Mulready v J. H. & W. Bell Ltd
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE,LORD JUSTICE BIRKETT,LORD JUSTICE HODSON |
| Judgment Date | 20 May 1953 |
| Judgment citation (vLex) | [1953] EWCA Civ J0520-3 |
| Court | Court of Appeal |
| Date | 20 May 1953 |
| Docket Number | 1951 M. No. 2437 |
[1953] EWCA Civ J0520-3
In The Supreme Court of Judicature
Court of Appeal
The Lord Chief Justice of England
(Lord Goddard)
Lord Justice Birkett and
Lord Justice Hodson
Counsel for the Appellants, J.H. & W. Bell, Ltd.: MR H. I. NELSON, Q.C. and MR R.H. FORREST, Q.C. (instructed by Messrs Carpenters, Agents for Messrs Laces & Co., Liverpool).
Counsel for the First Respondent, Thomas Mulready: MR G.H. SPAFFORD for MR C.N. GLIDEWELL (instructed by Messrs Manches & Co., Agents for Messrs David Blank Alexandra & Co., Manchester).
Counsel for the Second Respondent, Orr's Zinc White Ltd.: MR B.S. WINGATE-SAUL (instructed by William Charles Crocker).
This is the judgment of the Court. This is an appeal from Mr Justice Pearson who gave judgment for the Plaintiff in the sum of £8,500 against the first Defendants, and at the same time entered judgment for the second Defendants. There is no appeal by the Plaintiff against that judgment, but the first Defendants appeal against the finding of the learned Judge that they were liable to the Plaintiff and against the amount of damages awarded. They also appeal by leave of the Judge against his Order directing that they should pay the costs of the second Defendants, contending that those costs should be paid and borne by the Plaintiff.
Dealing first with liability, Orr's Zinc White Ltd., the second Defendants, to whom we will refer as Orr's, were the owners of a building which was in the course of erection. When that building is completed, it will no doubt be a factory within the Factory Acts as it would house plant for the production of gas.
Bell & Company, the first Defendants, had entered into a direct contract with Orr's to supply and fix the sheets forming the sides and roof of the building, the steel frame of which was in course of erection by another Company who do not figure in this case. Bell & Company were not only to supply and fix the sheeting, but also to instal three ventilators in the roof, and they found it convenient instead of employing their own workmen, to carry out this work by a sub-contractor. Accordingly they came to a somewhat loose arrangement with a man named Bernard Keating who, together with his brother, had some experience of sheeting, to do the work for them. Keating was to engage and pay for what labour was required. Bell & Company paid him on a piece — work basis at a standard price of so much a foot or sheet.
Keating engaged labourers, of whom the Plaintiff wasone. He paid them and stamped their cards, and there is no dispute that these men, including the Plaintiff, were his servants and not those of Bell & Company. This work seems to have been supervised by Bernard Keating's brother Patrick, who certainly had no long experience of sheeting, as, until a year or two before the material time, his work had been that of a shop assistant.
The contract with Keating was arranged orally. There was no written document, and the Judge has found that Keating was to supply the labour and do the work while Bell & Company were to supply the necessary material and equipment, except hand tools. He described the arrangement as a sub-contract of a very partial and minor character, and he found that the work was to be done under the supervision and control, and in accordance with the instructions of Bell & Company, both with regard to the work to be done and the manner in which it was to be done. We are not clear as to what exactly the learned Judge meant by a sub-contract of a very partial and minor character. The sheeting and roofing of this building was a considerable job. We think he probably meant no more than that it was an informal sub-contract, and one in which the main contractor, that is Bell & Company, retained a considerable degree of control, more than would usually be exercised where a formal sub-contract had been executed. In any case there appears to have been undoubtedly a contract between Bell & Company and Keating for the execution of a part of the work which Bell & Company had undertaken for Orr's, and we propose to decide the appeal on that footing.
