Paul Glen Dew (Plaintiff/Appellant) v Slocombe & Butcher Ltd and Another
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EVANS,LORD JUSTICE WARD |
| Judgment Date | 01 May 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0501-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | QBENF 95/1030/C |
| Date | 01 May 1996 |
[1996] EWCA Civ J0501-5
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION (BRISTOL DISTRICT REGISTRY)
(HIS HONOUR JUDGE SMITH QC)
Royal Courts of Justice
Strand
London WC2
The Master of the Rolls
(Sir Thomas Bingham)
Lord Justice Evans
Lord Justice Ward
QBENF 95/1030/C
MR R STEAD (Instructed by Burrough & Co, Cardiff CF3 OEF) appeared on behalf of the Appellant
MISS S VAUGHAN-JONES (Instructed by Wansbroughs Willey Hargrave, Bristol BS99 7UD) appeared on behalf of the Respondents
I will ask Lord Justice Evans to give the first judgment.
The plaintiff, Paul Glen Dew, appeals against the judgment given on 13 June 1995, at Bristol, by His Honour Judge Smith QC, sitting as a Deputy Judge of the High Court.
The plaintiff claimed damages for personal injury against two defendantS. The first defendants were his employers; the second defendant was the driver of a van. The claim arose out of the collision between a load of timber which the plaintiff was carrying and the van on the morning of 12 February 1990 at his employer's premises. The claim was dismissed against both defendants. He now appeals but only in respect of his claim against the first defendants.
The accident occurred two days after the plaintiff's 19th birthday. He was employed as a sand and aggregate bagger by the first defendants who are builders' merchants. They have large premises at Searle Crescent, Winterstoke Commercial Centre, Weston-Super-Mare. He was also employed as a general labourer.
On the morning in question, the plaintiff was instructed to load pieces of timber onto a lorry which was waiting at the yard before taking them off for delivery to a customer. He was told that there was a measure of urgency about it, or, as the first defendants' managing director, Mr Cozens, accepted, there was inevitably, in the circumstances, a degree of pressure of time upon him.
The relevant load which he was carrying consisted of four pieces of 3" x 2" timber, each of which was as long as 3. 9m (12`8"). He carried them as one. Therefore, the total length of the load was 12`8". It had a substantial weight which the learned judge calculated (and it was accepted) as approximately 46 kilograms. The plaintiff carried it, inevitably, at about its mid length in order to get the correct balance. It followed, therefore, that the timber extended about 6` ahead of him and about 6` behind.
The leading edge of the timber came into contact with the side windscreen of the passenger side of the van as it was being driven past. In order to explain how that collision occurred, it is necessary to describe the relevant part of the site. That is an area in front of a large storage warehouse which consists partly of concreted roadways, which appear to have been about 18` wide, and partly of areas between the roadways which are surfaced with tarmac. It follows that there was, and is, a clear distinction between the areas used as roadway and the other areas which were used for storage or parking.
The tarmac areas, which were used for storage, were used in particular for storing large numbers of pallets of bricks of the familiar kind. These were about 3`7" square and about 3` high. The pallets were arranged in lines up to three, or possibly more, pallets high and with aisles between the lines which were at right angles to the roadway. Since the pallets were at the relevant time stacked not less than two pallets high, certainly at the end of the line of pallets which abutted the roadway, it followed that their total height at that point was not less than about 6`. They were stacked to the edge of the roadway and the aisle was said to be, on the evidence, 14` wide.
Having collected the timber in question from the timbershed, the plaintiff had to pass along one of these aisles. When he reached the roadway at the end of the aisle, he intended to turn diagonally right across the roadway towards where the lorry was parked. As he emerged from the aisle, the van was driving from his right to left, and on its nearside of the road, about 1m from the edge of the road and, therefore, about the same distance from the end of the line of pallets. The dimensions were such that the plaintiff could not see whether any traffic was approaching until he had cleared the pallets. By that time, the leading edge of the timber would be about 6` into the roadway, unless he did what he could and should have done, that is, to swivel the timber through 90 degrees across his front so that it was parallel to the road and did not protrude into the road before he himself reached the edge of the roadway and could see whether it was clear or not.
