Broom v Morgan

JurisdictionEngland & Wales
JudgeLORD JUSTICE SINGLETON,LORD JUSTICE DENNING,LORD JUSTICE HODSON
Judgment Date06 March 1953
Judgment citation (vLex)[1953] EWCA Civ J0306-3
Docket Number1951 B. No. 3707
CourtCourt of Appeal
Date06 March 1953
Broom
and
Morgan

[1953] EWCA Civ J0306-3

Before:

Lord Justice Singleton

Lord Justice Denning and

Lord Justice Hodson

1951 B. No. 3707

In The Supreme Court of Judicature

Court of Appeal

Counsel for the Appellant: MR J. THOMPSON, instructed by Messrs Gascoin & Co.

Counsel for the Respondent: MR A.P. MARHALL, Q.C., and MR F.G. PATERSON, instructed by Messrs R.I. Lewis & Co.

LORD JUSTICE SINGLETON
1

Mrs Broom, the Plaintiff, brought an action against Mrs Morgan, the Defendant, who was the licensee of a pubic-house known as the "Bird in Hand" in West End Lane, London, N.W.6. Mrs Morgan, the Defendant, made an agreement which is dated the 2nd January, 1950, with Mr Broom and with Mrs Broom, and under that agreement the Brooms, husband and wife, were to be employed, and were employed, as Manager and as a helper in the licensed house.

2

That second recital in the agreement is: "Whereas …it is intended that the Manager shall be appointed the Resident Manager of the said 'Bird in Hand' Beer and wine House for and on behalf of the Employer for a period of three calendar months from the twentieth January one thousand nine hundred and fifty."

3

The agreement sets out the employment of husband and wife. They were paid £7 a week between them, and the evidence shows that the husband paid £3 of that to his wife, the Plaintiff in the action. The licensee lives in the country at Grayshot.

4

The Brooms had only been about a fortnight in the licensed house when Mrs Broom met with an accident. I take a passage from the judgment of the Lord Chief Justice: — "To get behind the bar counter from the other part of the premises there was a low door with a flap over it, and immediately inside that door there was a trap door in the floor which covered a shaft or space up which a life could rise from the cellar, this lift being used for the purpose of bringing up bottled beer and so forth from the cellar to the bar. On the 4th February, just a fortnight after the plaintiff and her husband entered on their employment, one morning I think between 10 0'clock and 10.30, she had occasion to gobehind the bar and passed through the small door for that purpose. The trap door had been left open. The husband seems to have been somewhere near, but no warning was given to the plaintiff, and no step had been taken to protect the lift shaft. She fell down it and sustained injuries to her right leg and left ankle and a severe shock."

5

Mrs Brook brought an action against the Defendant, the licensee of the public-house, who was her employer and the employer of her husband, and in that action she claimed damages which she said occurred through the negligence of the Defendant, her servant or agent, and she set out how the accident happened, and claimed that the trap-door was left open through negligence on the part of the Defendant's servant or agent. She did not mention the servant or agent was her husband, and there followed an application for Particulars of the servant or agent, from which it appears, and it is common ground, that the person who was said to be negligent was her husband. The Defendant, by her Defence, denied negligence. She pleaded in Paragraph 5 that if "the plaintiff fell through the said trap door such fall was occasioned not by any of the alleged negligence but wholly or in part by the negligence of the Plaintiff herself in failing to keep a proper look out or to observe that the said trap door was open or to walk with reasonable care or attention or to avoid falling through the said trap door of the existence of which she well knew and when she also well knew or should have known that it probably would be and could have seen that it was open."

6

The claim of the Plaintiff was heard before the Lord Chief Justice on the 12th November, 1952, and hereserved his judgment. On the 17th November he gave judgment in favour of the Plaintiff.

