Jenner v Allen West & Company Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 10 March 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0310-2 |
| Docket Number | 1956. J 3588 |
| Court | Court of Appeal |
| Date | 10 March 1959 |
[1959] EWCA Civ J0310-2
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the High Court of Justice Queen's Bench Division.
The Master. of The Rolls
(Lord Evershed) and
Lord Justice Psarce.
Mr F. W. BEEEY Q.C and Mr HUGK GRIFFITHS (instructed by Mr. W.H. Thospson) appeared on behalf of the Plaintiff (Respondent).
Mr MARTIN JUKES, Q.O and Mr JOHN MAY (instructed by Messrs Olifford-Turner & Co.) appeared on behalf of the Defendants (Appellants).
THE MASTER OF THE ROLLS: I have asked Lord Just ice Pearoe to deliver the first Judgment.
LORD JUSTICE PEAROE: This is the Defendant's appeal from a judgment of Mr. Justice Gorman in favour of the Plaintiff, a widow, awarding her £1,110 damages under the Fatal Aooident Act in respeot of the Defendant's breaoh of statutory duty and negligence at common law, whereby the plaintiff's a husband net his death. The total damages were assessed at £4,440, but that amount was reduced by three-quarters owing to the contributory negligence of the deceased.
The Defendants appeal on two grounds. First, they contend that the Judge should have entered judgment for the Defendants on the facts as he found them or as he should have found them. Secondly, they contend that in estimating damages the Judge wrongly refused to take into account the benefit received by the widow from a pension given to her by the Defendants by reason of the husband's death.
The plaintiff contends that the Judge should have found yet a further breach of statutory duty against the Defendants, and that the deoeasad was guilty of no contributory negligence, or alternatively that the Judge assessed his proportion of it too highly.
The Defendants have a faotory at Lewes Road, Brighton, where they make elect rioal switoh-gear. The deceased was a plumber working in the Defendants' maintenanoe department which employs about 100 men. as was 53 years of age and had worked for the Defendants for 39 years. On 23rd June, 1955, he was working on the roof of a building in charge of three men when he feell to the ground and was killed.
The nature of the work was this. The building in question was about 20 feet high at its apex and was roofed with corrugated iron. One side of the roof sloped down at an angle of 20 degrees and ended in a gutter running between that roof and the next. On the other side of the gutter was a steep adjoining roof set with glass fanlights. The gutter was about 10 feet off the ground. it had had to be removed and repaired. In order to do that it had been necessary to remove the sheets of corrugated iron that ran down to it. The voof consisted of three rows of oorrugrted iron sheets each 10 feet 6 inches by 2 feet 3 inches and weighing 64 lbs. The bottom row of sheets had teen removed, while the two top rows were left in position. The removal of sheets exposed and laid bare the beams, purlins, and wooden stretchers, and the asbestos calling or inner skin of the building. On the day of the accident the work of the deoeased with his three helpers was to replace the row of corrugated iron sheets that bad been removed. They would naturally start by putting in the sheet nearest to the side-edge of the roof. Sheets oould be handed to a man standing in the gutter by another man standing on a low lean-to roof of corrugated iron that ran up to that side of the building. A man standing in the gutter would have glass fanlights behind him and in front of him would be the 10 foot strip of exposed timbering on which they had to replaoe the corrugated iron sheets.
The asbestos and stretohers were obviously unsafe to tread on, but the top two-thirds of the roof (from which the corrugated iron had not been removed) would bear their weight safely. They could approach that either by a ladder set against the side of the building or by putting boards across the unprotected 10 foot gap, or, (very precariously) by orossing on the stout beams and purlins and taking care not to tread on the stretohers and asbestos.
