Quinn v J. W. Green (Painters) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WILLMER,LORD JUSTICE SALMON,LORD JUSTICE DANCKWERTS |
| Judgment Date | 15 October 1965 |
| Judgment citation (vLex) | [1965] EWCA Civ J1015-2 |
| Court | Court of Appeal |
| Docket Number | 1962. R. No. 317. |
| Date | 15 October 1965 |
[1965] EWCA Civ J1015-2
In The Supreme Court of Judicature
Court of Appeal
Appeal from Order of Howard J. dated 31st March, 1965.
Revised
Lord Justice Willmer
Lord Justice Danckwerts and
Lord Justice Salmon
Mr RONALD E. HOPKINS (Instructed by Messrs Herbert Smith & Co.) appeared on behalf of the Appellants (Defendants).
Mr LESLIE JOSEPH (Instructed by Mr Stuart C. Myers) appeared on behalf of the Respondent (Plaintiff)
I will ask Lord Justice Salmon to deliver the first judgment.
The plaintiff was a foreman painter in the employ of the defendants in 1961. At that time the defendants were carrying out a contract to paint the interior of the Victoria and Albert Museum. It appears from the evidence that the defendants had a considerable stook of scaffolding, conisting amongst other things of trestles and boards. They were in a large way of business, and, not uncommonly, they were working on upwards of a hundred sites at the same time. It sometimes happened that there was a shortage of plant at one or other of these sites. During the week preceding the accident the plaintiff had been working on scaffolding which had been borrowedfrom the Ministry of Works. The plaintiff gave evidence, which was accepted by the learned judge, that shortly before the 3rd January 1961 he had told a Mr Baylies, who was the defendants' supervisor, that he believed that the Ministry of Works would be withdrawing the scaffolding which he had been using, and he asked Mr Baylies whether It would be in order for him to borrow some high trestles and planks which he would be shortly requiring from one of the other contractors working on the site. Mr Bayliss authorised him to borrow that equipment and use it. Accordingly the plaintiff did borrow two high trestles and planks from one of the other contractors. Before he borrowed this equipment he inspected it, and as far as he could see the equipment was completely sound and suitable for the purposes for which it was required. There can be no doubt on the evidence accepted by the learned judge that although one of these treaties was defective, the defect was a latent defect and would not have been discernable by any reasonable inspection.
The plaintiff and another man working under him put up the trestles at the place where they were going to work, and also put up some planks resting on the two trestles so that they might climb the trestles, get on to the planks, and do their painting. At some time on the 3rd January the job required the planks to be lowered somewhat. The plaintiff and the other man climbed on to one of the trestles in order to lower the planks. Whilst the plaintiff was standing on the trestle about 10 feet from the ground, the trestle collapsed, bringing the plaintiff down with it. He struck his head on the ground, as a result of which the retina of his left eye became detached. Several attempts were made by operation to repair the damage to his eye. This, however, proved impossible, and as a result the plaintiff la completely blind in his left eye, and will always be so.
The defect which caused the trestle to collapse is explained in the evidence of the plaintiff. He was asked: "What had gone wrong with It?" (that is the trestle) and he said: "Well, they hadjust split" (I think by that he must mean the two parts of the trestle) "where they are bolted together at the top. The wood just collapsed and fell to pieces. (Q) Are you saying that it had just split where they are bolted together at the wooden part or the metal part? (A) No, the wooden part".
The plaintiff brought this action claiming that the accident which he had had the misfortune to suffer was caused by the negligence of the defendants, and also by breaches of their statutory duty under Regulations 5 and 7 of the Building Regulations of 1948 which were then in force. The defendants denied negligence. They alleged contributory negligence on the part of the plaintiff. They denied that they had been guilty of the breach of any statutory duty and asserted that the plaintiff had been guilty of breaches of Regulation 7 (1); that if they had been guilty of a breach of Regulation 5, that breach was due solely to the act of the plaintiff, and that if they had been guilty of a breach of Regulation 7 (1), then the plaintiff's breach of that regulation had been co-extensive or co-terminous with their own.