There were two different accounts of how the collision occurred. The plaintiff said that he was already in the roadway when the van collided with the leading edge of the timber. He said that the van could have slowed down and avoided the collision if the driver had seen him in time. The result of the collision was that the timber was jerked sideways causing significant injuries to the plaintiff's wrist, although he worked for the rest of the day and only gradually became aware of how serious the injury was.
The van driver's account, on the other hand, was expressed by the judge at page 12E of his judgment:
"So the account put forward by the Second Defendant is that, so far from the Plaintiff being 3 foot into the road in full view with the front of the wood effectively 9 feet into the road, what happened is that as he was driving along about a yard from the pile of bricks the Plaintiff continued to walk forwards at a time when he could not see where he was going, and in effect went into the side of the van as it was going past."
The judge unequivocally preferred the second defendant's account. He found that that was how the accident had occurred. He said at page 17A:
"I have no hesitation in coming to the conclusion that the version put forward by Mr Newton is correct. I am afraid the fact of the matter is that I do not accept that the Plaintiff did approach the end of this alleyway cautiously and at a diagonal and then only gingerly emerged upon the roadway. It would have been perfectly possible for him…."
The judge then continues by saying that it was perfectly possible for the plaintiff to turn the timber sideways in the manner already described. The judge continued:
"I am afraid the fact of the matter is that I come to the conclusion he did not do that; he just went straight on and did not give a moment's thought to there being anything on the road at all."
The judge also made it clear that, in his view, the plaintiff had been negligent. He said at 18F:
"So I am sorry to say that I have come to the conclusion this accident was the Plaintiff's fault. He should have realised that it was highly dangerous to go straight out onto a roadway with the wood sticking out as far as this. I am afraid I think it just did not occur to him that anything would be going past, and that is how the accident occurred."
The second defendant, therefore, was exonerated. The claim against him was dismissed and there is no appeal against that part of the judgment.
The learned judge then turned to consider the allegations which were made against the first defendants. He said at 19A, simply this:
"I hope I have dealt with all the allegations which have been made by the Plaintiff against his employers. I do not, for example, conclude that the employers are at fault for not slowing the traffic down by having a sleeping policeman."
That was one of the specific allegations that had been made. It was connected with the plaintiff's allegation that the vehicle had been travelling faster than it should have been. The learned judge rejected that application of speed and said:
"I do not think this van was going too fast. I do not think the employers are at fault in that respect."
Similarly, he dealt with another specific matter which had been raised in the evidence. He said:
"Insofar as it is alleged that the lines of bricks impinged upon the road to make the road narrow, I have the greatest difficulty in accepting that this line of bricks did encroach upon an 18 foot roadway, and therefore I reject the suggestion that the employers are liable because the roadway had been encroached upon, thereby making it dangerously narrow."
That was all that the judge said about the claim against the first defendant which he proceeded, likewise, to dismiss.
With regard to the second of the passages just read, that is now wholly irrelevant and that finding is not challenged. It is clear from the judgment as a whole that it proceeded on the basis that the pallets at the relevant place came to the edge of the roadway, although they did not encroach upon the roadway, and the stack was two pallets high.
In support of the plaintiff's appeal, Mr Stead submits that the fact that the plaintiff was careless, even negligent, is not by any means the end of the story so far as his claim against the first defendant is concerned. He submits that it is the employer's duty to provide a safe system of work and safe premises at which the plaintiff can work, or at least to take reasonable care to do so. That includes guarding against foreseeable risks of harm, even if that risk might involve some degree of carelessness by the plaintiff. He relies upon the well-known statement of the law by the House of Lords in General Cleaning Contractors Ltd v Christmas [1953] AC 180, and in...
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