It was not possible for the sheets to be wholly manipulated by men standing in the gutter because the upper end of the 10 foot sheets of currugated iron had to be inserted underneath the row of sheets higher up on the roof (that is to say), between the edges of these sheets and the purlins on which tney rested) so as to create an overlap of about a foot to keep out the water. So while one man in the gutter was taking the sheet over the side of the building and pushing it up into position taking care not to break the glass fanlights behind him, another man had to be holding up the edge of the higher sheet in order that the new sheet could be slid under it. if the nan who was holding up the edge of the higher sheet was stationed on the higher sheets, he would obviously have to make some arrangement by which be was not sitting on the actual sheet whose edge he was trying to raise. He would have to do it be placing himself on a sheet to the side of the sheet he was trying to raise. Or he could place planks across the bare beams and purlins and from that plank he could raise the edge always provided that the plank did not by its weight hold down the edge of the sheet he was trying to raise. Or he could stand on a ladder against the side of the building and so raise the higher sheet while the lower was slid into position by the man standing in the gutter. When the first sheet of the bottom row was in position he could then kneel or lie on that sheet in order to hold up the edge for the next, and so forth. Several possible methods were disoussed in ovidence at the trial. It is clear, therefore, that altheugh it was not a perilous task, it was one which demanded some thought and care. It had one serious risk to be avoided, namely the risk which anyone would inour if he put his weight on the bare and exposed stretohers and asbestos.
The deceased was well accustomed to the roofs of the Defendants' premises and it was to him that they looked when repairs had to be done on them. He was in the habit of using boards for roof work and had himself on that day warned his assistants to keep their weight off the exposed asbestos and stretohere.
He went up on to the gutter by means of a ladder. When next seen he was on the second row of sheets, that is, just abov the exposed strip. As there were no boards on the roof he had presuitably reached that position by the precarious method of crossimg the beams.
He had sent one of the men for a ladder but had apparently becosse impatient and theught he could manage without It. The first sheet was then passed up and a man standing in the gutter tried to push it up into position underneath the edge of the sheet on the higher row. The deoeaeed was trying to help the manoeuvre by lifting that edge. He moved in order to get a better grip. He had his weight on his left foot, which was on the solid second row of sheets, but his right foot was overhanging the sheets and rested lightly on a stretcher in the exposed part of the roof. He alipped or placed too much weight on the stretcher, fell through the asbestos coiling and was killed.
The plaintiff alleged that the Defendants were in breach of Regulation 31 (3) of the Building Regulaticis; which reads: "Where work is being done on or near roofs or coilings coversd with fragile materials through which a person is liable to fall a distance of more than 10 feet (a) where workmen have to pass over or work above suoh fragile materials suitable and sufficient ladders, duck ladders or crawling boards which shall be securely supported shall be provided and used". The breaches alleged were both failure to provide and failure to use.
Under Regulation 4 - "It shall be the duty of every person employed to comply with the requirements of suoh Regulations as related to the performance of an act by him and to co-operate in carrying out p/irte II to VII of these Regulations and if he disoovers any defect in the scaffolding plant or appliances to report suoh defect witheut unreasonable delay to his employer or foreman".
The learned Judge found that Regulation 31 (3) applied to the ciroumstancee of this case. He found that the obligation to provide suitable crawling boards had not been broken, since boards were avaliable had the deceased ohosen to avail himself of them and the deceased knew where they were.
Mr. Beney contends that the learned Judge was in error in thus acquitting the Defendants of a breaoh of duty to provide crawling boards in that they only provided soaffold boards. I will deal with that point later. It is of some importance since, if correct, it would in my opinion demand some not very large consequential alteration in the proportions of blame.
The Judge did, however, find that the obligation to use crawling boards was broken. "Unfortunately", he said, "these boards were not used and it is the twofold obligation upon the Defendants here to provide and to use. It is quite olear that Mr. Jenner knew quite well that these boards were there and in so far as there is a failure on the part of the Defendant Company to carry out their obligation under the Regulation of using these boards, the fault is upon Mr. Jenner".
The Judge then gave anxious consideration to the question whether the facts of the case came within the authority of Manwaring v. Billington (which is reported in 1953 All England Reports, page 747). In that case the Plaintiff had been given definite instructions as to the fixing of ladders, but in breach of the Regulations he failed to carry them out. It was held that he could not recover damages for an injury that resulted from this breach. Mr. Jukes relies on that case and the words of Lord...
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