Donaghey v Boulton & Paul Ltd

JurisdictionUK Non-devolved
JudgeViscount Dilhorne,Lord Reid,Lord Hodson,Lord Guest,Lord Pearson
Judgment Date20 June 1967
Judgment citation (vLex)[1967] UKHL J0620-2
Date20 June 1967
CourtHouse of Lords

[1967] UKHL J0620-2

House of Lords

Viscount Dilhorne

Lord Reid

Lord Hodson

Lord Guest

Lord Pearson

Donaghey (A.P.)
Boulton & Paul Limited

Upon Report from the Appellate Committee, to whom was referred the Cause Donaghey (A.P.) against Boulton & Paul Limited, that the Committee had heard Counsel, as well on Monday the 1st, as on Tuesday the 2d, Wednesday the 3d and Thursday the 4th, days of May last, upon the Petition and Appeal of Eddie Donaghey (Assisted Person), of 33 Meriam Park, Buncrana, County Donegal, Ireland, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 25th of May 1966, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner 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 Case of Boulton & Paul Limited, 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 Her Majesty's Court of Appeal, of the 25th day of May 1966, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice James, of the 3d day of February 1966, thereby Varied, be, and the same is hereby, Restored: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Court of Appeal, and also the Costs incurred by him in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is further Ordered, That the Costs incurred by the said Appellant in the Court of Appeal and also the Costs incurred by him in respect of the said Appeal to this House, be taxed in accordance with the provisions of the Third Schedule to the Legal Aid and Advice Act 1949, as amended by the Legal Aid Act 1960, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

Viscount Dilhorne

My Lords,


On the 3rd February, 1962, the Appellant, who was in the employ of a firm called P. O'Brien & Co., fell from the roof of an aircraft hangar then in course of construction and as a result suffered serious injuries.


P. O'Brien & Co. were employed by the Respondents, who were themselves sub-contractors of another company, to do work on the roof of the hangar, and one of the tasks on which they were engaged was covering the roof with asbestos sheeting.


At the time of the accident the Appellant was engaged with a man called Crean in removing some of the asbestos sheets which had been damaged as a result of gales and in replacing them with others. The roof of the hangar was so constructed that the ridge of the sloping roof did not go along the length of the hangar but with the ridges running across the hangar. The apex of each ridge was 62 feet from the ground. Except at the ends of the hangar the slope of the roof was only 22 degrees. The slope from the ridge of the roof finished at a gutter, 50 feet from the ground, and from that gutter the roof sloped upwards to the next ridge. At the time of the accident the Appellant and Crean were working on a part of the roof where the slope was 22 degrees.


They had removed the damaged sheets and relaid the lowest tier next to the gutter when P. O'Brien's foreman noticed that one of the relaid sheets was out of place. He thereupon told the Appellant and Crean to put it right. To do so Crean stood on the asbestos roof covering to one side of the sheet that had to be moved. The Appellant stood on the other side of that sheet with one foot on an angle iron purlin which formed part of the roof structure uncovered as a result of their removal of the sheets, and with his other foot on the asbestos sheeting. Behind him was an open space created by their removal of the asbestos sheets. They had some difficulty in moving the sheet which was out of place and, when it came free, the Appellant lost his balance and fell through the open space in the roof to the ground.


He brought an action against his employers and against the Respondents alleging negligence and breach of statutory duty, alleging failure to comply with the Building (Safety, Health and Welfare) Regulations, 1948 ( S.I. 1948 No. 1145). P. O'Brien & Co. entered an appearance, filed a defence but did not appear at the trial. It was said that they were without funds and not insured against claims such as that brought by the Appellant.


The action was tried by James, J., at Bedford Assizes in February, 1966. He held that P. O'Brien & Co. were guilty of negligence and of breach of statutory duty and that no case of negligence was established against the Respondents but that they, too, were guilty of a breach of statutory duty. He assessed the damages at £18,497 8s. 2d. and, holding that the Appellant was twenty five percent to blame and the Respondents and P. O'Brien & Co seventy five percent to blame, he gave judgment against them for £13,873 1s. 1d.


From that judgment the Respondents appealed to the Court of Appeal. If P. O'Brien & Co. are without funds and were not insured, the Appellant will only recover compensation for the serious injuries he received if he succeeds in this appeal. It is perhaps a matter which should receive consideration by the Legislature whether employers who employ men to do work of the character of that on which the Appellant was engaged should not be required to insure against claims of the nature brought by the Appellant, for in the absence of insurance an injured workman may not get the compensation to which he is entitled.


The Appellant in his Statement of Claim alleged breach of a number of Regulations but in this appeal it is necessary to refer in detail only to Regulation 31. That is headed "Roof Work". It contains a number of paragraphs. Regulation 31 (1), which James, J. held had not been complied with, reads as follows:

"Where work is done on the sloping surface of a roof and, taking into account the pitch, the nature of the surface, and the state of the weather, a person employed is likely to slip down or off the roof, then unless he has adequate handhold or foothold or is not liable to fall a distance of more than 6 feet 6 inches from the edge of the roof, suitable precautions shall be taken to prevent him so falling."


The Appellant also alleged a breach of Regulation 31 (3), which reads as follows:

"Where work is being done on or near roofs or ceilings covered with fragile materials through which a person is liable to fall a distance of more than 10 feet—

( a) where workmen have to pass over or work above such fragile materials, suitable and sufficient ladders, duck ladders or crawling boards, which shall be securely supported, shall be provided and used:

( b) …"


James, J. in his judgment said that he did not think that Regulation 31 (3) had "got anything to do with this accident, and in so far as it is relied on the Plaintiff fails in respect of that". He did not find that there had been a breach of any of the other Regulations.


Relying on Mulready v. J. H. & W. Bell Ltd. [1953] 2 Q.B. 117, he held that the Respondents did not discharge themselves from the duty of complying with Regulation 31 (1) by employing P. O'Brien & Co. and that the Respondents' breach of duty was not coincidental with the Appellant's breach of duty so that the Appellant was not debarred by the decision in Ginty v. Belmont Building Supplies Ltd. [1959] 1 All E.R. 414 from recovering damages.


The Respondents appealed to the Court of Appeal and there sought to contend that Regulation 31 (1) did not apply. This had not been argued before James, J., thought his contention had not been expressly abandoned. The Court of Appeal allowed this contention to be put forward and it is now submitted that they were wrong to do so.


Although in some cases the application of Regulation 31 (1) may depend on evidence as to the nature of the surface, the state of the weather and the absence of adequate handholds or footholds, in other cases it will be clear without any such evidence that the Regulation does not apply.


In my opinion, this case is within the latter category. If it came within the former, then the Court of Appeal would have been wrong to allow this contention to be put forward. There is no dispute about how the Appellant came to fall from the roof. He did not slip on the roof and fall down it. The pitch of the roof was very slight. Even if he had slipped on the roof and fallen down it, he would have fallen into the gutter at the bottom and would not have fallen to the ground. Regulation 31 (1) is, in my opinion, directed to ensure that proper precautions are taken to prevent a person working on a sloping roof who is likely to slip down or off the roof from falling from the edge of the roof where that edge is more than 6 feet 6 inches from the ground. It was contended on behalf of the Appellant that in this Regulation the edge of the roof did not mean the bottom edge and that it sufficed if the Appellant had fallen from any edge of the roof and so it was sufficient if he fell from the edge of the open space through which he went and that was more than that distance from the ground. I am not able to agree with this contention. It seems to me quite contrary to the intent and meaning of the Regulation. On this roof, with its very slight...

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