Henderson v Henry E. Jenkins & Sons
| Jurisdiction | UK Non-devolved |
| Judge | Lord Reid,Lord Guest,Viscount Dilhorne,Lord Donovan,Lord Pearson |
| Judgment Date | 08 October 1969 |
| Judgment citation (vLex) | [1969] UKHL J1008-2 |
| Date | 08 October 1969 |
| Court | House of Lords |
[1969] UKHL J1008-2
Lord Reid
Lord Guest
Viscount Dilhorne
Lord Donovan
Lord Pearson
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause Henderson (A.P.) (Widow) (as Administratrix of the estate of George Arthur Henderson deceased) against Henry E. Jenkins and Sons (sued as a Firm) and another, that the Committee had heard Counsel, as well on Monday the 16th, as on Tuesday the 17th and Wednesday the 18th, days of June last, upon the Petition and Appeal of Elsie May Henderson (Assisted Person) (Widow), of 20 Fountain Terrace, Nr. Pontypridd, in the County of Glamorganshire (as Administratrix of the estate of George Arthur Henderson deceased), 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 4th of November 1968, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, and that the Petitioner might have the relief prayed for in the Appeal, or 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 Henry E. Jenkins and Sons (sued as a Firm) and William John Evans, 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 4th day of November 1968, complained of in the said Appeal, be, and the same is hereby, Reversed, and that Judgment be entered for the Appellant in the agreed sum of £5,700 as damages: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by her in the Courts below, and also the Costs incurred by her 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 Courts below, and also the Costs incurred by her 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: 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.
My Lords,
This case arises out of a fatal accident caused by the sudden failure of the brakes of a large six wheeled lorry while it was descending a steep hill in High Street, Cymmer. With its load it weighed about fourteen tons, and it was proceeding quite properly in second gear at 8 or 10 miles per hour. Approaching traffic had required it to stop a little farther up the hill and the driver says that the brakes were then working. Then a Post Office van going down the hill in front of it pulled up and approaching traffic again made it necessary for the lorry to stop. But this time the drivers says that when he tried to stop "my foot brake went to the floor". He did his best to avoid causing injury but unfortunately the front of the lorry struck and killed the van driver who had alighted from his van.
The brakes were hydraulic, the pressure being transmitted through fluid in a tube to the brakes on the wheels. Some ten feet of this tube was carried in the angle of a chassis girder and held in position by clips, so that, on inspection while the tube was in situ, only about 60 per cent. of its circumference could be seen. This part of the tube was in tolerably good condition but when the tube was removed the day after the accident it was found that a large part of the back, which could not be seen before it was removed, was very badly corroded. A hole was found at one point and the brake failure had been caused by the liquid in the tube escaping through that hole when pressure was applied to the brake pedal, so that no pressure was transmitted to the brakes on the wheels.
It appears that it is not very uncommon for a brake to become soft or spongy owing to a small leak from some part of the braking system. When that happens the driver gets a warning that something is wrong and then it would be negligent to proceed until the leak had been traced and stopped. But the instantaneous development of a fairly large hole in one of these pipes such as that which has been held to have occurred in this case is very uncommon.
The tube was a steel tube, the thickness of the wall being ·7 mm. and originally it had been coated first by a thin film of copper and on the outside by aluminium paint. The lorry was five years old and its mileage was probably about 150,000. Otherwise we know nothing of its history apart from the facts that a fitter employed by the Respondents gave evidence that it had always been properly serviced, and that several parts of the braking system had been renewed some twelve months earlier. It had been regularly washed and the underparts had been steam cleaned some nine months earlier, and there had been regular visual inspection of the visible part of this tube. But the corrosion at the back of the tube was so bad that the point where the hole was found the thickness of the wall had been reduced from ·7 mm. to ·1 mm.
In their defence the Respondents admitted that the accident was caused by a sudden brake failure and pleaded that this resulted from a latent defect which occurred without any fault on their part and the existence of which was not discoverable by the exercise of reasonable care by them. Their case is that they have proved that regular inspection of the outer visible part of these tubes is all that ordinary practice requires, that they did that, and that they were not bound to do more. But the extent of the inspection which is necessary must in every case depend on whether the owner of the vehicle is or ought to be aware of any facts which should indicate to him that some unusual defect may have developed which would not be disclosed by the normal kind of inspection.
The Respondents' leading expert said "the only information I have been able to obtain on this was that the corrosion took place by chemical reaction. What that chemical was I do not know.
"Q. We can therefore exclude anything unusual about the metal in the pipe itself?
"A. Yes, I think so.
"Q. In this case it was subjected to some unusual treatment from outside?
"A. Yes."
It is proved that neither the Ministry of Transport nor the manufacturers advocate removal of these pipes for inspection. Normally it appears that they can safely be left in situ at least until a major overhaul is due, which one witness says should take place after about 300,000 miles. It is said that salt can cause corrosion but most lorries encounter salt not infrequently either near the sea or when passing over snow which has been treated with salt. But there is nothing in the evidence to suggest that any case has occurred where corrosion from this cause has caused a sudden brake failure. If such cases were known I would find it incredible, looking to the extreme danger to the public from sudden failure of the brakes of a lorry of this weight, that any responsible authority would approve the present practice. But on the other hand suppose the owner knew that some highly corrosive liquid had spilled over his vehicle, I would find it equally incredible that any responsible authority would approve of his merely examining the vehicle, for it is proved that even steam cleaning may not remove everything from crevices behind these pipes.
If there were nothing in the evidence to indicate a probability that something unusual must have happened to this lorry to cause the very unusual type of brake failure which the learned trial judge has held in fact occurred here, then undoubtedly the Respondents would have proved that they had exercised all proper care in this case. But if the evidence indicates a likelihood that something unusual has occurred to cause a breakdown, then I do not see how the owner can say that he has exercised all proper care unless he can prove that he neither knew nor ought to have known of any such occurrence. For if he did know of it he would have been bound to take adequate steps to prevent any resulting breakdown. It may well be that it would be sufficient for him to prove that he had a proper system for drivers reporting all unusual occurrences and that none had been reported to him.
But in this case the Respondents led no evidence as to the history of this lorry other than the evidence of the fitter to which I have referred. It may be that they could have proved that so far as they knew or could have discovered by reasonable enquiry nothing unusual ever happened to it which could have led to this corrosion. Or it may be that they did know of something but did not realise the possible danger resulting from it though they ought to have done so. We do not know. They had to prove that in all the circumstances which they knew or ought to have known they took all proper steps to avoid danger. In my opinion they have failed to do that, and I am therefore of opinion that this appeal should be allowed. Damages have been agreed to be £5,700.
My Lords,
The facts relating to this accident have been related by my noble and learned friend, Viscount Dilhorne, and I do not propose to rehearse them.
I regard this as a difficult case—difficult because some of the issues of fact have not been resolved by the trial judge upon the...
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Subject Index
...116Heaney v Ireland (2000) 33 EHRR 264 ............................................................42Henderson v Henry E. Jenkins & Sons[1970] AC 282 ................................ 228Herczegfalvy v Austria (1993) 15 EHRR437................................................... 148Hoang v Fr......
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