Kelly v Pierhead Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE SALMON,LORD JUSTICE HARMAN |
| Judgment Date | 10 November 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J1110-1 |
| Docket Number | 1965. K. No. 1197. |
| Court | Court of Appeal |
| Date | 10 November 1966 |
[1966] EWCA Civ J1110-1
In The Supreme Court of Judicature
Court of Appeal
Appeal from Order of Cusack J. at Liverpool Assizes dated 23rd June, 1966
Revised.
Lord Justice Willmer
Lord Justice Harman and
Lord Justice Salmon
Mr G.W. GUTHRIE JONES, Q.C., and Mr ROYAL WARD (Instructed by Messrs Norton, Rose, Botterell & Roche, Agents for Messrs Weightman, Podder & Co., Liverpool) appeared on behalf of the Appellants (Defendants)
Mr RICHARD H. FORREST, Q.C., and Mr A. MICHAEL MAGUIRE (instructed by Messrs E.R. Hoskinson, Montgomery & Co., Liverpool) appeared on behalf of the Respondent (Plaintiff).
We need not trouble you for further argument, Mr Forrest, I have asked Lord Justice Salmon to give the first judgment.
In December 1963 a large building was being erected in Glasgow at the corner of Waterloo Street and Hope Street. One of the roofing contractors for the work was the defendant company. The plaintiffs husband was employed by that company as a concrete floor fixer. This case concerns the construction of a flat roof on a one-storey projection to the main building. The roof in question, which was also a floor in the sense that when it was completed, being flat, it would have been walked over, was 52 feet by 26 feet. It was some 23 feet above the ground.
There is not much evidence as to the method of construction. We know that the roof was built from concrete joists and breeze blocks. The photographs show that as one faces the part of the main building which the one storey adjoins, on the right there is a 9-inch brick wall which rises to a height of some 23 feet, above a concrete ramp which led down into a subterranean garage. One side of the roof in question rested on the top of that wall. We do not know anything about the support on the other sides, and in the event that is of no importance. How the concrete joists were put in position is not explained, is as much, however, as we are told that they each weighed some 3 or 4 cwts. or more, the presumption is that they were lifted into position by a crane. It appears that once they were roughly in position, they were manhandled by the workmen into the exact position required in between the concrete joists, as I have said, there were the concrete blocks, which were so shaped that they fitted into the sides of the concrete joists. By the 14th December the roof had been nearly completed. As can he soon from the photographs, it was then very close to the main buildings having been started from the side furthest away from that building. Where were still two concrete joists to be put into position with breeze blocks between them; and here and there, as one can see from photograph B., some breeze blocks remained to be put into position; for example, in the forefront of the photograph there is a gap for breeze blocks very close to the brick wall to which I have referred.
On the morning of the 14th December 1963, the plaintiff and two other men had been working on the roof. They went on working late because there was some urgency to finish the work; when I say "late, I mean beyond the normal luncheon break. Immediately after luncheon the plaintiff and one of the other men went up on to the roof. The plaintiff got on the roof by means of a ladder inside the main building, and then walked across on to the roof. There is no evidence as to precisely how he met with his accident because no one saw it occur it is quite plain, however, that in the course of doing his work, or preparing to do his work, heslipped or tripped and fell over the side of the brick wall on to the concrete floor 23 feet below. Most unfortunately, as a result of the Injuries which he sustained, he died.
The learned judge's findings on this part of the case are as follows: "Nobody saw him fall, but I hold that it was quite clear that he was intending to resume work, and that belief of mine is fortified by the fact that when his unconscious body was found, he was wearing the gloves or mittens which were habitually worn for moving the breeze blocks, and usually, though not necessarily, worn for moving the concrete beams, and that these gloves, when he went upstairs, had been in his back pocket", Then he said: "I am satisfied that he returned to that corner' (I think there the judge is referring to the corner near the main building next to the sheer drop over the brick wall) "and he set about carrying on with his work even if he did not actually execute any work in pursuance of that intention". The deceased man was found on the concrete ramp below, but there was no evidence as to the precise position where he was found so it is impossible to say precisely from which point on the roof the man fell.
In those circumstances, the man being dead, his widow brought this claim, basing it upon common law negligence and breach of regulations 24 and 28 (1) of the Building (Safety, Health and Welfare) Regulations, 1948. It was conceded that the Building Regulations did apply in this case.
