Donaghey v P. O'Brien & Company
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davies,Lord Justice Willmer |
| Judgment Date | 25 May 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J0525-5 |
| Docket Number | 1961. D. No. 2161 |
| Court | Court of Appeal |
| Date | 25 May 1966 |
[1966] EWCA Civ J0525-5
Lord Justice Willmer
Lord Justice Davies and
Lord Justice Russell
In The Supreme Court of Judicature
Court of Appeal
Appeal from Order of James J. at Bedford Assizes dated 3rd Feb. 1966
Mr John May, Q.C., and Mr F. Maurice Drake (instructed by Mr Denis Hayes, Agent for Messrs John Q. Clayton & Co., Iuton) appeared on behalf of the Appellants (Seoond Defendants).
Br R. E. Geoffrey Howe, Q.C., and Mr Michael Walker (Instructed by Messrs T. D. Jones & Co., Agents for Messrs Tearle & Herbert Jones, Luton) appeared on behalf of the Respondent (Plaintiff).
Lord Justice Russell, who is unfortunately not able to be present today, authorises me to say that he agrees with the judgment I am abought to deliver.
This is an appeal by the second defendants against a judgment of Mr Justice James given at Bedford Assizes on the 3rd February 1966 in an action brought by the plaintiff against two defendants claiming damages for personal Injuries sustained in the course of his work. The learned judge found both defendants at fault, but he also found that the plaintiff himself was at fault to the extent of 25 per cent. He assessed the plaintiff's damages at £18,497.88.2d. and gave judgment against both defendantsfor three-quarters of that sum, namely, £13,873. 1s.2d. He also held that the second defendants were entitled to a 100 per cent Indemnity against the first defendants.
On this appeal we have been concerned only with the liability of the second defendants. The first defendants are said to be without financial means, and although they delivered a defence, they took no part in the trial of the action, but allowed the claim against them to go by default. Nor have they taken any part in this appeal.
The contentions put forward On behalf of the second defendants are (1) that the learned judge was wrong in finding them responsible in any degree for the plaintiff's injuries, and (2) in the alternative that the plaintiff's share of the responsibility ought to have been assessed at something more than 25 per cent. The plaintiff filed a cross-notice contending that the second defendants should have been found to be wholly at fault, but this contention was abandoned during the course of the argument, and it is not now in issue that the plaintiff was at fault in some degree. By the cross-notice it was also sought to support the learned judge's conclusion on grounds other than those on which he based his judgment. No question as to the quantum of the damages assessed by the learned judge has been raised on either side.
The plaintiff's claim arose out of an accident which occurred on the 3rd February 1962 in the course of the construction of a hangar at Luton Airport. The plaintiff was a steel erector employed by the first defendants, who were sub-contractors to the second defendants, being themselves sub-contractors to the main contractors. The work which the first defendants were engaged to carry out was that of laying asbestos sheets on the roof of the hangar. The roof of the hangar consisted of a number of bays, the height to the apex of each bay being 62 foot from the ground, and that to the gutters between the bays about 50 feet. The asbestos sheets were laid transversely on angle-iron purlins which ran longitudinally along the bays. The slops of the roof in each bay from apez to gutter was said to be 22 degrees.
The plaintiff was working in company with a man called Crean under the supervision of the first defendants' foreman, Boyle. The second defendants were not immediately concerned with the laying of the asbestos sheets, for which they had contracted with the first defendants; but they had a foreman, Gregory, in charge of their own men on the site, and he was exercising some degree of general supervision over the progress of the work as a whole. In particular it was his responsibility to arrange for the provision of safety appliances, where these were required, both for the second defendants' own men and for their various sub-contractors.
On the day of the accident the plaintiff and Crean were engaged in relaying certain asbestos sheets which had been displaced by a gale. In the course of this work the foreman, Boyle, observed that one of these sheets had been relald out of line, and he instructed the men to adjust it. Having done this, the plaintiff and Crean were standing on the outside of the roof endeavouring to shift the sheet which was out of place. They had to stand on opposite sides of the sheet. Crean was able to stand on one of the asbestos sheets in the next adjacent tier. But on the plaintiff's side there was no sheeting, and he had to stand with his right foot on the sheet next below in the same tier, and with his left foot on one of the longitudinal purlins. Standing thus, the plaintiff and Crean proceeded to tug at the sheet which was out of place. It suddenly came free, with the result that the plaintiff over-balanced backwards and fell through the aperture where there was no sheeting to the ground some fifty or sixty feet below. In consequence the plaintiff sustained serious injuries which have not been the subject of any controversy in this court.
