Quinn v Burch Bros. (Builders) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE SALMON |
| Judgment Date | 08 March 1966 |
| Judgment citation (vLex) | [1966] EWCA Civ J0308-1 |
| Date | 08 March 1966 |
| Court | Court of Appeal |
[1966] EWCA Civ J0308-1
Lord Justice Sellers
Lord Justice Dahckwerts and
Lord Justice Salmon
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice Paull - London)
Mr. P.H. RIPMAN (instructed by Mr. Graham Dawson, Bromley, Kent) appeared on behalf of the Appellant (Plaintiff).
Mr. F.B. PURCHAS, Q.C. and Mr. A. BRADSHAW (instructed by Messrs. Hair & Co.) appeared on behalf of the Respondents (Defendants).
The plaintiff sought to recover damages for personal injuries in this action, which came before Mr. Justice Paull, on the basis of a liability on the defendants for breach of contract. The learned judge found for the defendants and in that, having heard the argument on this appeal, I have come to the conclusion that the learned judge was unquestionably right.
The contret which was set up and which is alleged to have been broken was a contract between the defendants, who were the main contractors, and the plaintiff and his colleague, Mr. Dunk, who were engaged on building work or the repairs which were taking place fey which the defendants ware the main contractors. The contract was with these two, who were acting in partnership, as sub-contractors. The facts are not really in dispute. No written contract was produced but it appears that for several years the plaintiff and Mr. Dunk (if I may describe them, as the judge did, as the firm) had been doing plastering in particular and kindred sorts of work for the defendants on their various building contracts.
Some time prior to the accident giving rise to this claim for personal injuries work had been done on the Ladywell Institution in Lewisham, the main work being, as I understand it, the installation of some heating apparatus. The firm did preliminary work which would asist the main contract and did various incidental subsequent work when the installation had been made in filling up holes which had been made in the concrete and work of the like character.
When the work commenced' I do not know but it has been accepted that when it did the equipment, the planting, I think also all the materials required by the firm were to be supplied by the defendants; that is, the contract was to use the firm's labour and pay for their work on a basis which was at one time an all-in sum but which for many years had been at a rate of 6s.0d an hour each. On occasions the firm employed someone to assist them.
At the outset of this work there was an arrangement whereby the defendants were to provide the material and the plant and the firm were to do the work. The question arose in this action as to what the precise contract was. I do not find any very satisfactory evidence of it or how it came about, whether it was expressly stated orally or whether it was a bargain which was to be inferred from the conduct of the parties. But the Court is relieved from considering that by what took place at the trial. It was agreed on behalf of the defendants that there was an obligation on the defendants to supply the plaintiff and his colleague with any equipment reasonably necessary for the work within a reasonable time of any request so to do. It appears that in the performance of it at the outset of the work some plant which was necessary was supplied. The work had to be done in all sorts of circumstances. Some would be done from the floor, some had to be done at ceiling level, and three step ladders, of dimensions which I do not think have been given but quite large step-ladders sufficient at any rate to give access to some work which had to be done at a height of 10 feet or more, had been made available. As would naturally happen in the course of work of this character, there came a stage when the firm could not usefully do any more until the main contracting work had proceeded further, and the two of them went off for a time.
On a Friday before the week in which the events happened which are the subject-matter of this case, the firm were asked to go back and conclude their work, filling up the holes that had been made. They returned on the Monday, which was the 17th September, 1962. When they returned there they could not find the three ladders–not any one of them, I think – which had been there before. The arrangement was that the firm would themselves decide what was the appropriate plant that they required to give access to their work and would provide themselves with it from any of the plant on the site which belonged to the defendants which was available, and if there was noneavailable they would ask for it.
It was a somewhat loose arrangement, and the first question is whether in an agreement of that sort there was anything sufficiently specific to indicate what was a reasonable time for the defendants to make provision for the plant. That was answered by the learned judge in favour of the plaintiff. He found that in the circumstances there had been sufficient time to enable other step-ladders to be provided, since the time was about to coma when the two men would want them.
The question arose on the Monday as to where the ladders were; and a Mr. Boston, the representative of the defendants who was their foreman, said "Well, they are on the site". It may well be that they were somewhere in the Institution building because work was being done, I gather, in other blocks than the one on which these two men had been called back to work on the Monday. But the ladders could not be found. When Mr. Boston was down there on the Monday he took the view that they could be found if they were looked for further and that there was no necessity to provide any more. On the Monday the ladders were not found. But Mr. Dunk, the partner, found a ladder. Quite where he got it from is not very clear. It may be that it belonged to the Institution. At any rate that was satisfactory for him to work upon. The plaintiff wan working on the floor of the particular room with which he was concerned and he did not need a ladder. That work continued until some time on the Tuesday. It appears that on the Tuesday Mr. Dunk, the partner, and a Mr. Kimber wont to the office of the defendants to ask about a ladder. There was a little confusion about the evidence but I think the learned judge took the view that that visit was made. The object of it was to request the defendants to provide at least one other ladder.
In this rather uncertain situation contractually the learned judge has found that there was a breach because during that morning, when the plaintiff wished to change his activities from the task that he had been on to making some repair orfilling up some holes in the ceiling, no ladder had been provided I doubt whether in all the circumstances I would have thought that constituted a breach of contract in the somewhat vague arrangement. I think I should have required that before it could be said that the defendants were in breach of contract the circumstances required the plaintiff, when he had come to the end of his work which was on the ground floor and found no ladder was there, to make an express request indicating to the defendants the situation in which he found himself, that he was held up. A telephone was at hand and he could have telephoned them. If he had done so, it is more than likely that the defendants would have provided what was required. But he did not telephone in that way, and the learned judge has held that the circumstances were sufficient to establish the request for further plant, in particular another step-ladder, and as it was not complied with that was a breach of contract.
If that is a breach of contract, what is the position in law? Damages can be claimed for breach of contract if damages had been caused. In fact no damage was caused to the plaintiff and his partner as it stood because they were to lose nothing financially by that fact. It would have meant only that the payment to them of 6s.0d. an hour would have been due from the defendants but that they would not have advanced the work for. which they were engaged. They would have made no financial loss. If there had been any prospect of financial loss it would have been their duty to minimise it. One cannot conjecture what might have been done. The obvious way to minimise damage for the failure to supply a ladder would have been to acquire another ladder of like kind. The plaintiff did not do that and did not seek to charge the defendants with any such loss which might have occurred by the firm having to acquire plant on their own instead of having it supplied for them. That would have been clearly an acceptable claim if that had taken place because of course their earnings were not based on having to provide their own material and plant but on its being provided.
But it is sought to say in this case - if there is any basis for the case - that because there was that breach of contract the defendants are liable not on the basis of damages for breach of contract flowing in the way I have indicated, with an obligation on the plaintiff to mitigate them, but on the basis of what in fact took place subsequently thereto. It is said that it could have been foreseen that what took place would...
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