Lloyde v West Midlands Cas Board

CourtCourt of Appeal
JudgeLORD JUSTICE DAVIES, LORD JUSTICE KARMINSKI, LORD JUSTICE MEGAW
Judgment Date12 Mar 1971
JurisdictionEngland & Wales

[1971] EWCA Civ J0312-1

In The Supreme Court of Judicature

Court of Appeal

(On appeal from judgment of Mr Justice Bridge, Shrewsbury, dated October 15th, 1970).

Before:

Lord Justice Davies

Lord Justice Karminski and

Lord Justice Megaw

Lloyde
and
West Midlands Gas Board

MR ANDREW RANKIN, Q.C. and Mr I. BLACK (instructed by Messrs. Plesse & Sons, agents for Messrs. B.J.D. Hayes & Son, of Shrewsbury) appeared for the appellants (defendants).

MR DOUGLAS DRAYCOTT, Q.C., Mr NORMAN MYERS and MR ANTHONY McGeorge (instructed by Messrs. Robbins, Olivey & Lake, agents for Messrs. R.A. Clarke & Sons of Wellington Telford, Salop) appeared for the respondent (plaintiff).

LORD JUSTICE DAVIES
1

This is the defendants' appeal from a judgment of Mr Justice Bridge given at the Shropshire Assizes at Shrewsbury on 15th October, 1970. The action arose out of a serious accident suffered by the plaintiff at his home at 13, Mount Gilbert, Wellington Telford, on 5th January, 1968, when, as a result, as the judge found, of an explosion of gas and air, the plaintiff suffered very severe burns. The judge found that the accident was due to negligence on the part of the defendants, and awarded to the plaintiff a total of £12,658 damages plus interest. That sum was made up of £1,158 agreed special damages, £500 for future loss of earnings and £11,000 general damages. From that judgment the defendants appeal. They submit that on the evidence there should have been judgment for them, or alternatively that. In circumstances which I shall mention, there should be a new trial on the issue of liability. They also contend that the award of £11,000 for general damages was excessive and should be reduced.

2

Before I come to the story of the accident, I must emphasise that, in the light of the decision at which we have arrived, namely, that there must be a new trial, any statement of fact which I may make must not be taken as in any way conclusive and no observation of mine should be taken as approving or as disapproving any of the findings of the learned judge.

3

Mr and Mrs Lloyde moved into their house some time in 1965. At the rear of the house, as can be seen from the plan, and separated from the kitchen by a narrow passage there is a small outhouse, some eight feet square. In this outhouse were situated the gas meter and the electric meter. In it at the time of the accident were stored the plaintiff's moped and asack of potatoes. It also contained a took chest and a cupboard. It could be illuminated by a single electric light bulb, the switch of which was just to the left of the door as one entered. The door had no handle but could be opened by turning the key which was normally left in the lock.

4

When the Lloydes moved in, the gas meter, which was a coin prepayment one, was found to be somewhat corroded and was therefore replaced by another one. Sometime before April 1967 the meter was changed again and was replaced by a quarterly credit meter. I omit for the moment the allegations made by and on behalf of the plaintiff as to the symptoms displayed by this gas installation during the months and years before the accident.

5

On the evening of 5th January, 1968, according to the plaintiff and his wife, they were sitting in the kitchen having their tea when they heard a hissing, fizzing or bubbling noise. The plaintiff was intending to go to the outhouse to collect a tool and so he combined this errand with an investigation of the source of the house. He opened the door of the outhouse and switched on the light. There was an immediate explosion and he was enveloped in flames. When assistance arrived, flames were gushing from the gas service pipe which in fact, when the flames were later extinguished, proved to be gas-tight; but it would, appear that the meter and the pipes leading to it from the main tap and from it to the house had disintegrated. That, in very brief outline, is what happened.

