Honeywill & Stein Ltd v Larkin Brothers (London's Commercial Photographers) Ltd
| Jurisdiction | England & Wales |
| Date | 1934 |
| Year | 1934 |
| Court | Court of Appeal |
Negligence - Work involving special danger to others - Extra-hazardous acts - Delegation to independent Contractor - Negligence of independent Contractor - Liability of Employer.
Where a person employs an independent contractor to do work which involves special danger to another's premises, he must take reasonable precautions to see that the work does not cause damage to the premises.
Where, therefore, the plaintiffs had procured the defendants, as independent contractors, to take photographs of the interior of a cinematograph theatre, and owing to the defendants' negligence the premises were damaged by fire:—
Held, reversing the judgment of Bennett J., that the plaintiffs were liable to the owners of the theatre for the damage caused by the negligence of the defendants, and therefore were entitled to recover damages from the defendants for breach of contract or negligence in taking the photographs.
APPEAL from Bennett J. (sitting as an additional judge of the King's Bench Division).
The plaintiffs, who were specialists in acoustic work, had installed a sound reproduction apparatus at a cinematograph theatre owned by the Denman Picture Houses, Ld. They then obtained permission from the owners to have photographs taken of the interior of the theatre, for their own business purposes, and they employed the defendants to take the photographs. The defendants first took a photograph without flashlight, but as it was not satisfactory they took photographs of the interior with flashlight, which, according to the evidence, was the usual method of photographing interiors. The use of flashlight involved the ignition of a certain amount of magnesium powder in a metal tray or holder held above the lens. That powder on being ignited flared up and developed an intense heat, and hence was dangerous if brought near fabrics or other inflammable material, so that not only must precautions be taken against draughts, but there must be no inflammable material too close when the flash is fired. On the occasion in question the operator took the photograph by placing the camera on the stage, in the space between the footlights and the curtain, and ignited the magnesium powder at a distance of not more than four feet from the curtain. The trial judge found that in doing so he was guilty of negligence. The curtain caught fire from the ignited magnesium, and damage was done before the fire could be extinguished to the extent of 261l. 4s. 3d.
The cinema company threatened the plaintiffs with an action to recover that amount. The plaintiffs, acting under advice, paid the cinema company the amount claimed as the cost of repairing the damage caused by the fire, and claimed to recover the same amount from the defendants. It was contended by the defendants that that payment was a purely voluntary payment, because the plaintiffs would have had a defence to any claim brought against them by the cinema company based on the ground that the damage was caused by the negligence of the defendants, who were independent contractors, and not servants or agents of the appellants, so that the plaintiffs were not responsible for the defendants' acts or defaults.
Bennett J. held that the work to be done by the defendants for the plaintiffs was not necessarily attended with risk, but that it was work which, as a general rule, would seem to be of quite a harmless nature, and gave judgment for the defendants.
The plaintiffs appealed.
N. L. C. Macaskie K.C. and Ian C. Baillieu for the appellants. In the circumstances of this case a duty was imposed on the plaintiffs which they could not evade by employing an independent contractor to do the work. The work of taking photographs of interiors by flashlight involves the risk of fire unless certain precautions are taken, and the plaintiffs were under a duty to see that those precautions were observed, and are responsible to the owners of the cinema for the damage caused by the failure of the defendants to observe them: see Holliday v. National Telephone Co.F1; Brooke v. BoolF2; Hole v. Sittingbourne and Sheerness Ry. Co.F3; Pickard v. SmithF4; Tarry v. Ashton.F5 Cockburn C.J. said in Bower v. PeateF6, that a man who orders a work to be executed, from which, in the natural course of things, injurious consequences to his neighbour must be expected to arise, unless means are adopted by which such consequences may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing some one else whether it be the contractor employed to do the work from which the danger arises or some independent person — to do what is necessary to prevent the act he has ordered to be done from becoming wrongful: see also the judgment of Rigby L.J. in Hardaker v. Idle District Council.F7 The plaintiffs had no defence to the claim made against them by the cinema owners, and the payment by them to the cinema owners was not a voluntary payment, and they are entitled to recover from the defendants damages for breach of contract, or for negligence.
S. H. Levine (with him Monckton K.C.) for the respondents. The question is whether taking photographs by flashlight is a dangerous operation, or whether the plaintiffs brought a dangerous thing to the premises. There is a distinction between dangerous work and other work: see Dalton v. Angus, per Lord Watson.F8 When an employer contracts for the performance of work, which properly conducted is not dangerous, he is not liable for damage arising from the negligence of the independent contractor. Here, the work which the defendants were employed to do was not dangerous intrinsically. It was only work which, by their method of doing it, became dangerous. In Rapson v. CubittF9, the defendant, a builder, was...
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