Gray and Wife against Pullen and Hubble
| Jurisdiction | England & Wales |
| Judgment Date | 29 November 1864 |
| Date | 29 November 1864 |
| Court | Exchequer |
English Reports Citation: 122 E.R. 1091
IN THE EXCHEQUER CHAMBER.
S. C. 34 L. J. Q. B. 265; 11 L. T. 569; 13 W. R. 257. Questioned, Wilson v. Merry, 1868, L. R. 1 H. L. (Se.) 340. Considered and applied, Bower v. Peate, 1876, 1 Q. B. D. 327; Smith v. West Derby Local Board, 1878, 3 C. P. D. 428. Not applied, Barham v. Ipswich Dock Commissioners, 1885, 54 L. T. 26. Applied, Hardaker v. Idle Council, [1896] 1 Q. B. 340. Discussed and applied, Groves v. Wimborne, [1898] 2 Q. B. 412.
[970] in the exchequer chamber. gray and wife against pullen and hubble. Tuesday, November 29th, 1864. -Statutory obligation. Contractor. Action. Metropolis Local Management Act, 18 & 19 Viet. c. 120, ss. 77, 110, 111.-1. Where a statutory obligation is imposed on a person, he is liable for any injury that arises to others in consequence of its having been negligently performed, and this whether it were performed by himself or by a contractor employed by him.-2. A. was empowered under The Metropolis Local Management Act, 18 & 19 Viet. c. 120, sa. 77, 110, 111, to make a drain from his premises to a sewer, by cutting a trench across a highway, and filling it up after the drain should be completed. For this purpose he employed a contractor, by whose negligence it was filled up improperly, in consequence of which damage ensued to B.: Held by this Court, reversing the decision of the Queen's Bench, that A. was responsible in an action by B. [S. C. 34 L. J. Q. B. 265; 11 L. T. 569 ; 13 W. E. 257. Questioned, Wilson v. Merry, 1868, L. R. 1 H. L. (So.) 340. Considered and applied, Bower v. Peate, 1876, 1 Q. B. D. 327 ; Smith v. West Derby Local Board, 1878, 3 C. P. D. 428. Not applied, Sarham v. Ipsmch Dock Commissioners, 1885, 54 L. T. 26. Applied, Hardaker v. Idle Council, Q896] 1 Q. B. 340. Discussed and applied, Groves v. Wimbarne, [18981 2 Q. B. 412.] The first count of the declaration alleged that the defendants dug and caused to be dug a deep hole and trench in, along and across a certain public and common highway, and thereby greatly obstructed the same and rendered it dangerous to persons lawfully using it, by means of which premises and of the mere carelessness and wrongful and improper conduct of the defendants in that behalf, the plaintiff Maria, being the wife of James Gray, who was then lawfully walking in and along the highway, fell into the hole and trench, and was greatly hurt, bruised and wounded, and became and was sick &o. for a long time &c., and had become greatly and permanently injured in health, and the plaintiff James had been deprived of her comfort &c., and been put to expance &c., and the plaintiffs were otherwise injured. 1092 GRAY V. PULLEN 5 B. & S. 971. Second count. After the passing and coming into force of The Metropolis Management Act, 1855, the [971] defendants being authorized to break up the pavement and open the surface of a street being a common highway within the Metropolis as defined by that Act for a lawful cause, (to wit) for making a drain, did break up the pavement and open the surface for the said cause, yet the defendants did not with due diligence cause the ground to be filled up, and the pavement to be reinstated, and the surface to be made good, in a proper and substantial manner, and did not in the meantime fence or guard the same or affix or maintain lights during the night near the places where the ground was open, so as to prevent any accident, but therein wholly failed and made default, by means of which premises and of the mere carelessness, negligence, wrongful and improper conduct of the defendants in that behalf the said Maria, being the wife of the said James, whilst lawfully passing along the said highway whilst the said surface was open fell into the opening and was injured, and the plaintiffs respectively sustained damage as in the first count set forth, &c. Fleas by the defendant Pullen. First. Not guilty. Second. As to so much of the first count as charges that the defendants dug and caused to be dug a deep hole and trench in, along and across a certain public and common highway, and thereby greatly obatructed the same and rendered it dangerous to persons lawfully using it, and thereby causing the damages therein complained of : that the highway was situate in the Greenwich district mentioned in Schedule B. of the Act of Parliament for the better local management of the Metropolis (18th and 19th Victoria, c. 120), and the [972] defendant was possessed of a certain house situate within the district, and was desirous of making a drain from that house into a certain sewer situate in the same district and vested in the district Board of the district, and that the drain was a drain which the defendant was hy the said Act of Parliament authorized to make, and that thereupon the defendant, in pursuance and according to the powers given to him by the said Act, at his own expence made the said drain ; and that all things had been and were done and happened and existed, and all times elapsed, necessary to entitle him to make the same under and according to the statute ; and in so doing the defendant necessarily dug and caused to be dug the said hole and trench in the highway, the same being a necessary part of the work of the making of the drain and thereby necessarily obstructed the highway and rendered the same dangerous, as he lawfully might. The defendant Hubble pleaded Not guilty, by statute 25 & 26 Viet. e. 102, s. 106, The Metropolis Management Amendment Act, 1862. Issues on all the pleas. On the trial, before Blackburn J., at the Sittings in London after Hilary Term, 1863, the following state of facts appeared in evidence. The defendant Pullen was the owner of a house and premises situate at the corner of Clark's Terrace, Lewisham Road, where it is crossed by Evelyn Street, having a garden attached to the house and extending for some distance down Evelyn Street, parallel with and next adjoining the same, being only divided from it by the garden wall. The defendant Hubble was inspector [973] of nuisances under the District Board of Works for the Lewisham district, in which the house was situate, formed under The Metropolis Local Management Act, 18 & 19 Viet. c. 120; and, having been applied to by the occupier of the house in respect of a nuisance caused by a cesspool situate in the garden belonging thereto, gave notice to the defendant Pullen, the owner, under the provisions of that Act, and required him to cure the nuisance, and pointing out that it could be done by making a drain from the cesspool, carrying it under the garden wall, and thence across the public footpath in Evelyn Street, adjoining the garden wall, into a pipe drain in Evelyn Street running along the side ef the footpath and so into a sewer in Nicholas Street vested in the district Board. The defendant Pullen thereupon employed the defendant Hubble as a contractor to do the work in question for the sum of 201., and the same was accordingly done under the immediate inspection and direction of the defendant Hubble, and the earth filled in over the drain and the work left. A few days afterwards, namely on the night of the 25th April, 1862, the female plaintiff, whilst passing along Evelyn Street on the public footpath next adjoining the garden and across which the drain had been cut, fell violently into a hole or trench over the drain and sustained the injuries complained of, without any negligence on her part. There had been heavy raina a day 5 B * B. 7. GRAY V. PULLEN 1093 or two before the accident, which had caused the ground so to sink as to make the hole into which the female plaintiff fell. At the close of the plaintiffs' case the learned Judge ruled that there was no evidence to go to the jury that Hubble had acted as the servant of Pullen in making [974] the drain, but the evidence was that he had acted as a contractor for the work; that the defendant Pullen had authority to cause the drain to be made under stat. 18 6 19 Viet. c. 120, s. 77, and did not come within the scope of the 110th and lllth sections of that Act so as to be responsible for the performance of the work. He accordingly withdrew the consideration of the case against Pullen from the jury; and as to the defendant Hubble, he left it to them to say whether the filling in of the hole or trench over the drain had been properly done, or whether there had been any negligence with regard to the filling in of the same. The jury found that the ramming in of the earth was insufficient, and found a verdict against Hubble with 651. damages ; and thereupon the learned Judge directed a verdict to be entered for the defendant Pullen, bat reserved leave to the plaintiffs to move to enter the verdict against him also under the 110th and lllth sections if, on the proper construction of the statute, he was responsible for the surface of the drain not having been properly filled in. In Easter Term, 1863, April 16th, H. Mills moved accordingly.-The defendant Hubble was a contractor, not a servant, and is therefore liable for mischief occurring to others through his negligence. Bat, as regards the defendant Pullen, the case turns on the second count of the declaration, and on sects. 110 and 111 of The Metropolis Local Management Act, 18 & 19 Yiet. c. 120. Sect. 110 enacts, "Whenever it is necessary, from any cause whatever, for any Company or person to break up or open the pavement, surface, or [975] soil of any street, such street, and the pavement, surface, and soil thereof, shall be broken up and opened under the superintendence of the vestry or district Board of the pariah or district in which the same is situate, and in such manner, and aa regards gas Companies at such time, as they shall direct; and such Company or person shall with all convenient speed complete the work on account of which the same is broken up or opened, and fill in the ground and make good the pavement or surface or soil so broken up or...
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Building and Construction Law
...the relevant statute, delegation can be regarded as a fulfilment of the obligation: Gray and Wife v Pullen and Hubble (1864) 5 B & S 970; 122 ER 1091 and Mulready v J H & W Bell Ltd[1953] 2 QB 117. The Singapore Institute of Architects form of contract 5.32 The operation of the Singapore In......