6

The action took a somewhat curious course. Paragraph 2 of the Statement of Claim alleges that a violent explosion of gas occurred. But the particulars of negligence, supported as they were by the evidence called on behalf of the plaintiff,were in substance confined to the allegation that from the spring of 1966 to the end of 1967 Mrs Lloyde had made constant complaints to the defendants of leakages and smells of gas and that the defendants had failed to deal with those complaints or to pat right the trouble. For good measure - and this Is now of importance - there was thrown in the statement that "so far as may be necessary the plaintiff will rely on the doctrine of res ipsa loquitur". The Defence denied that there bad been any explosion, denied that there had been any leakage of gas and denied that the outbreak of fire in the outhouse had been caused by the gas apparatus. In effect they were seeking to say at the trial that the fire and explosion. If any, were due not to any escape of gas but to same other cause such as the escape of petrol vapour from the plaintiff's moped.

7

The judge, however, found that there had been an explosion of gas and air and that this was caused by a failure of the apparatus. But, no less importantly, he found that there had been no perceptible gas leak in the outhouse prior to the date of the accident and entirely rejected the evidence that there had been complaints by Mrs Lloyde to the defendants at any time since before April 1967. The suggestion that those complaints had been made, the gravamen of the plaintiff's case, was persisted in right up to the end of the evidence.

8

The case for the plaintiff as presented in this court was entirely based on the principle of resipsa loquitur. But I can find no sign in the judgment that that argument formed any part of the plaintiff's case in the court below. At page 10C of the Judgment the learned judge said: "It is conceded, and as it seems to me on the authorities rightly conceded, by Mr Draycott that he must establish a case of negligence on the facts: hecannot invoke any principle of absolute liability derived from or analogous to the case of Rylands v. Fletcher". This is far removed from the propositions that the happening itself was prima facie evidence of negligence and that the onus lay on the defendants to rebut that prima facie case. Again at page 11F the judge says. "I think it is a justifiable inference on the balance of probabilities that this was a failure of the apparatus, albeit a failure the precise nature of which will never be known, which is more likely to be due to a failure on the part of the Board either to instal the apparatus properly in the first instance or to maintain it at some time when it needed maintenance than to any other cause".

9

Mr Rankin for the defendants complains that there was no specific allegation of defective Installation and that (as appears to be conceded by Mr Draycott) there was no obligation upon the defendants regularly to inspect and maintain, their obligation in this regard being defined by paragraph 33 of the Third Schedule to the Gas Act, 1948, that is to prevent the escape of gas upon notification. Mr Draycott's riposte to that contention in this court is res ipsa loquitur: he says that if the defendants cannot explain the cause of the explosion and cannot show that it happened without negligence on their part the plaintiff is entitled to succeed.

10

Mr Rankin's a first contention is that this was not a case of res ipsa loquitur at all, since the gas apparatus was not "under the management" of the defendants (to use the words of Chief Justice Erie in Scott v. London & St. Katharine Dock Co. (1865) 3 Eurlston & Coltman 596 at page 601) or "in their possession and under their exclusive management and control" (to use the words of Lord Aitchison, Lord Juctice Clerk, in Marshall & Son v. Russian Oil Products Ltd., (1938) S.C. 773 at page 788. And he argues that, quite apart from the question whether there was any liability to maintain, there was no evidence of any failure to maintain and that as to the suggestion of faulty installation it was established that the apparatus had worked satisfactorily from the installation of the new meter early in 1967 until the date of the accident.

11

He further argues that, even if the case is one of res ipsa loquitur, the defendants have for the reasons indicated in the last paragraph discharged the task, not of showing how the accident happened but, of showing that there was no negligence on their part.

12

Various suggestions were made in the court below and in this court as to how the apparatus might have become damaged or weakened without any fault on the part of the defendants. For example. It was suggested that the practice of Mrs Lloyde of turning off the gas at the main tap whenever she left the house and turning it on again when she returned might have weakened the apparatus in some way. But no expert evidence was given about this. Incidentally the judge appears to have fallen into a slight error on this point. He said: "It may be that she did some time in the past turn the main tap off". But, as I understand her evidence, it was her regular practice so to do.

13

Again it was suggested that the...

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