Johnson v Rea Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ORMEROD,LORD JUSTICE HARMAN,LORD JUSTICE PEARSON |
| Judgment Date | 06 October 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J1006-2 |
| Court | Court of Appeal |
| Date | 06 October 1961 |
[1961] EWCA Civ J1006-2
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Ormerod
Lord Justice Harman and
Lord Justice Pearson.
MR JEFFREY COLLINSON, (instructed by Messrs. Hill, Dickinson & Co.) appeared oh behalf of the Appellants (Defendants).
MR J. EDWARD JONES, (instructed by Messrs. Silverman, Livermore & Co.) appeared on behalf of the Respondent (Plaintiff).
: This case comes as an appeal from a decision of the Presiding Judge of the Liverpool Court of passage given on the 15th December, 1960 when he held that the Defendants were liable to the Plaintiff in damages for injuries which the Plaintiff sustained in an accident, but that the Plaintiff himself was guilty of contributory negligence. The learned Judge apportioned the blame between the Plaintiff and the Defendants equally and, therefore, the amount of the damages awarded to the Plaintiff was only one half. The total sum of damages awarded in the event of the Defendants being wholly liable was £560. 7. 8. and, in consequence, the sum awarded to the Plaintiff was £280. 3. 10. The quantum of damages in this case has not been challenged and the only issue is that of liability.
The appeal comes before this court, in the first place, as an appeal by the Defendants. The grounds of their appeal are, first, that there was no breach of duty on their part which was in any way responsible for the accident; and secondly, that if there was, the blame which was to be attached to the plaintiff was substantially higher than that attributed to the Plaintiff by the learned Judge. In this court we gave Mr. Jones, on behalf of the Respondent (the Plaintiff in the action) leave to file a cross-notice asking for the judgment of the learned Presiding Judge to be varied on the ground either that the Plaintiff was not guilty of any contributory negligence or, if so, that his share of the blame was substantially less than the 60 per cent, attributed to him by the learned Judge. The matter therefore came before us to be argued on those two questions: namely, whether, in the first place, a duty was owed by the Defendants to the Plaintiff and there had been a breach of it which was responsible for the plaintiff's injuries; and secondly, if so, whether and in what proportion there had been any contributory negligence on the part of the Plaintiff.
I may say at the outset that the facts of the case, although they may not be unusual, give rise to matters which do not appear to have been discussed in this court before; at any rate, the industry of learned counsel has been unable to produce for us any assistance in the way of authority. The facts are as follows. There are in the Birkenhead docks sheds attached, to the loading quays, and there was in particular a shed which was appropriated to the Anchor Line Limited. It appears that the Anchor Line had used this particular shed and berth for a number of years; but that is not in evidence and, indeed, is not relevant to the matters we have to decide. The Anchor Line had employed the Defendants, Rea Limited, a firm of stevedores, to do the necessary work of loading a ship at this berth with various commodities. These commodities were being stored during the process of loading either in the shed or on the wharf. The shed was a very large one. We have not been given in the evidence or the agreed plan anything like the full dimensions of it, and they may not be material; but it is agreed by both parties that the shed was very large. At one end of it there was an office, which for the tine being, if not always, was used by the Defendants, Rea Limited, so that they could control the work of their stevedores. The man in charge of the stevedore operations at this particular time has been described in the evidence as the receiver of cargo, and his name was Armstrong.
The accident occurred on the 10th June, 1959. The Plaintiff was the second man of a lorry charged with the duty of delivering kegs of chemicals to the stevedores, which in due course were to be loaded on to the ship. It is to be noted that the stevedores were not the occupiers of the shed, or the quay, but were merely under contract with the owners of the ship. The Plaintiff was not employed by the owners of the cargo (we know nothing about them) and certainly not by the owners of the ship or by the stevedores. On the 9th June, as the second man of the lorry, the driver being a man of the name of Davies, the lorry arrived at the shed with a load of kegs of drums of chemicals. The Plaintiff, as was his duty, went into the shed and found Mr. Armstrong, the receiver of cargo, and obtained from him instructions for the placing of the kegs.
