McArdle v Andmac Roofing Company

JurisdictionEngland & Wales
JudgeLORD JUSTICE SELLERS,LORD JUSTICE DAVIES,LORD JUSTICE EDMUND DAVIES
Judgment Date23 November 1966
Judgment citation (vLex)[1966] EWCA Civ J1123-2
Date23 November 1966
CourtCourt of Appeal

[1966] EWCA Civ J1123-2

In The Supreme Court of Judicature

Court of Appeal

(Civil Division)

(From: Mr. Justice Cusack - Liverpool)

Before:

Lord Justice Sellers

Lord Justice Davies and

Lord Justice Edmund Davies

Between:
James Thomas Mcardle (suing by his wife and next friend Joan McArdle)
Plaintiff
and
Andmac Roofing Company (sued as a firm)
first Defendants
and
Pontin (Contractors) Limited Second
Defendants
and
F. Bamber (Male)
Third Defendant
and Between:
James Thomas Mcardle (suing by his wife and next friend Joan McArdle)
Plaintiff
and
Newton Brothers (sued as a firm)
Defendants

Mr. E.W. EVELEIGH, Q.C. and Mr. PATRICK BENNETT (instructed by Messrs. Hewitt, Woollacott & Chown) appeared on behalf of the Appellants the Second Defendants.

Mr. R.M. BINGHAM, Q.C. and Mr. T.H. PIGOT (instructed by Messrs. Gregory, Roweliffe & Co., Agents for Messrs. Arthur D. Dean & Co., Manchester) appeared on behalf of the Respondent-Plaintiff.

Mr. CM. CLOTHIER, Q.C. and Mr. PETER MACNAIR (instructed by Messrs. Barlow, Lyde & Gilbert) appealed on behalf of the Respondents the First Defendants (Appellants against all other parties).

Mr. W.D.T. HODGSON, Q.C. and Mr. G.B.H. CURRIS (instructed by Messrs. Stunt & Son, Agents for Messrs. Raw thorn, Ambler & Brown, and Preston) appeared on behalf of the Respondents Newton Brothers (Appellants against all other parties).

LORD JUSTICE SELLERS
1

When the plaintiff's claim for damages for personal injury and consequential loss came before Mr. Justice Cusack at the Liverpool Assizes in June of this year there were three defendants in the consolidated actions. Judgment for £19, 866. 2s. 2d. was entered against all the defendants and this amount was apportioned between them as to the damages and costs of the plaintiff 30 per cent, to the first defendants (to whom I shall refer as "Andmac"), 50 per cent, to the second defendants, Pontin, and 20 per cent, to the third defendants, Newton.

2

The assessment of the damages suffered by the plaintiff was unchallenged, and it reflects the grave injuries which the plaintiff received when he fell in the course of his work through an open part of a roof some 12 feet to the ground below. His life has been transformed, as the learned judge said, "from an active, cheerful young man, who was described as loving life, into a tragic wreck". How easily this could have been prevented by elementary precautions of care in a situation which so clearly demanded safety precautions.

3

All three defendants appeal in some measure. Each of them seeks a finding that the plaintiff himself should be held partly liable on account of contributory negligence. Apart from that Andmac's accept the liability held against them. Both Pontin and Newton submit, at least in form, that they owed no duty to the plaintiff and, further, that if they did owe a duty there was no breach of it by them respectively, and in the event of some liability on them they contend that their respective proportions are excessive. They would put the blame or the greater part of the blame on Andmac.

4

A somewhat detailed statement of the facts seems to be called for on the main legal issue raised and once stated the facts leave little doubt of the answer.

5

There is a large organization which is widely known as Pontin's, whose precise legal structure was not in evidence,. Through a variety of companies it apparently conducts holidaycamps at various places throughout the country. One is at Black pool, which is owned by Squires Gate Black pool Holiday Camp Limited. The various camps may require new buildings, extensions or structural alterations from time to time and it was to meet these requirements that the second defendant company, Pontin (Contractors) Limited, was established by the group. It consists of only three or four employees with a Mr. Armistead, a constructional engineer, as its head. This company acts for the various building owners within the group and makes the arrangements necessary for the contemplated work to be done. Mr. Armistead and his associates do not seem to employ head contractors to do the work by themselves or their sub-contractors on an inclusive contract - or at least they did notion this occasion - but Pontin's place contracts direct for the projects to be undertaken so that there may be, as here, a number of small contractors without any other coordinating or directing authority than Pontin themselves.

