Fanton v Denville

JurisdictionEngland & Wales
Date1932
CourtCourt of Appeal
[COURT OF APPEAL] FANTON v. DENVILLE. [1931. F. 892.] 1932 March 16; April 22. SCRUTTON, GREER and SLESSER L.JJ.

Master and Servant - Accident to Servant - Defective Plant - Negligence of Fellow-servant - Common Employment - Duty of Employer.

An employer does not warrant to his employees that the plant and property used in his business are safe; he only undertakes that he will use reasonable care to see that they are safe; and he fulfils this obligation by using reasonable care to appoint persons of competent care and skill as his delegates to provide and use the plant and property required for the business, he supplying them with the necessary financial means for this purpose. If the employer satisfies these conditions, he is not liable for injury caused to one of his servants by the negligence of such a delegate in the use of the plant.

Smith v. Baker [1891] A. C. 325 and Williams v. Birmingham Battery and Metal Co. [1899] 2 Q. B. 338 considered.

Judgment of Lord Cairns in Wilson v. Merry (1868) L. R. 1 H. L. (Sc.) 326 explained.

Laubach v. Co-optimists' Entertainment Syndicate (1926) 43 Times L. R. 30 approved.

Toronto Power Co. v. Paskwan [1915] A. C. 734 distinguished and, per Greer L.J., doubted: the first part of the headnote is not borne out by the judgment.

Decision of Hawke J. reversed.

APPEAL from a decision of Hawke J. in an action tried with a common jury at the Northumberland Assizes.

The plaintiff, who was an actor, was engaged by the defendant, who ran several touring companies, to appear in a play to be produced at a theatre in Gateshead. The defendant did not himself travel with the companies, his representatives at the material time being his brother, Charles Denville, who was the business manager, a stage manager, and the producer. At the Gateshead theatre the company was to produce a melodrama in which there was an execution of a murderer by hanging. The defendant had given instructions that this scene should not be represented, as many of the public did not like it. Charles Denville and the producer, however, decided to include this scene, and the plaintiff was told of this, and was offered a “double” if he did not like to undertake it. At the rehearsal, which was under the conduct of the producer, a scaffold with a drop and a mattress on which the “murderer” should fall were provided. Charles Denville, the stage manager, and the plaintiff were on the stage, and the stage manager and Charles Denville successfully went through the drop, but the plaintiff when he attempted it fell and broke his ankle. After this, extra thicknesses of baize were laid on the top of the mattress, and no further accident happened.

In respect of his accident the plaintiff sued the defendant, alleging that it was the duty of the latter to provide fit and safe machinery, plant and properties, and that it was the defendant's duty or that of his servants to take reasonable precautions to prevent danger to the plaintiff. In particular the plaintiff alleged that the defendant or his servants failed to provide a sufficient mattress to make the plaintiff's fall safe.

At the trial the jury were asked certain questions which with their answers were as follows: “(1.) Was the property as a whole reasonably fit for the purpose for which it was applied? No. (2.) If not, did the defendant know it was not safe? Yes. (3.) If not, was or were some person or persons engaged by the defendant to provide the property guilty of negligence? Yes. (4.) Was the plaintiff guilty of contributory negligence? No. (5.) If the property was dangerous, did the plaintiff know of the dangerous nature of the property? No. (6.) If the property was dangerous, did the plaintiff agree to take the risk upon himself? (Not answered.) (7.) Was the plaintiff ordered by Charles Denville or any other person authorized by the defendant to undertake the drop? Yes. (8.) Was it within Charles Denville's authority to give such order? Yes. (9.) Was the drop scene authorized by the defendant? Yes. (10.) Was the incident of trying the drop when the plaintiff sustained his injury an authorized test of the drop? Yes. (11.) Damages? 93 l. 1s. 6d.

Upon these findings Hawke J. entered judgment for the plaintiff for 93 l. 1s. 6d. with costs.

The defendant appealed.