Common law negligence and regulation 28 really disappear from the case so far as this court is concerned. The learned judge found that there was no common law negligence, and that finding is not challenged. Regulation 28, which concerns the duty to keep every working platform free from unnecessary obstruction, also disappears from the case because the judge found that a steel bar (which, according to the plaintiff's case, had been an obstruction and a cause of the accident) was in reality no cause of the accident and had nothing to do with it. Again, the plaintiff does not challenge that finding of the learned judge.
The real and only point in this appeal turns upon whether or not the learned judge, who found in favour of the widow and awarded her a sum of upwards of £9,000 damages for the death of her husband, was justified in concluding, as he did, that the defendants were responsible for the plaintiffrs husband's death by reason of a breach of regulation 24 (1), which I will now read. "Guard-rails and toe-boards at working places. (1) Subject to paragraphs (3), (4) and (5) of this Regulation, every side of a working platform or working place, being a aide thereof from which a person is liable to fall a distance of more than 3 feet 6 inches, shall be provided with a suitable guard-rail or guard-rails of adequate strength to a height of at least 3 feet above the platform or place and above any raised standing place on the platform, and with toe-boards up to a sufficient height being in no case less than 8 Inches and so placed as to prevent so far as possible the fall of persons, materials and tools from such platform or place". There was no guard-rail or toe-board along the edge of the wall on which one side of the floor rested. There was a sheor drop of 23 feet against which no sort of precaution or safety measure had been provided by the defendants.
The defendants' case is that the dead man at the time of the accident was not working at a "working place". The defendants say that the roof as a whole nor any part of it was a "working place-" within the meaning of those words in regulation 24, and for this they rely upon certain dicta in the House of Lords in Gill v Donald Humberstone, reported in 1963 1 Weekly Law Reports at page 929, to which I will presently refer. I would start, however, by first referring to the case of George Ball & Sons Limited v. Sill, which is not reported in that Law Reports or in the All England Law Reports; the best report (although it is a somewhat tenuous one) is in Knight's Local Government Reports, volume 52 (1954) at page 508. That was a decision of the Divisional Court of the Queen's Bench Division. In that case a man had been working on a flat roof some 40 feet above the ground which, like the roof in question, had no protection at all at the sides to preventanyone falling from it. One of the workmen fall over the side and was seriously injured. The employers were prosecuted for a breach of regulation 24 of the Building Regulations and convicted. On a case stated to the Divisional Court, the then Lord Chief Justice (Lord Goddard), in dismissing the appeal, said: "I cannot see why I am not to give the words 'working place' the ordinary meaning of the English language, that is, a place where work is being done". A little later he said: "Of course, if he is working, say, in the middle of the roof, or well away from the edges of the roof, and through some extraordinary reason, perhaps owing to a crack in a rafter, or something of that sort, he falls, not off the aide but through the floor on to a floor below, I do not think the mere fact that there were no guard-rails up round the edge of the roof would make any difference, because failure to put them round the edge of the building would have nothing to do with the particular accident that happened". But, as he was working on that unguarded roof and fell off the edge, Lord Goddard had no difficulty in coming to the conclusion that there had been a breach of regulation 24, and Mr Justice Cassels and Mr Justice Slade agreed with him.
It was pointed out in Gill v. Humberstone that the definition of a working place given by Lord Goddard is not an exhaustive one, nor do I think that he intended it to be exhaustive; it was, however, perfectly sufficient for the purpose of the decision in that case. The House of Lords never suggested in their reference to George Ball v. Sill that it had been wrongly decided, nor did they in any way criticise what Lord Goddard had said save to point out that his definition was not exhaustive. It is obvious in my view that in order for a place to be a "working place" within the meaning of the regulation, it must be a place at which a...
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Ferguson v John Dawson & Partners (Contractors) Ltd
...had been required to do. The authorities Gill v. Humberstone (1963) 1 Weekly Law Reports 929, a decision of the House of Lords, and Kelly v. Pierhead Ltd. (1967) 1 Weekly Law Reports 65 and Boynton v. Willment (1971) 1 Weekly Law Reports 1625, decisions of this Court, say that a necessary c......
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...of the House of Lords in Gill v. Humberstone, reported in 1963 1 Weekly Law Reports at page 929, and to the decision of this Court in Kelly v. Pierhead Ltd., reported in 1967 1 Weekly Law Reports at page 65, in which the nature of a "working place" within the meaning of that term as used in......
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