Mersey Docks and Harbour Board v Procter

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeThe Lord Chancellor,Lord Shaw of Dunfermline,Lord Sumner,Lord Buckmaster,Lord Carson,.
Judgment Date13 March 1923
Judgment citation (vLex)[1923] UKHL J0313-1

[1923] UKHL J0313-1

House of Lords

Lord Chancellor.

Lord Shaw.

Lord Sumner.

Lord Buckmaster.

Lord Carson.

Mersey Docks and Harbour Board
and
Procter.

After hearing Counsel, as well on Thursday the 1st as Friday the 2d, days of February last, upon the Petition and Appeal of the Mersey Docks and Harbour Board, of the Dock Office, in the City of Liverpool, in the County of Lancaster, 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 30th of May 1922, 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 Elizabeth Procter, 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 30th day of May 1922, complained of in the said Appeal, be, and the same is hereby, Reversed, and that the Order of the Honourable Mr. Justice Branson of the 1st day of February 1922, thereby set aside, be, and the same is hereby, Restored: And it is further Ordered, That each party do bear and pay their own Costs incurred in the Court of Appeal, and also the Costs incurred by them in respect of the said Appeal to this House: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.

The Lord Chancellor .

My Lords,

1

This is an Appeal from an order of the Court of Appeal in England setting aside a judgment of Mr. Justice Branson and ordering a new trial.

2

The Appellants are the owners of the Birkenhead Docks, which include two large floating docks called the East and West Floats. On the 9th December, 1920, the Respondent's late husband Albert Procter, who was a boilermaker, was working for an engineering contractor on board the steamship "City of Genoa," then lying in the East Float. There was a dense fog during the whole of that day. At about 4.50 p.m. on that day Procter left the "City of Genoa," saying that he was going to the latrine, and it was understood that he would then return to his work. He was never again seen alive. On the following day his cap was found in the West Float between the bows of two ferry-boats which were moored near the north- east corner of that Float, and on the next day his body was found at or about the same place. His watch had stopped at five minutes past five o'clock.

3

The following further facts should be stated:—Procter's way from his ship to the latrine lay southward across a piece of ground separating the East and West Floats, and over a bridge at the southern end called "The Duke Street Bridge," the latrine being just on the other side of the bridge. This piece of ground measured about 85 yards from east to west, and about 50 yards from north to south. It was bounded on the east and west respectively by the two floats, and on the south by the waterway connecting them and the bridge over it. It was traversed from north to south, and slightly to the eastward of the centre of the ground, by two double lines of rails leading to and over the bridge, the rails being laid flush with the ground in granite setts, and the ground on each side of the setts being rough ground. It was said, and was not denied, that the site of the railway was used as a public highway from Seacombe to Birkenhead; and it was lighted by lamps, which were alight on the evening in question. Round three sides of this piece of ground where it was bounded by the two floats and the waterway between them, and at a distance of about 12 feet from the dockside, there was a line of stanchions placed at intervals of about 15 feet from one another, and chains were provided to hook on to these stanchions and hang between them. Whether the chains were intended for the protection of pedestrians or only for the safety of wheeled traffic using the area of ground, is not stated; but the latter appears the more probable reason. The chains were often taken down for the purpose of affording access to the quay; but persons employed about the docks had instructions to see that the guard chains were in position and to replace any which happened to be out of position. The chain directly opposite to the place where Procter's body was found had been detached for some days, apparently for the convenience of some men who were at work on some alterations to the quay, and was curled round the stanchion, so that access to the dock from the area of land was uninterrupted at that point. Some heaps of gravel and other obstructions lay near to, but not directly in front of, the opening. The edge of the West Float was parallel to and about 45 yards distant from the paved way and lines of rails.

4

Upon the above facts the Respondent, the widow of Albert Procter, brought an action against the Appellants under the Fatal Accidents Act, 1846, claiming damages on the ground that her late husband's death had been caused by the Appellants' negligence. The negligence alleged was that the quay was not fenced or guarded at the place where the deceased walked into the dock, and that no warning had been given to the deceased of the existence of this unfenced or unguarded part of the quay, and that this unfenced part of the quay was in its then condition in the nature of a trap, the existence of which was known to the Defendants and their servants and unknown to the deceased. These allegations were traversed by the Defendants, who also pleaded contributory negligence on the part of the deceased man.

5

The action was tried by Mr. Justice Branson without a jury; and after hearing the evidence for the Plaintiff he dismissed the action, stating that he was not satisfied that the omission to have the chain placed in position in the particular spot was negligence, and further that he was not satisfied that even had the chain been there the accident might not have happened. On appeal, the Court of Appeal by a majority (Bankes and Warrington, L.JJ., Atkin, L.J., dissenting) held that the Plaintiff had proved negligence on the part of the Defendants which had caused the death, and accordingly set aside the judgment of Mr. Justice Branson and ordered a new trial. Hence the present Appeal.

6

My Lords, it was contended on behalf of the Appellants that the finding of Mr. Justice Branson, being a finding of a trial judge on a question of fact, should not have been disturbed by the Court of Appeal. In my opinion there is no ground for such a contention. The duty of a Court hearing an appeal from the decision of a judge without a jury was clearly defined by Lindley, M.R., in ( Coghlan v. Cumberland L.R. 1898 1., Ch. 704) and by Lord Halsbury in ( Montgomerie v. Wallace James L.R. 1904, A.C. 73) and is no longer in doubt. The procedure on an appeal from a judge sitting without a jury is not governed by the rules applicable to a motion for a new trial after a verdict of a jury. In such a case it is the duty of the Court of Appeal to make up its own mind, not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of the witnesses comes into question, but with full liberty to draw its own inference from the facts proved or admitted and to decide accordingly. In the present case there is no question of the credibility of witnesses. The material facts, so far as they are known, are undisputed; and the Court of Appeal was at liberty and, indeed, was bound to draw its own inference from them.

7

The Respondent's case is rested on the well-established principle that where a landowner invites or induces a person to go upon his land, not as a bare licensee but for some purpose in which both have an interest, he must make reasonable provision for that person's safety. This rule was clearly stated in the judgment of Mr. Justice Willes in ( Indermaur v. Dames 1866, L.R. 1. C.P. 274; affirmed, L.R. 2 C.P. 311), where that learned Judge summed up the law as follows:—

"The class to which the customer belongs includes persons who go, not as mere volunteers or licensees or guests or servants, or persons whose employment is such that danger may be considered as bargained for, but who go upon business which concerns the occupier and upon his invitation, express or implied. And, with respect to such a visitor at least we consider it settled law 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; and that, where there is evidence of neglect, the question whether such reasonable care has been taken, by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact."

8

In the present case it is not disputed that the deceased man came within the class described by Mr. Justice Willes. He came upon the dock property and passed to and from the vessel where he was engaged upon business which concerned both the Dock Company and himself; and he was entitled, subject to using reasonable care on his part, to expect that the Dock Company should use reasonable care to protect him from any unusual danger known to the Company and not known to or reasonably to be expected by him. If so, the questions of fact which arise or may arise are three, namely—

(1) Were the Appellants guilty of...

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