Henderson v Henry E. Jenkins & Sons
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DANCKWERTS,LORD JUSTICE SACHS,LORD JUSTICE EDMUND DAVIES |
| Judgment Date | 04 November 1968 |
| Judgment citation (vLex) | [1968] EWCA Civ J1104-2 |
| Date | 04 November 1968 |
| Court | Court of Appeal (Civil Division) |
[1968] EWCA Civ J1104-2
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice Nield - Cardiff)
Lord Justice Danckwerts
Lord Justice Sachs and
Lord Justice Edmund Davies
Mr. JOHN DAVIES, Q.C. and Mr. PETER RIDDELL (instructed by Messrs. Simpson, Palmer & Winder) appeared on behalf of the Appellant (Plaintiff).
Mr. W.L. MARS-JONES, Q.C. and Mr. ESYR LEWIS (instructed by Messrs. Theodore Goddard & Co., Agents for Messrs. Leo Abse & Cohen, Cardiff) appeared on behalf of the Respondents (Defendants).
I will ask Lord Justice Sachs to give the first judgment
This is an appeal by the plaintiff from a judgment given by Mr. Justice Nield in favour of the defendants at Cardiff Assizes on the 15th February this year. The plaintiff is the widow of a postman who died on the 9th October, 1963. His death was caused by his being run over by an Albion lorry owned by the first defendants and driven by their employee, the second defendant. That lorry itself weighed 4½ tons. Its load weighed 9 tons or slightly more, and its aggregate loaded weight was thus somewhere between 13 and 14 tons. It was being driven down one of those steep winding hills so typical of certain parts of South Wales. This particular hill was 1¼ miles long. Its gradients were signposted as 1 in 6, and were in fact 1 in 6 and in places 1 in 9" The material part of the road passed through a village or township. As this, lorry descended the hill it approached a stationary Post Office van which was on the same side of the road. The Albion lorry was intended by its driver to pause behind that Post Office van so as to enable a van coming up the hill to pass. However, in fact it crashed into the van and ran over the plaintiff, who was just getting out of it.
Having heard the evidence, the trial judge exonerated the second defendant from blame and negatived an allegation that the deceased man was guilty of contributory negligence. He held that the cause of the accident was brake-failure, due to the brake fluid pipe of the hydraulic braking system being so corroded as to be paper-thin (l/10th millimetre was the figure given) and this pipe becoming punctured by the 1400 lbs. pressure of the brake fluid when the brakes were applied. Those findings are not contested in this Court; nor is there an appeal against judgment being entered for the second defendant, the driver.
The trial judge went on to find that the first defendants were not negligent in allowing that lorry to be on the road in a state which all the witnesses agreed was dangerous because ofthe corrosion. It is against that finding that the plaintiff appeals as against the first defendants and asks that either judgment be entered in her favour or that a new trial be ordered.
At the conclusion of the evidence at trial the position on the relevant issue was as follows. Firstly I will take matters that were common ground. The pipe was some 10 feet long and its walls should have been at all points 7/10ths millimetre thick. At the point where corrosion had reduced it to l/10th millimetre it ran along the inside of a right-angled bend of a U-shaped massive steel member and so continued to run for a considerable part of its length. It was secured to this member by an unspecified number of metal clips which originally had an inner rubber pad between the metal of the clips and the metal of the pipe. The pipe itself was joined to the master cylinder in the usual way by a nut that could be unscrewed.
The wellbeing of this pipe was established as being absolutely vital to the safety of this great vehicle. Whatever be the degree of risk of serious corrosion, it was accepted on all sides that the consequences of that corrosion producing failure could be of the utmost gravity as regards destruction of property or disastrous injury to an individual.
The pipe was fixed in a position of which 60 per cent, could be seen upon a visual examination in situ, but 40 per cent could not be seen so long as it remained in position. As regards corrosion it was that 40 per cent, which was most liable to be affected, but no one had looked at it during the whole lifetime of the lorry. The degree of corrosion affecting that 40 per cent, of the pipe at the time of the accident was such that it was considerably pitted, and if that had been seen it would immediately have been taken off the road, it was so very dangerous in that condition.
