London Graving Dock Company Ltd v Horton
| Jurisdiction | UK Non-devolved |
| Judge | Lord Porter,Lord Normand,Lord Oaksey,Lord MacDermott,Lord Reid |
| Judgment Date | 09 May 1951 |
| Judgment citation (vLex) | [1951] UKHL J0509-2 |
| Date | 09 May 1951 |
| Court | House of Lords |
[1951] UKHL J0509-2
Lord Porter
Lord Normand
Lord Oaksey
Lord MacDermott
Lord Reid
House of Lords
Upon Report from the Appellate Committee, to whom was referred the Cause London Graving Dock Company Limited against Horton, that the Committee had heard Counsel, as well on Tuesday the 20th, as on Wednesday the 21st, Thursday the 22d and Monday the 26th, days of February last, upon the Petition and Appeal of the London Graving Dock Company Limited, of Preston's Road, Poplar, London, E14, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 21st of December 1949, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to His Majesty the King in His Court of Parliament, might seem meet; as also upon the printed Case of Joseph Horton, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 21st day of December 1949, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the judgment of the Honourable Mr. Justice Lynskey of the 2d day of June 1949, thereby set aside be, and the same is hereby, Restored: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellants the Costs incurred by them in the Courts below, and also the Costs incurred by them in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is further Ordered, That the sum of £275 paid to the said Joseph Horton pursuant to the Order of the Court of Appeal of the 21st day of December 1949, be repaid by the said Joseph Horton to the Appellants: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Kings Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
This is an Appeal from an Order of the Court of Appeal who awarded damages to Mr. Horton and set aside a Judgment of the Honourable Mr. Justice Lynskey in favour of the Appellants.
The material facts are not in dispute and may be shortly stated as follows.
The Respondent was employed as a boilermaker and electric welder by the Thames Welding Company. By the 16th December, 1946, he had been employed for at least a month in the fish hold of a trawler known as the "Valmont" of which the Appellants were at all material times the occupiers.
The Respondent's employers had contracted with the Appellants to weld metal strips into position on the sides of the hold and it was their duty to provide and they did in fact provide the necessary staging for the Respondent and other workmen to work upon. The staging provided consisted of four boards about 20 ft. long, 11 in. wide and 3 in. thick laid fore and aft in the hold and resting upon two thwartship angle irons 5 ft. 5 in. from the bottom of the hold and about 3 1/2 in. by 3 in. in dimension. The boards were placed about 5 ft. apart and each outside board was about 18 in. from the side of the ship. The Respondent or any other welder who wanted to cross from one board to another could only do so by stepping on to one of the angle irons.
The Respondent and some of his fellow welders had made half-hearted complaints to the Appellants' charge-hand shipwright about the insufficiency of the staging before the 16th December, 1946, but, though some promises were made that he would see what could be done, no steps were taken to effect a change. On that date the Respondent in the course of his duty was standing on the starboard centre deal and was engaged in handing a tool box to another man on the starboard deal. For this purpose he placed one foot on to the angle iron and transmitted it safely, but in trying to get back his foot slipped with the result that he fell astride the angle iron and sustained injury.
In these circumstances the Respondent maintained that the Court of Appeal were right in holding the Appellants to be in fault and that he was entitled to recover the damages which, if recoverable, had been agreed at £275.
The claim was put in two ways. First, it was said that he was an invitee and the Appellants had not exercised the degree of care required in such a case. Secondly, it was said that upon the principle laid down in Donoghue v. Stevenson [1932] A.C. 562 the Appellants owed a duty to the Respondent to take reasonable care to avoid acts or omissions likely to injure him.
Under the first heading the duty towards an invitee was said to be to take reasonable care that the premises were safe or, alternatively, if the duty was not so high, at any rate to establish that the danger was appreciated by the invitee, and was freely undertaken by him with full knowledge of the risk he was running and unconstrained by any feeling which would interfere with the freedom of his will. In other words, it must be shown that he was volens within the meaning applied to that word in the phrase volenti non fit injuria as interpreted by Scott, L.J., in Bowater v. Rowley Regis Corporation [1944] K.B. 476.
The Appellants on their part contended that the duty of an invitor was of a lesser order than either of those claimed by the Respondent. In their submission they had fulfilled their duty if either they took reasonable care to make the premises safe or if the invitee had knowledge or notice of the danger.
My Lords, I have put the contentions on either side in a broad way because it is apparent that in one aspect the case demands a solution of the much discussed problem of the distance to which the burden imposed by the decision in Indermaur v. Dames (1866) L.R. 1 C.P. 274 is to be carried and in what manner Willes, J.'s dictum on p. 288 is to be interpreted. If the Respondent is right in saying that notice or knowledge is immaterial, that the invitor is under an obligation to use reasonable care to make the premises safe however manifest the risk may be, then unless the Appellants can show that the Respondent was volens they cannot escape liability. To this distance at least I understand Singleton, L.J., to have carried the doctrine in this case.
The dispute has raged now for many years round Willes, J.'s language "that he, using reasonable care on his part for his own safety, is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger, which he knows or ought to know".
As was pointed out in argument and with truth. Willes, J.'s words are not embedded in a statute, but they have been carefully chosen, often acted upon and form the basis upon which the duty of an invitor is established.
I am not conscious that it has been stated in plain terms, but it is noticeable that what is declared to be the duty is not to prevent unusual danger but to prevent damage from unusual danger. It is in this consideration, as I think, that notice or knowledge becomes important: either may prevent damage though the unusual danger admittedly exists. As I take this view, I find the question what is unusual danger of less importance than it might otherwise be considered. To my mind danger may be unusual though fully recognised and I am not prepared to accept the view that the word "unusual" is to be construed subjectively as meaning unexpected by the particular invitee concerned. Moreover, I get little assistance from the alternative word "unexpected" suggested by Lord Phillimore (then Phillimore, L.J.), in Norman v. G.W. Rly. Coy. [1915] 1 K.B. 584: I think "unusual" is used in an objective sense and means such danger as is not usually found in carrying out the task or fulfilling the function which the invitee has in hand, though what is unusual will, of course, vary with the reasons for which the invitee enters the premises. Indeed, I do not think Phillimore, L.J. in Norman v. G.W.R. [1915] 1 K.B., 584 is speaking of individuals as individuals but of individuals as members of a type, e.g. that class of persons such as stevedores or seamen who are accustomed to negotiate the difficulties which their occupation presents. A tall chimney is not an unusual difficulty for a steeplejack though it would be for a motor mechanic. But I do not think a lofty chimney presents a danger less unusual for the last-named because he is particularly active or untroubled by dizziness.
In the present case undoubtedly there was a danger of slipping owing to the wide spacing of the planks, and that danger is, in my opinion, accurately described as unusual. But the existence of that factor is not in itself enough to ensure the success of the Respondent. Indeed, his advisers do not so contend. Contributory negligence on his part would destroy his claim and so, as I understand their concession, would a free and willing and unconstrained acceptance of the risk with full knowledge of its danger. It is in a consideration of this last concession, as I think, that the real contest lies. Contributory negligence may be disregarded. No act of the Respondent could be so described.
The plea volenti non fit injuria does not appear in the defence, nor, as I explain hereafter, was it, in my opinion, necessary for the Appellants to prove such facts as would warrant a finding to that effect, but in any case even if it was incumbent on the Appellants to establish that the Respondent undertook the risk willingly and without constraint, I do not think a formal pleading to that effect was...
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