The learned judge found that the defendants were guilty of Common law negligence and also of the alleged breaches of statutory duty He found that there was no contributory negligence nor any breach of statutory duty on the part of the plaintiff. From those findings the defendants appeal to this court. They also appeal from the award of £1,200 general damage, which they contend is excessive.
Dealing first with the finding of common law negligence, I for my part doubt whether that finding can be supported on the evidence. The common law duty of the defendants was to use reasonable care for the safety of their servant, the plaintiff. The question is, did they, in authorising him to borrow this equipment, commit a breach of that duty? It is to be observed that this was not a very complicated piece of equipment. It consisted of trestles and boards, the like of which the plaintiff had been using for the whole of his working life, and with which hewas accordingly very familiar. Moreover, the plaintiff was a foreman painter of considerable experience. There is nothing to show that the contractors from whom the material was borrowed were other than contractors of high repute. I doubt whether it is negligent to authorise such a man in such circumstances as those I have stated to borrow equipment of this kind. There was clearly no contributory negligence on the part of the plaintiff, and the contrary has not been argued before us. As I understand the argument for the defendants, It is conceded that they were in breach of Regulations 5 and 7. What is argued, however, is that the plaintiff cannot recover in respect of those breaches for the reasons which I have already indicated.
I will deal first with Regulation 5, which reads as follows: "Suitable and sufficient scaffolds shall be provided for all work that cannot safely be done on or from the ground or from part of the building, or from part of a permanent structure or from a ladder or other available means of support". I think that is all I need read from Regulation 5. I ought at this stage also to read the relevant parts of Regulation 4s "It shall be the duty of every contractor and employer of workmen who is undertaking any of the operations to which these Regulations apply (1) to comply with such of the requirements of Regulations 5-30 … provided that the requirements of the said Regulations shall be deemed not to affect any workman if and so long as his presence in any place is not in the course of performing any work on behalf of his employer or is not expressly or impliedly authorised or permitted by his employer; (11) to comply with such of the requirements of Regulations… as relate to any work, act or operation performed or about to be performed by such contractor or employer of workmen; and It shall be the duty of every contractor and employer of workmen who erects or alters any scaffold to comply with such of the requirements of Regulations 5-30 as relate to the erection or alteration of scaffolds having regard to the purpose or purposes for which the scaffold is designed at the time of erection or alteration… It shall be the duty of everyperson employed to comply with the requirements of such Regulations as relate to the performance of an act by him and to co-operate In carrying out Farts II to VII of these Regulations and if he discovers any defect In the scaffolding, plant or appliances to report such defect without unreasonable delay to his employer or foreman or to a person appointed by the employer under Regulation 98".
In my judgment it is quite plain that the provisions of Regulation 5 Impose a duty upon the employers and no duty upon the workman; that regulation does not relate to the performance of any act by a workman.
There has been a good deal of argument before us as to whether the defendants provided scaffolding of any kind. They quite clearly did not provide any scaffolding which they owned themselves. I do not, however, consider that It is necessary that scaffolding to be provided under this regulation shall be the property of the employers. Plainly they would be complying with the regulation If they hired scaffolding; in that sense they would be providing it. For myself, I do not see why, merely because they had borrowed it, it could be said that they had failed to provide it. What happens if, in a case such as this, the workman says: "The contractor is willing to lend us the scaffolding. May I go and borrow it?". It is not necessary for the decision of this case to express any concluded view as to whether, in those circumstances, the employers can be said to have provided scaffolding within the meaning of the regulation. For my part I am inclined to think that in circumstances such as these they are providing scaffolding within the meaning of the regulation.
I say that it is not necessary to decide this point because it is abundantly plain that, even if they have provided scaffolding, they have not provided suitable and sufficient scaffolding. The scaffolding which was provided was clearly unsuitable because it had the defect to which I have referred, and the regulation puts an absolute duty on the employers to provide suitable scaffolding.
On the assumption that the defendants did provide scaffolding, I cannot see how it is even arguable that they can escape from their liability to provide suitable scaffolding by...
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