The plaintiff alleged that the accident was due to the failure of both defendants to provide any protective appliances to prevent his fall. He based his claim against both defendants on negligence at common law and on breach of statutory duty. As against the first defendants, his own employers, he alleged breach of several of the Building (Safety, Health and Welfare) Regulations 1948, but asagainst the second defendants he alleged only breach of Regulation 31 of those Regulations. His case was that roof ladders or crawling boards should have been provided so as to enable the work on the outside of the roof to be carried on in safety.
The second defendants alleged, and the learned judge found, that a suitable supply of crawling boards had been provided by then, and that these were readily available on the floor of the hangar. The plaintiff and Crean, however, did not see fit to use them, and the foreman, Boyle, who was watching their operations, did not inalst on their doing so. It is common ground that no crawling boards or other safety appliances were in fact used. Mr Rimmer, an architect and surveyor called on behalf of the plaintiff, gave evidence, which the judge accepted, that having regard to the pitch of the roof, the fragile nature of the materials and the height above the ground, some safety equipment in the nature of roof ladders or crawling boards ought to have been provided and used. The learned judge found, however, that it would be the workmen's job (in this case the plaintiff's) to place such equipment in the position where it was required for use, and that he could not expect anyone else to do it for him.
In these circumstances the learned judge had no difficulty in finding that the first defendants were guilty of negligence at common law. He expressed the view that there was the grossest lack of care on the part of Boyle, the foreman, in allowing work to be done on the roof without any roof ladder or crawling board. He also found the first defendants to be in breach of their statutory duty under Regulations 24 and 31 (1). As to the second defendants, the learned judge acquitted them of the charge of negligence at common law. They were not the employers of the plaintiff, and accordingly were not under the duty owed by a master to his servant. Having employed a competent firm, experienced in roofing work, and having themselves provided an adequate supply of safety appliances, they were, in the judge's view, justified in leaving the details of the safety of their subcontractors' men to the sub-contractors' own organisation, and owed mo further duty at common law. This conclusion has not been challenged befogs us.
The learned Judge, however, while acquitting the second defendants and their foreman, Gregory, of any moral blame, held that they were in breach, squally with the first defendants, of their statutory duty under Regulation 31 (1). Following the decision of this court in Mulready v. J.H. & W. Bell Limited (1963 & Queen's Bench Division, page 117) he held that the second defendants, as sub-contractors responsible for the construction of the roof, were under a duty to comply with that Regulation: and that they could not avoid responsibility for the performance of that duty by delegating the work to their own sub-contractors. Since, in the learned judge's view, the statutory duty was not in fact performed, the second defendants, equally with the first defendants, must accept responsibility for its non-performance, further charge against the second defendants of breach of Regulation 31 (3) was dismissed by the learned judge, who expressed the view that this paragraph of the Regulation had 10 application to the circumstances of the present case.
Having found the second defendants guilty of a breach of their statutory duty, the judge went on to find that the plaintiff, having failed to use the safety appliances which were in fact provided, was himself in breach of his duty under Regulation 4 to co-operate in carrying out the requirements of Regulation 31 (1). He considered, but rejected, a contention put forward on behalf of the second defendants, based on Ginty v. Belmont Building Supplies Limited (1959 1 All England Law Reports, page 414) that the plaintiff's breach in this respect was co-terminous and co-incident with the only breach found against the second defendants, and was therefore to be regarded as the sole cause of the accident. The learned judge declined to accept this contention having regard to the presence of the foreman, Boyle, and to the...
To continue reading
Request your trial
- Morello Sdn Bhd v Jaques (International) Sdn Bhd
- Sheikh v Chief Constable of Greater Manchester Police
-
Donaghey v Boulton & Paul Ltd
... ... 2 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 ... 3 At the ... ...
-
McGovern v British Steel Corporation
...ladders, duck ladders or crawling boards, which shall be securely supported, shall be provided and used…" 33 The Court of Appeal, [1966] 1 W.L.R. 1170, had held that the regulations did not apply to the accident which had happened. Lord Justice Willmer said ( [1966] 1 W.L.R. at page 1182):......