7

At the end of the evidence given on behalf of the Plaintiff Mr Thompson, who appeared for the Defendant, was anxious that he should hear the submission of the plaintiff on liability before he made his submission but the Lord Chief Justice pointed out to him that at it was open to him, if he wished to do so, to make any submission on the law, and in the course of discussion the Lord Chief Justice said: "There is a prima facieevidence of negligence", and Mr Thompson said: "I am not submitting no case, but I am calling no evidence." The question of whether or not there was a breach of duty on the pay of the husband in leaving the trap-door open was not further discussed. The whole of the argument thereafter was on the question as to whether or not, in the circumstances, the Defendant was responsible in damages as the person who was said to have been negligent by the husband of the Plaintiff. I mention that because Mr Thompson on this appeal raised a question as to whether there was any negligence or not. I do not think that point is really open to him in view of that which took place before the Lord Chief Justice It was agreed that there was some evidence of negligence; the point was not gone into further, and the only matter to which the Lord Chief Justice's attention was directed was the position which arose from the fact that the party said to have been negligent was the husband of the Plaintiff, and really that has been the matter argued in this Court, for Mr Thompson, when we pointed out to him what had happened in the Court below, did not really think it was open to him to say there was not some failure of case or breach of duty on the part of the Manager, and did not contest that questionfurther. I do not think he had any ground for so doing, I confess.

8

Now I come to the important point. The position with regard to an employer was stated by the Lord Chief Justice in a sentence or two in the course of his judgment from a passage in the opinion of Lord Cranworth in the first of the Bartonshill Coal Company case s, Bartonshill Coal Company v. Reid, reported in Volume 3 of Macqueen's Reports at page 266, and the passage which he judgment of the Lord Chancellor, Lord Chelmsford, in the second case; that is Bartonshill Coal Company v. McQuire in the same volume, and the passage which I take is on page 306. Lord Chelmsford said: "It has long been the established law of this country that a master is liable, to third persons for any injury or damage done through the negligence or unskilfulness of a servant acting in his master's employ. The reason of this is, that every act which is done by a servant in the course of his duty is regarded as done by his master's orders, and consequently is the same as if it were the master's own act, according to the maxim, Qui facit per alium, facit per se". It is clear that when the Manager, the husband of the Plaintiff, was in the course of his duty getting bottled beer from downstairs through the trapdoor he was acting in the course of his duty; in doing that he left the trapdoor, open without warning anyone as to the danger which was thereby created.

9

It is said that that was negligence on his part, and that he was negligent vis-a-vis the plaintiff, his wife. There is no liability fox negligence unless there is on the particular case a legal duty to take care. If there is a duty to take care, or where there is aduty to take care, reasonable care must be taken to avoid acts or omissions which it can reasonably foreseen would be likely to injure persons who are reasonably likely to be affected. The persons reasonably likely to be affected by an act such as that which is complained of in this case are the persons employed upon the premises, and who might be likely to go into the place at which a danger was created. There was one man employed, and there was the Plaintiff herself, who was also employed by the Defendant. It seems to me that in those circumstances the Manager of the licensed house, who left the trap door open, can be said to have failed to use reasonable care to avoid an act which he could reasonably have foreseen would be likely to injure a person working on those premises. His wife was one of those persons.

10

The Lord Chief Justice, in giving judgment for the Plaintiff, followed a decision of Mr Justice Charles in the case of Smith v. Moss, reported in 1940 1 King's Bench Division at page 424, and he cited a judgment to the like effect of Chief Justice Cardozo in the New York Court of Appeals, the case of Schubert v. Schubert Wagon Company, reported in Volume 149 of the New York Reports at page 253.

11

The Defendants appeals against the judgment, and Mr Thompson's submission on her behalf can be expressed quite shortly. It is that a husband cannot be negligent vis-a-vishis wife; and he added in a case of vicarious responsibility an action can only succeed against the employer if an action would have succeeded against the employee who was negligent. The liability, said he, of employers and negligent employees was a joint and several liability, and unless an action against the employee would succeed, an action against the employer in respectof that employee's negligence must fail.

12

I think that expresses the submission which Mr Thompson made, and it was supported by citations from a number of authorities, though, strange to say, the precise position which arose in this case does not appear to have been before the Court of Appeal before; the only reported case in this country, indeed, was the decision of Mr Justice Charles which I have mentioned.

13

It seems to me that, in approaching this subject, one must look first to see what the duty of the husband, the Manager, to his wife was. The husband, the Manager, owed a duty to the other employees who used the premises. His wife was one of them. Mr Thompson submitted that he was under no legal duty to his wife at all, and was under no duty to take care. I find that difficult to follow. At common law a husband was under a duty to maintain his...

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