Hadley v Droitwich Construction Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE WINN |
| Judgment Date | 18 October 1967 |
| Judgment citation (vLex) | [1967] EWCA Civ J1018-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 October 1967 |
[1967] EWCA Civ J1018-1
In The Supreme Court of Judicature
Court of Appeal
Civil Division
(From Mr. Juetice Nield - Worcester)
Lord Justice Sellers
Lord Justice Harman and
Lord Justice Winn
Mr. STEPHEN TERRELL, Q. C. and Mr. CHARLES GRAY (instructed by Messrs. Lovell, White & King, Agents for Messrs. Sheppard Norcott & Co., Bristol) appeared on behalf of the Appellants (Second Defendants and Third Party).
Mr. HUGH GRIFFITHS, Q. C. and Mr. O. B. POPPLEWELL (instructed by Messrs. Wellington cc Clifford, Gloucester) appeared on behalf of the Respondents the First Defendants.
When this action came "before Mr. Justice Nield at the Worcester Assizes in March of this year he found it a case of some difficulty. That was very largely due to the fact that the time of hearing the action was so remote from the time of the occurrence to which it was related. This Court has taken I should imagine considerably longer than the learned judge at the trial to consider the appeal by the second defendants against the learned judge's decision and has equally found difficulty in arriving at the right conclusion and indeed fully appreciating some of the evidence that has been given. It is most unfortunate (as the judge says) that in a matter which involved a very detailed study of the machinery and its condition at the relevant time such a long period should elapse.
The plaintiff, who was a workman employed by Droitwich Construction Company Limited, the first defendants (whom I will call "Droitwich"), whilst at work or waiting to start work at the head of a shaft on the Hayden Sewage Works et Cheltenham on the morning of the 27th February, 1961, was severely injured by the collapse of a small crane. The result of the action was that the learned judge awarded him the sum of £4, 600 damages against his employers, the Droitwich Company, and also against a firm called Joseph Pugsley & Sons Limited by reason of the fact that they had provided the crane which collapsed on this occasion. Prom that judgment the second defendants — only — appeal. The plaintiff is not interested in this appeal and has not appeared to argue before us because it is accepted that he must recover the total amount of his judgment and that that must be sustained. It has in fact been given against both the defendants, and the only dispute is as to whether liability should remain on the appellants. It must remain with Droitwich and the question is whether Droitwich can pass over the whole of that liability in the circumstances against Pugsley. The appeal is by Pugsley against their being held liable at all in the first place and in the second place being held liable for the whole of the damageswhich the plaintiff has recovered.
The whole matter turns on the mishap which occurred to a well known type of small mobile crane which had been manufactured by Neal (who are no longer parties to the action) and was owned by Pugsley, who hired out machines of this character and who hired out this particular mobile crane to Droitwich on the 17th November, 1960, or thereabouts.
The learned judge has described in his judgment sufficiently the nature and the design of this small crane. It was only designed to carry some 15 cwt. It was perhaps not the most common type of design because it had not a kingpost but its superstructure rested on rollers. There may no doubt have been other factors assisting in the stability but so far as this case is concerned it is sufficient for me, without describing the machine, to say that an essential part of the stability of this crane, when it was carrying its various loads not exceeding its limit, depended upon the fore and rear rollers which were placed (as the photograph discloses) underneath what was the base or the main platform of the crane, which was a ring which had cogs on its circumference.
I can take the vital one, which was the rear roller. That is contained in what is called a bracket, which is a substantial metal structure with arms out right and left and upright arms as well, containing the roller and having as part of its essential equipment a pin which is designed to regulate the position of the roller.
The evidence seems to establish that for stability that roller ought to be in the best circumstances of its work not actually lying on the bottom side of the base but in very close proximity to it, and it is said to be with a clearance of no more than 1/64th-inch. The evidence also seems to establish, and the judge has accepted this, that the clearance between the roller and the base if it reaches as much as inch creates a position of danger because in that way the roller, in the course of work, and perhaps readily in the course of work, which was strenuous atthe time either "because of the load or "because of the angle of the jib or because of sudden stopping, could jerk off.
The accident has been attributed, and I think attributed without dispute in this case, to the fact that early on this morning whilst the crane was taking a load — slewing it round, I think — intending to put something down into the shaft to which it was closely adjacent, there was a sudden stop and because of the clearance between the roller and the base, the top part — the uppermost part — came off and collapsed on to the ground, hitting the plaintiff on the way.
The plaintiff, as he is entitled to do in these days, not only sued his employers for their failure to obtain a proper plant for the work, this being a defective plant, it was alleged, and because they failed to maintain or keep it in a proper condition, but sued also the hirers-out of this plant, Pugsley, the second defendants.
The judge had to make a careful enquiry into what was the circumstance of the hiring and what was the cause of the casualty. He found that there was blame on both the parties. Taking Pugsley first, the learned judge came to the conclusion on the evidence that when they handed over this crane in November of 1960 it was not adjusted in the manner in which it ought properly and completely to have been adjusted. But there was no finding that at that stage it was dangerous. Indeed it was used for some three months before this collapse occurred; it seems to have been used pretty frequently and fairly strenuously and therefore it was not established that it was in fact dangerous at the time when it was handed over.
It has been contended before us by the appellants, Pugsley, that the learned judge was not justified in making a finding hostile to Pugsley. It is true that the evidence is not such as the Court would desire in order to make any findings, affirmative or negative. It meant that the witnesses had to cast their minds back to a situation in November of 1960 from March of this year in a matter which was detailed and which was the sort of everydaything they might be attending to, Pugsley being accustomed to dealing with cranes and so forth. There is no satisfactory direct evidence as to what the condition was when delivered. The best that Pugsley could do was to say that at that time it was their practice before hiring out one of their cranes to have it examined and inspected and altered if necessary and to send it out in proper usable order, and that they had no reason to think this was not done in that way.
After the collapse one might have thought some useful evidence could have been forthcoming, because someone went to have a look at the collapsed crane and put it together again. One might have thought that one could get there some satisfactory evidence one way or the other as to what had caused the collapse and in particular what was the state of this crane when it had been delivered in November, 1960. I need not pause to consider that. It is almost negative, and learned counsel for the respondent seeks to get some advantage from that situation.
The matter really was not, I think, sought to be solved, Pugsley relying generally on misuse of the crane, overloading, overswinging, and that sort of thing. It was not really sought to be solved, as unfortunately often happens, before the matter came before the learned judge, and then an expert came along: he expressed the view — which seems to be accepted as a satisfactory one — that what did happen and brought about the collapse was that this roller slipped off and no longer retained the upper part, that caused it to collapse, and the reason for the roller slipping off was — as indeed it must have been — that the clearance between it and the base was increased to or was at the time of the accident as much as inch.
Now how did that come about? The case for Pugsley was that first of all there was no reason to think that the adjustment was not proper at the time of delivery (a proper adjustment would have been to within l/64th-inch of the base) and that in the meantime in the three months the defendants Droitwich, instead of putting in charge of the crane (as Pugsley thought they hadreason to believe they would) a competent crane driver, put in a youth of 16 or 17: and there was evidence of ill-usage in the course of the three months because the jib was broken, and indeed was mended, and a radius arm had disappeared altogether and was not there, and the whole machine looked as if it had had rather heavy treatment.
That matter had to be considered by the judge. He had evidence from some of the workmen that they were not dissatisfied with the crane driver, young as he was, as being incompetent, that he had handled the crane without any criticism from them. But what was established to the judge's satisfaction was that in the whole of the time that this crane had been in use, for some...
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