jettisoning over the side of the building a length of steel girder which had formed part of a derrick or crane of some kind which had been affixed to the building, no doubt for the purpose of hauling up goods to the upper floors of the building or lowering goods from the upper floors to the ground. This was a length of steel girder approximately 4 ft. 6 ins. long by 9 ins. by 4½ ins., and weighing about 1 cwt. The two men, the plaintiff and his colleague, werepushing or carrying this length of steel along one of these passageways of floor-boards which I have mentioned, approximately 4 ft. wide, to the outer wall of the building, with the intention apparently of standing it up on edge near the outer wall or upon the outer wall of the building and then toppling it over so that it would fall outside the building to the ground.
In the course of doing this, in some way which is now impossible to discover, for neither of them remembers the circumstances of the accident and there was no other witness of it, the two men fell over the edge of the building to the ground, and the plaintiff was injured. The other man was injured also, but we are not concerned with him. They had not in fact succeeded in getting the length of steel over the edge of the building, for it was found suspended with its end projecting over the edge of the building but still resting on the top of the wall.
In these circumstances, questions arise as to whether the defendants, who were the plaintiff's employers, are guilty of default in complying with the requirements of the Construction (Working Places) Regulations, or, if not, whether they are liable at common law to the plaintiff for the damage that he suffered.
The regulations which are relevant to be considered are regulations 28, 33, 34 and 38. Regulation 28, which deals with "Guard-rails and toe-boards at working platforms and places", is, 30 far as I think it is necessary to read it, in the following terms. Paragraph (1): "Every side of a working platform or working place, being a side thereof from which a person is liable to fall a distance of more than 6 feet 6 inches, shall, subject to paragraphs (3) to (6) and except as provided in paragraph (7) of this regulation, be provided (a) with a suitable guard-rail or guard-rails of adequate strength to a height of between 3 feet and 3 feet 9 inches above the platform or place and above anyraised standing place on the platform, and with toe-boards or other barriers up to a sufficient height which shall in no case be less than 6 inches. Such guard-rails and toe-boards or other barriers shall be so placed as to prevent so far as possible the fall of persons, materials and articles from such platform or place". I do not think there is anything relevant in the other paragraphs of that regulation which are referred to in paragraph (1) that I need read.
Regulation 33 paragraph (1): "Paragraphs (1) to (3) of this regulation apply to every opening, corner, break or edge being an opening, corner, break or edge which any person employed isliable to approach or near or across which any person is liable to pass - (a) in or of a roof (other than a roof to which Regulation 35 applies), floor, wall or other similar part either of a building or of any other structure whether the roof, floor, wall or other similar part of the building or of the other structure is complete or only partly complete or is in course of construction, maintenance, repair or demolition; or (b) in or of a working platform, gangway or run".
Paragraph (2): "Subject to regulation 34, in the case of any such opening, corner, break or edge through or from which any person is liable to fall a distance of more than 6 feet 6 inches or to fall into any liquid or material so as to involve risk of drowning or serious injury there shall be provided either (a) a suitable guard-rail….": and then similar requirements are imposed to those under regulation 28 with regard to guard-rails and toe-boards and other barriers; "or (b) a covering so constructed as to prevent the fall of persons, materials and articles; any such covering shall be clearly and boldly marked to show its pur-H pose or be securely fixed in position".
I can now go to regulation 34, paragraph (1) of which providesthat "Guard-rails, toe-boards, barriers and coverings required by regulation 33 may be removed or remain unerected" in certain circumstances; and paragraph (2) of which is in the following terms: "Without prejudice to regulation 28, regulation 33 shall not apply to any opening, corner, break or edge created in the course of demolition operations to which Pare X of the Construction (General Provisions) Regulations, 1961, applies, or to any opening, corner, break or edge created in the course of any other demolition operation, if in the course of such last-mentioned demolition operation the opening, corner, break or edge is not left unattended".
Finally, regulation 38, paragraph (1): "Where by reason of the special nature or circumstances of any part of the work or of the access thereto or the egress therefrom it is impracticable to comply with all or any of the requirements of regulations" - and then a number are mentioned, including regulations 28, 33 and 35 - "so far as they relate to the falls of persons, the requirements of those provisions shall be complied with so far as practicable and in any such case, except as provided in paragraphs (2) and (3) of this regulation, there shall in addition where practicable be provided and so erected and kept in such positions as to be effective to protect persons carrying on that part of the work or using the said access or egress suitable safety nets or safety sheets of such a design and so constructed and installed to prevent so far as practicable injury to persons falling on to them: Provided that such safety nets or safety sheets may be removed or remain unerected for the time and to the extent necessary for the access of persons or the movement of materials or other purposes of the work, but shall be replaced or erected as soon as...
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