The lorry was being used in an area in which very steep gradients are not uncommon, and the hill on which the accident occurred was one of that type.
It follows upon the matters cited as being common groundthat there existed a very strong prima facie case for some examination of the 40 per cent, of the pipe in which corrosion occurred beyond merely examining the 60 per cent, in which no corrosion occurred.
I now turn to some matters on which the evidence was very scanty and to some on which there was conflict not resolved by any findings in the judgment. As regards the likelihood of material corrosion, for instance, there was no such finding: but there was ample evidence, to which I will refer later, that there was a very real risk of such corrosion when a lorry is in regular use, at any rate after some two years. As regards the life of a lorry, it was in evidence that usually such lorries cover some 50,000 miles a year and that their total unrenovated life could be taken at something like 300,000 miles. There was, however, no satisfactory evidence as to the mileage of this lorry, which was first registered in 1958. This again is a matter which I will discuss later. As regards its user, again there was no satisfactory evidence, and indeed no evidence at all as to the manner in which it had been used over five years or the areas in which it had been used – a matter stated by the defendants' experts to be of importance when assessing the degree of danger of corrosion in an area where loads vary in nature, where so much of the traffic goes not far from the sea, and where salt in quantity has to be used when there are serious snowfalls.
It is to be observed that the absence of evidence on such matters militates against any suggestion that the degree of corrosion found can be regarded as unusual for a lorry of the age and user of the particular vehicle.
The question whether a leak of the type that caused the accident would or would not be preceded by some seepage capable of giving a warning to those who only inspected the 60 per cent, was the subject of a conflict of evidence which the trial judge did not resolve. For the defendants, Mr. O'Brien, whom the judge appears to have accepted, said (at page 51 "B") "There is no such thing as seepage". This was, however, a point not put to theplaintiff's witnesses.
As against the strong prima facie case to which I have referred, the defendants established the fact that it was standard practice for owners of such lorries to rely simply on visual inspection of the 60 per cent. It was also in their favour that the experts called, even when aware of the risk, were not prepared to say that they would have advised further inspection. It was thus inherent in their evidence that the public should be called upon to take the risk of brake-failure due to corrosion or other material defects appearing in the 40 per cent. These views were given in the absence of satisfactory evidence as to the mileage and user of the lorry and do not appear to be qualified by reference thereto, and it is on them that the defendants placed their main reliance. They also relied, especially in this Court, on one further piece of evidence, which I will discuss later, raised late in the trial by their second expert, Mr. O'Brien, but again not put to the plaintiff's witnesses.
It is in those circumstances that it comes to be argued in this Court whether the trial judge paid sufficient attention to the question of onus of proof and whether he misdirected himself on certain aspects of the evidence, and on how far a court is bound by the existence of a standard practice or by the opinions of experts when considering what degree of risk can be put upon the public. That word "public" I use in the same way as did Mr. Justice Devlin (as he then was) in Basted's case ( 1954 2 Lloyd's List Reports at page 139) in relation to the owners of a crane the brakes of which had failed. He there said of the owners of the crane, "They owe that duty, I think, to the members of the general public, that is to say, to anybody who a reasonable man would foresee might be injured by the result of such a defect".
This is one of those relatively rare cases where the incidence of the burden of proof is of importance not only at the opening of the trial but also at the end of the day. For the ultimate decision falls to be made in the light of many facts, knowledge of which is solely vested in the defendants. Thatburden was one which the tenor of the judgment of the trial judge shows may not have been appreciated by him. Whilst recognising the pressure of Circuit work, in the course of which this by no means easy case came to be determined from start to finish in a single day, it yet seems to me that there would otherwise have been reference in the judgment to a number of matters which in fact escaped mention.
When using the words "the end of the day" I am, of course, aware that there has been careful and full argument by Mr. Mars-Jones to the effect that the Court should at that stage not regard the burden as lying on the defendants but should simply look at the evidence as a whole. For my part I do not accept that in a case such as the present the Court should at the...
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