In the course of this work the Plaintiff who, as I have said, had been engaged and paid by Keating, fell from the roof, a distance of some 70 feet, and sustained severe injuries, it was not disputed that no suitable precautions had been taken to prevent him from falling as required byRegulation 31of the Building Regulations, 1948, made under the provisions of the Factory Acts.
Turning now to the Regulations, the words of Regulation 4 material to this case are: "It shall be the duty of every contractor and employer of workmen who is undertaking any of the operations to which these Regulations apply (ii) to comply with such of the requirements of ( inter alia) Regulation 31 as relates to any work, act or operation performed or about to be performed by such contractor or employer of workmen".
If reference is made to the full terms of the Regulation, it will be observed that the second paragraph differs in one important respect from the first which we have not set out. That paragraph refers expressly to the observance of those Regulations as affect workmen employed by the contractor or employer, while the second requires compliance with the requirements of certain Regulations, including No. 31, as relate to any work, act or operation performed or about to be performed by the contractor, and contains no reference to workmen employed by him.
Regulation 31 is in these terms: "Where work is done on the sloping surface of a roof and, taking into account the pitch, the nature of the surface and the state of the weather, a person employed is likely to slip down or off the roof, then unless he has adequate handhold or foothold or is not liable to fall a distance of more than 6 feet 6 inches from the edge of the roof, suitable precautions shall be taken to prevent his so falling".
Mr Nelson contended that the performance of the work on the roof was here performed by Keating as contractor and not by Bell & Company, and that consequently the latter could not be held to be in breach of the Regulation, He said there is no case to be found in the books where a head contractor has been held liable in these circumstances, andwhile that appears to be so, equally there is no case which decides that he is not.
The learned Judge decided this case on a somewhat narrow ground, namely, that here Bell & Company had not divested themselves of the control and direction of the work so that they could be regarded as themselves performing the act of fixing the ventilators, which was what the Plaintiff was actually doing when he fell. He said: "They were still in effective charge and control. I hold that they wore undertaking the building operations and performing the act of fixing the ventilators within the meaning of Regulation 4". While, in our opinion, his judgment can be supported on those grounds, for ourselves we are prepared to decide the case on the ground that Bell & Company were the contractors who had agreed with the building owners to do the work, that is to say to perform the work on the roof and fix the ventilators. Accordingly, we do not see how it makes any difference whether they choose to perform it by their own workmen or by means of a sub-contract.
We cannot doubt that they had undertaken to perform the work, and had it not been done, or done in an unsatisfactory manner, it would have been against Bell & Company only, and not against their sub-contractors, that the building owner would have had a remedy. The duty is to provide suitable precautions to prevent men working on the roof from falling, and that is thrown on the person who performs the work who can no doubt choose how he will perform it. If then a duty was cast upon Bell & Company who had undertaken to perform the roof work, they cannot avoid it by sub-contracting.
The ordinary principle of law which, in our opinion, applies, is nowhere more clearly stated than by Lord Blackburn in Dalton -v- Angus, reported in 6 Appeals Cases at page 829, where he said: " … a person causing something to be done, the doing of which casts on him a duty, cannot escape from theresponsibility attaching on him of seeing that duty performed by delegating it to a contractor. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it".
This passage was referred to by the Court in Hardaker -v- Idle District Council, reported in 18961 Queen's Bench Division at page 335, in which all the cases on the subject were reviewed. It is true that in that case the duty was owed to the public, but the principle seems to us to apply whether the duty is owed to the public or only to a section of the public. It was followed in Penny -v- Wimbledon Urban District Council and Iles, reported in 1898 2 Queen's Bench Division at page 212, and in many other cases and, we think, applies here.
Mr Nelson relied much on the breach of the Regulations being a criminal offence and said that the result of holding Bell & Company liable in this case would be that they could be prosecuted and fined, when the fault was that of Keating, of which they might have no knowledge, and that while a contractor can exact an indemnity from his sub-contractor for the damages in which he may be cast in a civil action, he could get no...
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