Ivy Grace Barry Black-Clamson Internation Ltd and Others Same
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE DAVIES,LORD JUSTICE RUSSELL |
| Judgment Date | 14 December 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J0111-4 |
| Court | Court of Appeal |
| Date | 14 December 1966 |
[1966] EWCA Civ J0111-4
In The Supreme Court of Judicature
Court of Appeal
(Civil Divison)
(From: Mr. Justice Roskill - London)
Lord Justice Davies
Lord Justice Russell and
Lord Justice Salmon
(Widow and Administratrix of Terence John Barry deceased)
Mr. E. W. EVELEIGH, Q. C. and Mr. PATRICK BENNETT (instructed by Messrs. Gardiner & Co.) appeared an behalf of the Appellants the First Defendants.
Mr. F. B. PURCHAS, Q. C. and Mr. PIERS ASHWORTH (Instructed by Messrs. Abbott, Baldwin & Co., Agents fop Messrs. Francis Ryan & Co., Cardiff) appeared on behalf of the Respondents the Second Defendants.
Mr. JOHN STOCKER, Q. C. and Mr. M. STUART-SMITH (instructed by Messrs. Bentley Stokes & Lowless, Agents for Mr. Norman Bayley, Dudley) appeared on behalf of the Respondents the Fourth Defendants.
Mr. D. E. ROBERTS (instructed by Messrs. , Fry, Coulson & Burder, Agents for Messrs. Harvey, Mabey & Sea groatt, Birmingham) appeared on behalf of the Respondents the Fifth Defendants.
Mr. R. MARVEN EVERETT, Q. C. and Mr. DAVID STINSOTT (instructed by Messrs. Sharps, Pritchard & Co., Agents for Messrs. Turberville Smith & Co., Uxbridge) appeared on behalf of the Respondent the Plaintiff (cross-Appellant).
Black-Clawson International Limited (hereinafter called "Black"), the first defendants and appellants, are the owners and occupiers of large factory premises at Newport, Monmouthshire. In August, 1960, they entered into a contract with Bees & Kirby Limited (hereinafter called "Rees"), the second defendants, for the erection at the factory by the latter of a new assembly bay 250 ft. long, 53 ft. 10 ins. span and 39 feet high to eaves. By the specification, provision had to be made to accommodate a 20-ton and a 10-ton crane, and gantry walkways had to be provided to each aide. For the purpose of protecting the eventual users of the walkway, which was to be 30 feet above the ground, it was, of course, necessary that hand-rails or guard-rails should be provided. For this purpose, Rees on the 11th October, 1960, ordered inter alia from Kingswinford Engineering Company Limited (hereinafter called "Kingswinford"), the fourth defendants, 10 tubular handrail standards or uprights. Rees were, as the judge found, contractors of the highest repute and competence, and no criticism was made of their action in subcontracting to Kingswinford the supply of these standards. Kingswinford were also well-known suppliers with whom Rees had done much satisfactory business. But in fact Kingswinford did not manufacture these standards themselves but in their turn subcontracted to Peers-Jackson Engineering Company Limited (hereinafter called "Peers"), the fifth defendants, the supply of these standards; the standards were to be delivered direct to Rees at Black's works, unpainted and under Kingswinford advice notes. Again no criticism is made of Kingswinford for sub-contracting the supply of these standards to Peers. The standards were delivered to Rees in the middle of November, 1960, and were fitted by Rees' man to the walkway some time in February. 1961.
The standards as delivered were wholly unfit for their purpose. Their design as such was inherently weak for their purpose unless the welding was carefully done) and the welding was gravely defective.
On the 7th March, 1961, the new assembly bay being not yet completed, Terence John Barry was working to Rees as an independent contractor upon the sheeting of the building. On that day Mr. Barry fell to his death from the walkway owing to the collapse of some of the standards supplied by Peers.
In consequence, Mrs. Ivy Grace Barry, the widow and administratrix of the estate of time deceased, brought this action on behalf of herself, her three children and the estate. There was a third defendant. Mills Scaffolding Company Limited; but the action as against them was discontinued, and they drop out of the story. The case was tried by Mr. Justice Roskill in June of this year. And after a six day's hearing the learned judge gave judgment for the plaintiff against both Black and Peers for £10,712. 15s. Od. and costs. This liability he apportioned between the two unsuccessful defendants as to one-third to Black and two-thirds to Peers. No question arises on this appeal as to the amount of the damages.
