Cook v Square D Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MUSTILL,LORD JUSTICE FARQUHARSON,LORD JUSTICE MANN |
| Judgment Date | 16 October 1991 |
| Judgment citation (vLex) | [1991] EWCA Civ J1016-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 91/0943 |
| Date | 16 October 1991 |
[1991] EWCA Civ J1016-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR S. GOLDBLATT, Q.C., SITTING AS A DEPUTY HIGH COURT JUDGE)
Royal Courts of Justice
Lord Justice Mustill
Lord Justice Mann
Lord Justice Farquharson
91/0943
MR RODERICK L. DENYER, Q.C., and MR CHRISTOPHER F. SHARP, instructed by Messrs Hextall Erskine & Co. (London Agents for Messrs Cartwrights, Bristol), appeared for the Appellant (First Defendant).
MR STEPHEN COBB, instructed by Messrs Penningtons (London Agents for Messrs Morrison & Masters, Swindon, Wilts), appeared for the Respondent (Plaintiff).
I will invite Lord Justice Farquharson to give the first judgment.
This is an appeal from a decision of Mr Simon Goldblatt, Q.C., sitting as a deputy High Court judge on 6th April 1990 when he gave judgment for the plaintiff (the present respondent) against the defendant (the appellant) in the sum of £9,037.40.
In 1982 the respondent was a field service engineer in electronics, and on 4th January of that year he took up employment with the first defendant in that capacity. The nature of the work was such that he was expected to be sent abroad frequently and his first assignment was to Uthmaniyah in Saudia Arabia where he arrived on 30th January 1982.
The premises at which he was to carry out his duties was occupied by the second defendant and the third defendant was the main contractor. There was also a number of subcontractors employed on the site. For reasons which do not directly concern us, the actions against the second and third defendants have not been proceeded with.
A specific task of the respondent was to complete the commissioning of four computer control systems and ensure that those systems were working correctly. The respondent's work was largely sedentary and carried out in a large control room where the units were installed. The floor consisted of large tiles some two and a half feet square. These tiles rested at each corner on a jack which apparently ensured the stability necessary for the operation of the computers. It was possible by the use of a special tool to lift the individual tiles to obtain access to the area beneath the floor. In that area were the wires and cables which connected with the computers. while more than one tile could be lifted at the same time it was important that too many were not lifted simultaneously as that would impair the balance of the floor. In fact the respondent had had occasion to complain about the subcontractors lifting too many tiles at once during the period he was working at the site.
By 13th March 1982 the respondent had almost completed his work, although there were still some tasks remaining. He was on that date instructing employees of the second defendant on how to fit new parts to the computers when they arrived and to test them. In taking these employees round the control room it was necessary to walk down what was in effect a corridor between two banks of cabinets. The respondent saw that since he had left work the preceding evening one of the floor tiles had been lifted, turned on its axis and placed in a position where the four corners rested on the adjoining tiles. The effect of this was that the lifted tile was above the level of the other tiles by its own depth and left open four spaces in the form of triangles. The position of the tile is demonstrated in a photograph which was taken, I think, on 13th March 1982 and which has been admitted in evidence.
The purpose of creating these openings was to obtain access to the wires beneath so that they could be taken up through one of the triangular spaces and connected with the computers. It was possible to pass between the lifted tile and the cabinets, but the space was restricted to about half the width of one of the tiles.
As the respondent and his party passed down the corridor he warned the others to "mind the hole". After demonstrating the operation of one of the units the respondent took them back again along the same route. He told one of them, Hodgkins, to go first saying, "Go on, after you. Mind the hole". As the respondent followed Hodgkins he said that his foot slipped and became jammed in the hole. He did not know what it was on the floor of the adjoining surface which caused him to slip. In the Statement of Claim it is simply alleged that the plaintiff fell through the hole, but a letter in the form of a report written by the respondent a week after the accident does refer to his slipping. In any case the learned judge accepted the respondent's account of the accident and the inconsistency can perhaps be explained by the lamentable delays there have been in bringing this case to court.
As a result of his fall the respondent suffered injury to his knee which in due course required surgery, but there is no appeal against the judge's findings on that part of the case.
By his Statement of Claim the respondent alleged that the first defendant (his employers) had been negligent on a number of grounds: firstly, there was a failure to place safety barriers or other hazard warnings round the hole; secondly, failing to take steps to warn him of the danger; thirdly, failing to cover the hole that had been made adequately, creating the hole at all, failing to take steps to ensure that he was not put at any risk, and failing to ensure that the second and third defendants were operating a safe system of work. In effect, the respondent was alleging that the first defendant was directly responsible for the omissions there listed. There is no doubt also that the respondent was aware of the hole, not least from the recital of the facts I have given so far, but the case really turns on other considerations.
There is no doubt that the hazards of which the respondent complained existed on the site. The question for the judge was whether the first defendant was responsible for them, and the learned deputy judge expressed his conclusions in this way (referring first of all to the judgment at page 18B):
"Mr. Cook's [the plaintiff's] attachment as a consultant to Aramco [that was the second defendant] was an attachment which was to last for a period of time. He was expecting and expected to be out of the United Kingdom for about two months and those would be two months for which he would be envisaged as working within the control room in question. It seems to me that where you have an engagement abroad of that length of time an employer cannot abdicate its responsibility for the safety of the employee at work by saying 'Oh, well, it is not our premises and we do not have control of the work and the operations'."
Further at page 19F the judge went on to say this:
"…the reason why this accident occurred was that the safety supervision fell down at the end of the day. It is true the hole was created probably by sub-contractors not directly by the employees of either Aramco [the second defendant] or Fleur Arabia [the third defendant], nevertheless both Aramco and I think Fleur Arabia would be well aware through the complaints that Mr. Cook had made that there was likely to be a problem with the state and the safety of the floor unless the appropriate steps were being taken.
In the circumstances which I have described, I have reached the conclusion that as between the plaintiff and the defendants it was the fault of Square D [the first defendant] that the proper steps were not taken for the safety of the plaintiff at the place and time where he had his accident."
In holding that the defendant was at fault as between the respondent and themselves, the learned judge evidently relied upon the fact that the hazard existed at all. He does not define the duty which the defendant owed to the respondent in the circumstances of this case and therefore he did not identify in what respect the defendant was held to be in breach of that duty.
Mr Denyer, who appears for the appellant, submits that the judge's finding is in conflict with a long line of authorities concerned with an employer's duty to his employee where the latter is directed to work at premises not occupied by the employer himself. The first of these cases, and perhaps the one principally relied upon, is Wilson v. Tyneside Cleaning Co. [1958] 2 Q.B. 110. The first passage upon which counsel relies appears in the judgment of Lord Justice Pearce (as he then was) at page 121 where he says this:
"Now it is true that in Wilsons & Clyde Coal Co. Ltd. v. English [1938] A.C. 57 Lord Wright divided up the duty of a master into three main headings, for convenience of definition or argument; but all three are ultimately only manifestations of the same duty of the master to take reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk. Whether the servant is working on the premises of the master or those of a stranger, that duty is still, as it seems to me, the same; but as a matter of common sense its performance and discharge will probably be vastly different in the two cases. The master's own premises are under his control: if they are dangerously in need of repair he can and must rectify the fault at once if he is to escape the censure of negligence. But if a master sends his plumber to mend a leak in a respectable private house, no one could hold him negligent for not visiting the house himself to see if the carpet in the hall creates a trap. Between these extremes are countless possible examples in which the court may have to...
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