It appears that the kegs had to be placed on the quay itself, and the Plaintiff said in evidence that he walked back to the doorway of the shed with Mr. Armstrong and he then commented on the slippery nature of the floor. The floor was slippery in this way and for this reason. A substantial portion of the cargo which at that time was being moved into the shed and, presumably, eventually on to the ship, consisted of soda ash. It arrived in hessian sacks and was being transported by the Defendants by means of a portable crane into the shed and presumably on to the ship. The evidence is that soda ash can be, dependent on the amount of moisture, a very fine dust, or it can be something a little more cohesive. If it is a very fine dust it seeps through the hessian sacks in which it is packed and is deposited on the floor; and the evidence is that so deposited, although it is not as slippery as ice, on a floor of this kind it is slippery. If there is a little moisture in the soda ash it may be that a more cohesive substance is deposited on the floor; or the substance on the floor, after exposure to the damp and pressure being put upon it, becomes more cohesive and is then more slippery. But, in any event, any deposit of soda ash, be it fine and dry or be it damp and therefore more cohesive, is a substance which makes the floor slippery. The Plaintiff knew this, because he realised when he was walking back with Mr. Armstrong that the floor was slippery: he made some comment to that effect, and Mr. Armstrong agreed. There can be no doubt that both the Plaintiff and the Defendants' representative were aware of the fact that the floor was slippery and therefore dangerous.
It appears from the evidence – it appears only sketchily, but the learned Judge certainly has accepted it in his judgment – that this particular lorry had arrived at the gate of the shed and was going to be unloaded out of its turn. In the circumstances, perhaps it is natural that the driver of the lorry, who apparently wanted to get away, should feel the necessity of wasting no time in discharging his load. it appears from the driver's evidence that as soon as the lorry was stopped in position he put the kegs on the floor or deck of the lorry so that they could be removed easily, the idea being that he and his second man (this appears to be the custom in these docks) should deposit the kegs in the place where Mr. Armstrong had asked that they should be deposited, namely, on the wharf side. The kegs were 2' long and 15" wide and weighed about 1 cwt. each. The Plaintiff picked up the first one and put it on his right shoulder and was carrying it into the shed with the intention of taking it to the place where he had been told to take it when he slipped. As a result of slipping, he fell to the ground, the keg fell on his hand and the injury of which he complains was then caused to his hand. The driver was intending to follow with the second keg, but, naturally, having regard to the accident, he did not do so.
Those are the facts upon which the case depends. The learned Judge has found, as I have already said, first, that the Plaintiff was guilty of contributory negligence to such an extent that he attributed half the blame to him. He had greater difficulty in coming to the conclusion on the other question, as to whether the Defendants had been guilty of any breach, but in the end he decided that they had and awarded damages to the extent of £280. 3. 10. The note of the judgment is not an agreed note, in the sense that it has not been submitted to the learned Judge and he has not approved it. But we have before us, by the agreement of the parties, two separate notes, one being a copy of the notes of the judgment taken by Mr. Collinson, who appeared on behalf of the Defendants (the note seems to be fairly complete, although shorn of all words which might not seem strictly necessary) and the other taken by Mr. Jones, counsel for the Plaintiff, in which he sets out rather more fully what was said by the learned Judge. I think the parties are agreed that there is little, if any, difference between the two versions, apart from the fact that one is a little fuller than the other. I will read, purely as a matter of convenience, from the note of the judgment taken by the Plaintiff's counsel. In the second paragraph the learned Judge says: "The Plaintiff slipped on the dangerously slippery floor and fell and sustained an unpleasant injury. Were the Defendants negligent? I am quite satisfied that the Plaintiff was. The mere knowledge does not destroy negligence. I have to consider whether the Defendants out to have done something. In a short period I do not say they ought to have done anything, but in the time limit and the Plaintiff having to carry a 1 cwt. keg across a surface known to Armstrong to be dangerous nothing was done to minimise the risk. No one in the Defendant firm applied his mind to the danger and it is time they did so".
The evidence was that although the Defendants had been loading this soda ash for something up to four days and knew that it resulted in the deposit on the floor which made it slippery they had done...
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