Ivor Desmond Bloomfield v Albany Roofing Services Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STEPHEN BROWN |
| Judgment Date | 31 July 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0731-15 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 87/0852 |
| Date | 31 July 1987 |
[1987] EWCA Civ J0731-15
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR. JUSTICE LINCOLN)
Royal Courts of Justice
Lord Justice Slade
Lord Justice Stephen Brown
Sir John Megaw
87/0852
MR. STEPHEN SEDLEY Q.C. and MR. PHILIP ENGELMAN (instructed by Messrs. Brian Thompson & Partners) appeared for the Appellant (Plaintiff).
MR. PIERS ASHWORTH Q.C. and MR. PHILIP NAUGHTON (instructed by Messrs. Thompson & Co.) appeared for the Respondents (Defendants).
This is an appeal by the plaintiff, Ivor Desmond Bloomfield, from the judgment of Anthony Lincoln J. given on the 25th October 1985. The learned judge then gave judgment in favour of the defendants, Albany Roofing Services Limited, upon the trial of the issue of liability only in this action.
The plaintiff's claim was for damages for severe personal injuries sustained on the 7th October 1980 when he fell through a roof at garage premises which he was engaged in re-roofing.
At the material time the plaintiff was aged about 30 years. He had been a roofer all his working life from the age of 16. When he was 20 he set up his own roofing specialist business in which he employed other people. On the 5th February 1980 he established a limited company incorporating his business. The company was "Sure Seal Roofing Limited". For practical purposes the plaintiff was the company, although he did from time to time employ others to assist him in carrying out the work.
The defendants, Albany Roofing Services Limited, are roofing contractors, and from about 1979 when the plaintiff moved to East Grinstead his company "Sure Seal Roofing Limited" undertook a considerable amount of roofing work under contract to the defendants. Such work was done substantially by the plaintiff himself with an assistant. When working under contract to the defendants, the plaintiff through his company would provide the materials and the necessary labour to carry out the roofing work whilst the defendants would supply the scaffolding. When the plaintiff's company carried out work directly for a customer, the plaintiff through his company would arrange for the necessary scaffolding to be supplied.
In August 1980 the defendants tendered for roofing work at the premises of Caffyn's Garage at Winon in Dorset. They in turn approached the plaintiff with a view to sub-contracting the work to his company. The plaintiff submitted an estimate for supplying and fixing asbestos sheeting together with timber purlins to support the sheeting. The defendants for their part had submitted a quotation to the building owners, Messrs. Caffyn Limited, for the carrying out of the work. The defendants' quotation included a price for supplying the necessary scaffolding. The plaintiff's company through the plaintiff negotiated with the defendants in their turn upon the basis that the defendants would provide the scaffolding. The plaintiff did not visit the site before submitting his first estimate; but on 12th September 1980 he went to the site and there met the defendants' area manager, Mr. Connolly, because certain extra work was required to be done. The learned judge accepted the plaintiff's evidence that on that occasion he noted that part of the work was to be done on a sloping roof and he therefore decided that he would need a roofing ladder in addition to the scaffolding in order to carry out the work. The type of roofing ladder in question is illustrated on page 111 in the bundle before the court. It is fitted with a ridge hook assembly and battens so that it can be placed over the ridge of the roof whilst the battens will span the corrugations. Although there was an issue of fact at the trial as to whether the plaintiff did in fact ask for a roofing ladder, the learned judge found that he did ask the defendants through Mr. Connolly to supply such a ladder and that Mr. Connolly agreed to do so without extra charge.
The relevant contract for the work in question was made between the defendants and Sure Seal Roofing Limited, the plaintiff's company. This did not contain any reference to the provision of a roofing ladder. It merely provided: "scaffold to be supplied by Albany Roofing Services Limited".