J. Alan Bell for the appellant. There was no evidence to justify the jury's finding that the defendant knew that the apparatus was not safe; he did not even know that it was being used, having in fact given instructions that the drop scene should not be represented. If there was any negligence at all, which is not admitted, it was the negligence of the plaintiff's fellow-servants, and the doctrine of common employment precludes the plaintiff recovering against the defendant: Priestley v. FowlerF1, unless it could be shown, which was not shown in this case, that the defendant knew that Charles Denville and the producer — the plaintiff's fellow-servants — were improper persons in the sense of incompetent persons to have charge of the arrangements: Hutchinson v. York, Newcastle & Berwick Ry. Co.F2; Wigmore v. JayF3; Searle v. LindsayF4; Hedley v. Pinkney & Sons S.S. Co.F5; Cole v. De Trafford (No. 2).F6

C. B. Fenwick for the respondent. The obligation on the appellant was not only to select proper and competent persons to superintend the production of the play, but “to furnish them with adequate materials and resources for the work”: per Lord Cairns L.C. in Wilson v. MerryF7; Smith v. BakerF8; and it is obvious that the materials furnished were not adequate. Further, as between master and servant, the master's obligation to provide proper material cannot be delegated: Toronto Power Co. v. Paskwan.F9

[He also referred to Williams v. Birmingham Battery and Metal Co.F10]

Cur. adv. vult.

April 22. The following judgments were read:—

SCRUTTON L.J. This appeal from a judgment of Hawke J., after trial at the Northumberland Assizes with a common jury, raises interesting questions both of fact and law. The plaintiff, Frederick Fanton, was an actor, and the defendant, Alfred Denville, had for years run for his profit several touring companies, known as stock companies, who act various plays in various towns of the provinces, usually a week at each town. He did not himself travel with the stock companies, though he occasionally visited them. The defendant had engaged the plaintiff to act any part he was required to take in the stock company, “subject to the usual rules of the profession.” In the middle of December, 1930, this stock company was performing at a theatre in Gateshead. There was apparently an agreement between the defendant and the owners of the theatre by which the owners of the theatre provided stock scenery and stock properties; the visiting company provided special scenery and properties. In the week in question the visiting company was going to perform a very thrilling and popular melodrama representing the murder of Maria Martin of the Red Barn. There is a scene in the complete version of this play showing the execution of the murderer by hanging. This scene does not always suit the tastes of provincial audiences, and the actual hanging of the murderer is frequently omitted, the curtain going down before the actual hanging. There was evidence by Alfred Denville that he had given instructions not to play this scene, as people did not like it; this was confirmed by his producer, and the plaintiff said he knew that on previous occasions Alfred Denville had objected to the scene. The defendant had as his representatives with the touring company his brother, Charles Denville, as business manager, Starber the stage manager, and Rean the producer. There was some conflict of evidence how the execution scene came to be put in; it was said that the local theatre wanted it; anyhow, Charles Denville and Starber told the plaintiff, who was the “murderer,” it was going to be done, and offered him a “double” if he did not like to do the drop himself. There was to be a rehearsal at 1.30 P.M., which would be under the control of Rean the producer. The local theatre had put together a scaffold with a drop, and a mattress on which to drop had been provided. I think it must be taken to have been provided by the touring company, though the evidence was obscure. Before 1.30 P.M. Charles Denville, Starber, and the plaintiff were on the stage. Rean had not arrived. The scaffold was there and the mattress. Starber went through the drop first with perfect safety; he was said to have acrobatic experience. Charles Denville did the same drop, also in safety. Then the plaintiff tried; obviously it is necessary, when the platform suddenly gives way beneath the man being hanged, that he should simultaneously bend his knees to break the force of the fall. The plaintiff did not do this apparently, and broke his ankle. When the scene was performed during the week, extra thicknesses of baize were laid on the mattress, and no accident occurred.

The statement of claim alleged negligence of the defendant or his servants, and that it was the duty of the defendant to provide fit and safe machinery and plant and properties for the carrying on of the business and of the defendant or his servants to take reasonable precautions to prevent danger to the plaintiff. It further alleged that the defendant failed to provide safe properties or plant, and the defendant, or his servants Denville or Starber, failed to use a sufficient mattress to make the plaintiff's fall safe.

The jury were asked a number of questions. They found that the mattress was not reasonably safe, and in my opinion there was evidence on which they could so find. They were asked whether the defendant knew that it was not safe, and they said he did. In my opinion there was no evidence on which they could give this answer. If it is suggested that it means that Charles Denville or Starber knew that it was unsafe the jury were not asked this, and, considering that both...

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