Christmas v General Cleaning Contractors Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Earl Jowitt,Lord Oaksey,Lord Reid,Lord Tucker |
| Judgment Date | 10 December 1952 |
| Judgment citation (vLex) | [1952] UKHL J1210-1 |
| Date | 10 December 1952 |
| Court | House of Lords |
[1952] UKHL J1210-1
Earl Jowitt
Lord Oaksey
Lord Reid
Lord Tucker
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause General Cleaning Contractors Limited against Christmas, that the Committee had heard Counsel, as well on Monday the 10th, as on Tuesday the 11th and Wednesday the 12th, days of November last, upon the Petition and Appeal of General Cleaning Contractors Limited, of 68a Wilson Street, Finsbury Square, in the City of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His late Majesty's Court of Appeal of the 29th of November 1951, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of Ernest Lewis Christmas, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of His late Majesty's Court of Appeal, of the 29th day of November 1951, in part complained of in the said Appeal, be and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondent the Costs incurred by him in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
The Respondent was a window cleaner, who had been for twenty years in the employ of the Appellant Company—a company whose business it was to contract with the occupiers of buildings for the cleaning of their windows.
On the 8th December, 1948, the Appellants sent the Respondent to clean the library windows of the Caledonian Club. The system which the Appellants adopted involved the window cleaner standing on the sill outside the window to clean those panes which could not be reached from the inside. There had been some complaint that some of the windows in the club had been defective, in that the weights did not properly balance the sash, with the result that the sash occasionally moved at the slightest touch; but there had been no complaint relating to the windows of the library.
The Respondent first cleaned such part of the window as could be reached from the inside, and then, following his employers' usual practice, he got out on to the sill, which was only 6 1/4 inches wide and some 27 feet above the basement. Having finished cleaning the top sash, he pushed it up, the bottom sash then being a few inches open. It was necessary if the top sash was to be pushed right up that the bottom sash should remain open for two reasons: first, because this particular window was a self-locking window, so that, if the top sash was right up and the bottom sash right down, the window automatically locked. The result of the window becoming locked was that it was impossible to open it from the outside and any man standing on the sill would thus have found himself locked out. The second reason was even more important, because the only way in which a man standing on the sill could support himself if the top sash was up, was to grip the bottom edge of the top sash by putting his fingers round it from underneath. It follows, of course, that he could not put his fingers in this position unless the bottom sash was open, for if the bottom sash were completely closed, then the woodwork forming the bottom of the top sash and the woodwork forming the top of the bottom sash would be immediately opposite each other and there would be no space behind which he could put his fingers. I should add that the top sash was on the outside of the bottom sash.
Whilst the Respondent was standing on the sill in this position, the bottom sash for some reason closed, the woodwork at the top of the bottom sash coming down on to the fingers of the Respondent so that he lost his balance and fell, sustaining serious injuries.
The action was originally brought by the Respondent both against the present Appellants and against the club, and judgment was given in the Respondent's favour against both Defendants. The decision against the club was reversed in the Court of Appeal, and from that decision there has been no appeal to this House. It remains, therefore, only to consider the position as between the workman (the Respondent) and his employers (the Appellants).
In the Statement of Claim it was alleged that the employers were negligent in that they failed to provide hooks or safety belts or ladders, and there was a further allegation, which was not particularised, stating that they had failed to take any proper precautions for the safety of their workmen.
The Appellants in their Defence alleged that the Respondent was himself negligent in failing to equip himself with a safety belt, in taking no steps to wedge or secure the window, and in taking no steps to ascertain whether it was safe to rely on the sashes of the window for handhold. They further relied on the defence which is conveniently expressed in the maxim— volenti non fit injuria.
The evidence before the Trial Judge made it clear that it was the regular practice adopted by the Appellants' workmen to clean windows by standing on the sill and holding on to the woodwork of one of the sashes of the window; and the Respondent himself stated that his real complaint was that the window was defective in that it had not stayed in the position in which it was put. He further stated that he had had experience when working on a window of finding the bottom sash slowly running down, and added that this happened more frequently in dry weather. He stated that he had no reason to suppose that the particular window was unsafe and he asserted that the accident would not have occurred if the window had not been defective in that it was improperly balanced.
A Mr. Harrington was called on behalf of the Respondent. He was an Associate of the Royal Institute of Chartered Surveyors and stated that he had investigated accidents to window cleaners on hundreds of occasions. His evidence was that the only proper system of window cleaning was to see that the men should wear safety belts when standing on the sill. It is obvious that a safety belt is of no value unless some secure hook or staple is provided to which the safety belt can be fastened. The evidence was that it was very rare for such hooks to be affixed to buildings and the evidence did not suggest that there was any other safe method of affixing hooks.
The Trial Judge stated in the course of his judgment that a safety belt would have been useless, as there was nothing to which it could have been attached, and he proceeded as follows:—
"I find that when they" (the Appellants) "sent the Plaintiff" (the Respondent) "to clean the windows of this Club they knew that in the case of the windows in the library he would have to clean the outside of the window standing on a sill 6 1/4 inches wide 29 feet above the ground without any hand-hold except the top or bottom of one of the sashes of the window, and that he might have to move that sash in the course of cleaning the window, and I find also that they knew that window sashes do occasionally move and if they move are liable to cause the hand of the cleaner to be caught between the two sashes or to be knocked off the sash which he is holding. The conclusion that I have come to is that the system of work provided for the Plaintiff" (the Respondent) "on this occasion was an unsafe system of work and that the first Defendants" (the Appellants) "were negligent."
The Trial Judge further found that the Respondent had not himself been guilty of any contributory negligence and that he had not expressly or impliedly agreed to do the job at his own risk so as to make the maxim volenti non fit injuria applicable.
In the Court of Appeal Lord Justice Denning thought that the Appellants had failed to take proper steps to protect the Respondent.
"They should", he said, "have laid out the work more carefully. One way would have been to do the cleaning from a ladder instead of from a sill. Another way would have been to ask the householder to allow the firm to insert hooks into the brickwork so as to attach a safety belt.
It is said by the employers that these suggestions are not practicable ; and that it is the usual thing for the men to clean windows by standing on the sill. That answer does not satisfy me. If employers employ men on this dangerous work for their own profit, they must take proper steps to protect them, even if they are expensive. If they cannot afford to provide adequate safeguards, then they should not ask them to do it at all. It is not worth the risk. That seems to be the view of the London County Council, for they have made regulations forbidding a man to stand or kneel on a sill adjoining a highway unless he is hooked on by a safety belt.
At the hearing of the appeal it was suggested that the accident might have been avoided if the man had put in a chock to prevent the bottom sash coming right down as it did. This was, in effect, a suggestion of contributory negligence. This was negatived by the Judge and I agree with him. You cannot blame the man for not taking every precaution which prudence would suggest. It is only too easy to be wise after the event. He was doing the work in the way the employers expected him to do it and, if they had taken proper safeguards, the accident would not have...
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