6

In the spring of 1962 considerable work was being undertaken at the Black pool Camp. In particular, as far as this case is concerned, a flat-roofed one-storey building which had been a dining hall was being converted into a billiard hall. On the existing roof were two parallel roof-lights just over 100 feet long and 8 feet wide, raised from the roof by a side wall or coming 18 inches high. The glass in those strips had to be removed and then one strip had to be completely filled in and the other similarly filled in except for some 28 feet atone end which was to be left for some new sky light over some lavatories which were to be constructed below them.

7

The arrangements made by Pontin for this work were that Pontin were to supply the joists to be placed across the strips at intervals and the "Strait" boards which were to be placed on top of the joists to fill in the two strips. These boards were 4 feet wide and approximately the size to go across, although they had to be fitted or packed. The material was I apprehend brought by Pontin's somewhere convenient to the site where it wasrequired for the laborers' work. Newton Were a small local firm of joiners and shipwrights who had been called upon to provide labor to assist in and expedite the erection of some chalets within the camp. Mr. Newton was asked to provide men to remove the glass from the two strips and to re-cover the area (except for the skylights) with the joists and "Stramit" boards provided by Pontin. This was an oral contract made between Mr. Armistead of Pontin and Mr. Newton, and for supplying the men with their own tools to do this job the price (derived from an invoice) was £27. 10s. Do. This was the price for the bars labor and nothing was said about and no monetary provision was made for, safety precautions in a task which meant making with constant change of size a large cavity in each strip as the work of the removal of the lights took place and leaving cavities until the fitting in was completed and at the conclusion, until the skylights were erected, leaving the cavity 28 feet long at the end of one strip.

8

Mr. Armistead of Pontin's directed when and where the work of Newton was to be done and there is some evidence that he directed the detail or manner in which it was to be done. There was no specification in writing and perhaps the work hardly needed one and Mr. Armistead may well have stated to Newton's men where he wished nails to be put and suchlike. He men with their skill were to do the work Pontin required. That would be the same if they had been employed individually and directly as servants with Mr. Newton as foreman. Payment by Pontin was in bulk instead of individually. It was said in argument, and I think rightly, that the Newton men were as nearly servants for the time being of Pontin, using Pontin's material and laying it as Pontin desired, as could be found short of their being held to be their temporary servants. It was not pleaded or contended that the Newton men should be treated as temporary servants of Pontin's, although so to have treated them might have fitted in much batter with all the statutory provisions and regulations for safety. As Mr. Clothier submitted, the larger unit, as is to beseen in the case of large main contractors, employing a labor force directly of. Skilled and unskilled, are better able to meet the obligations as to safety and welfare which statutory provisions and reasonable care demand. Co-ordination where there are multiple trades (even only a few) end varying activities on the one site seems essential for safety. This falls normally on the main contractor, who can allocate work and responsibility between sub-contractors.

9

It should be remembered that Mersey Docks & Harbor Board v. Coggins & Griffith (Liverpool) Ltd. and not her ( 1947 Appeal Cases 1) did not rule out the possibility that a man in the general permanent employment of one employer may be lent temporarily so as to be treated as the servant of the one whose work he was undertaking. The case only stated it to be a "heavy burden of proof". It may be that the decision did not sufficiently recognize the advantages where there is "team-work" where an employer's own servants and "borrowed" labor work together in a joint effort or, as here, where labor alone is hired, in having responsibility placed on the employer undertaking the process or operation for which the borrowing takes place. The contract in Mersey Docks & Harbor Board which provided that the crane men provided by them should be the servants of the hirers recognized that advantage. I do not think it was entirely a financial arrangement. Donovan v. Lading, Wharton & Down Construction Syndicate Ltd. ( 1893 1 Queen's Bench 629) had been law for a long time and it may be that some of the statutory provisions have been built up on the basis of that decision and do not sufficiently or clearly therefore deal with circumstances such as have arisen here.

10

The work Newton's men were doing came under the Building Regulations, 1948, and the employers for that work (whoever they were) were at the time of the accident in broach of Regulation 30 and would have been liable if one of the Newton men had fallen and been injured. No provision had been made in the contract of hire of labor for any fence or barrier, either in the cost oflabor-lime or the material to be supplied by Pontin. The injured plaintiff was employed by Andmac and any claim by her., therefore, to succeed...

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