On 6th October 1980 the plaintiff went to the site to receive the materials which were then arriving and he put them at roof level. The scaffolding was up, but no roofing ladder was to be seen. The learned judge found that on the 6th or the 7th October the plaintiff telephoned the defendants and spoke either to Mr. Connolly or to a Mr. Newman, who was also employed by the defendants. He failed however to make it clear in his telephone call which type of ladder he was referring to when he said that the ladder had not arrived. It would appear that the defendants through Mr. Newman had mistakenly ordered a "pole" ladder rather than a roofing ladder from their equipment suppliers. The judge said that, if the plaintiff had made the matter clear, he had no doubt that the defendants through either Mr. Connolly or Mr. Newman would have put the matter right without delay.
The plaintiff's evidence was that he was told when he telephoned the defendants that the ladder was on its way. In fact, of course, a roofing ladder had not been ordered due—as the judge found—to an administrative error. The plaintiff did not wait for the arrival of a ladder. He carried on with work on the roof, which he was able to do from firm scaffolding. Then, as he worked on the sheets towards the centre of the roof to a point not reachable from the scaffolding, he next had to move on to the corrugated asbestos roof. It was at this stage that he took a step which led immediately to his tragic accident. In his evidence-in-chief he said that that morning he had made up a crawling board of his own devising consisting of a nine inch wide scaffold board and some battens because, as he said, "We needed something nice to walk on to get from the flat roof on to the roof we were working on and this was the ideal thing for that". He was working with the assistance of a Mr. Grimstead. He had to loosen a bolt off the old sheets. He described how he and Mr. Grimstead had been getting the bolts from the new sheeting and leaning over to the old sheets to take the bolts out. There came a point when he wished to get to a particular bolt and, in order to reach it, he "grabbed hold of the duckboard". The duckboard referred to was the scaffold board which he had made up that morning for the purpose of walking from the flat roof on to the part of the roof on which they were working. He described how he placed this board up the roof on the old sheeting at a point where the sheeting was supported by purlins. As he leaned over to loosen the bolt, whilst being supported by the board, the board wobbled and he fell through the old sheeting down to the ground and suffered injuries to his spinal cord which led to quadriplegia.
The judge found at page 6A of his judgment:
"In the absence of a roofing ladder or any other proper equipment he (the plaintiff) brought into use a makeshift ladder of his own making. It was a board or plank with battens fixed laterally to the board to support it on the roof. The battens were 9 inches long as they lay beneath the board and they were fixed crosswise to the board. He placed this equipment up the roof on the old sheeting, at a point where the sheeting was supported by purlins. This was a thoroughly dangerous thing to do, as was accepted by counsel for the plaintiff, for the crests created by the corrugation were 6 inches apart running vertically down the roof and so the lateral battens of the board overhung the crests, rendering the board unstable. The roof ladder, had it arrived, would have been 15 inches wide and for that reason is a stable piece of equipment."
We should say that Mr. Sedley on behalf of the appellant does not agree that he conceded that it was a "thoroughly dangerous thing to do", but nevertheless that was the judge's finding. The judge then posed the question:
"On these facts are the defendants to any extent liable for these grevious injuries?"
The plaintiff's claim was brought in negligence. He alleged that the defendants owed him a duty to provide a roofing ladder and negligently in breach of their duty failed to provide any such ladder and that as a result he fell through the roof and sustained the injuries in question. In his statement of claim and at the trial he also alleged breaches of the Construction (Working Places) Regulations 1966. However, so far as the regulations are concerned, Mr. Sedley acknowledges that, in the light of authority, he is not able to pursue that allegation of breach of statutory duty. He accepts that this court is bound by its decision in Smith v. George wimpey & Co. Ltd. (1972) 2 Q.B. at page 329. Regulation 3 of the regulations imposes the relevant duty on "every contractor and employer of workmen". The plaintiff, however, was not employed by the defendants but by his own company, which was an independent contractor. Mr. Sedley therefore accepts that he is unable to rely on a breach of the regulations before the trial court or before this court. He wishes nevertheless to reserve his position.
Before the trial judge it was also argued that a collateral contract had been concluded between the...
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