It may perhaps be added here, first, that all allegations of contributory negligence against the deceased were abandoned in the court below, and, second, that it was admitted that the plaintiff was entitled to recover against at least one of the defendants.
From that judgment Black appeal, and notices have also been served by the plaintiff, by Rees and by Kingswinford. The questions at issue in this appeal are: (1) Against which of the defendants is the plaintiff entitled to succeed? (2) If against more than one, what is the proper apportionment? (3) Is any defendant who is held liable to the plaintiff entitled to indemnity from any other defendant?
The learned judge set out the facts of this somewhat complicated case very fully and clearly. But unfortunately it is, in order to state the issues of fact and law involved, necessary to embark upon some degree of recapitulation.
The essential features of the standards ordered by Rees from Kingswinford are shown in the top right-hand corner of thesketch enclosed with the letter of the former to the latter dated 11th October, 1960. There is a 3-feet upright welded to a base plate and offset 1 3/4 inches from it) it would eventually be belted to the aide of the walkway. This offset was required so as not to reduce the width of the walkway. It was to be achieved according to the sketch, by having the bottom of the tubular upright curved inwards towards the base plats so that its whole cir-cumference could impinge upon the base plats and permit of a solid weld around the whole of that circumference. A convenient sample of the relevant portion of a standard made according to this sketch is before the Court as Exhibit " 4. D2". This sketch sent by Rees to Kingswinford was not strictly a design but a mere exemplification of one design by which the required offset could be attained: only dimensions were specified by Rees' order to Kingswinford. Kingswinford's order to Peers, however, did involve a design.
But the standards manufactured and supplied by Peers to Bees were of an entirely different design. It is perhaps not too easy to describe. Fortunately one of the offending standards and parts of another were produced in evidence, and there are photographs of others. The upright is straight, not curved. There projects from the base plate a circular boas welded on to it with a flat face rather larger, as the judge put it, than a half-crown piece. This is, of course, for the purpose of creating the offset. The upright is welded, or should be welded, to the face of the boss. The junction between the tubular upright and the circular boss la achieved by a cut-out of that side of the bottom of the upright which is nearest to the boss, so as to create a slight step of the upright on to the boss. This step meets vertical downward pressure but not horizontal pull or push outwards from the boss. Such pull or push must be countered by welding the boss and the upright. The cut-out does not reach below half-way down the face of the boss, and in those circumstances the limited contact between these two incongruous shapes calls for special care in welding. But the welding was verybadly and inefficiently done. Mr. Hewett, an expert witness called for the plaintiff, said in his report which was in evidence! "Visual examination of all the failed welds showed then to be substantially incomplete oven over the area of possible weld….so that they were essentially in the nature of 'tacks' rather than one continuous run. The standards had, of course, been painted after welding, and it was evident from the penetration of paint revealed after failure that the welds were discontinuous, cavitated and with limited adhesion. Slag intrusions were also present". And there is really no challenge to this. The judge found, and rightly so, that the standards were thoroughly unsatisfactory and therefore unfit to be used on the side of the walkway because of the weld which was defective.
We come now to the 7th March, 1961, the day of the accident. The place where it happened is shown in a series of photographs taken by the police shortly afterwards (Exhibit "p. 1"). On that day, at about 4 o'clock in the afternoon, two electricians, named Coombes and Holly, in the employment of Black, had a length of 250 feet of 5/16th-inch copper cable on the floor. It had been unwound from a drum and therefore had some degree of spring tension. Its total weight was 78 lbs. It was destined eventually to be installed high up in the building to carry electric current to the crane overhead. It was obstructing a door which is off to the right of photograph No. 1 and led to the ramp which is in the foreground of that photograph. It was there fore necessary for this obstruction to be moved before Coombes and his mate knocked off work for the day. To this end they decided to hoist one end of the cable up towards the walkway, whither it would eventually have to be taken in the process of installation.
This they did by means of a rope passed round the knee-rail of the guard-rail at the extreme right end, to the right of the last standard. Presumably one of them climbed the staircase with the rope in order to pass It round the rail and then came down. He did not simply lower the rope to his mate to tie tothe cable and than pall it up. Perhaps there would have been acme difficulty about this method) for it...
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