Quintas v National Smelting Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE WILLMER,LORD JUSTICE DANCKWERTS |
| Judgment Date | 03 February 1961 |
| Judgment citation (vLex) | [1961] EWCA Civ J0203-1 |
| Date | 03 February 1961 |
| Court | Court of Appeal |
[1961] EWCA Civ J0203-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Sellers
Lord Justice Willmer and
Lord Justice Danckwerts
Mr. DUDLEY COLLARD (instructed by Mr. W. H. Thompson) appeared on behalf of the Appellant (Plaintiff; Respondent on cross-appeal).
Mr. W.L. MARS JONES, Q.C. and Mr. DAVID STINSON (instructed by Messrs. Gascoin & Co.) appeared on behalf of the Respondents (Defendants; Appellants on cross-appeal).
: By this appeal the plaintiff seeks to increase the damages awarded to him by Mr. Justice Devlin (as he was) at Bristol Assizes in November, 1959. The defendants by a counter-notice seek to avoid all liability or to reduce the award. Every major issue at the trial has been challenged before us.
The judgment, in the result, was for £2,175 damages on the basis that the defendants had been in breach of a statutory duty which caused the accident and injury to the plaintiff and that the plaintiff's own negligence made him also responsible. The apportionment of responsibility the learned judge assessed as three-quarters to the plaintiff and one-quarter to the defendants so that the plaintiff only recovered one-quarter of the £8,700 total assessment of damages in the event of full liability.
The damages were made up of £7,000 general damages and £1,700 special damage and in respect of the se the appellant submitted that £7,000 was totally inadequate and that the apportionment was too unfavorable to him. The respondents did not submit that the total damages assessed were too high but they contended that if there were any liability on them at all it should be less than one-quarter.
The apportionment depends on the nature and extent of the defendants' breach of duty and of the plaintiff's own negligence and falls for consideration when the se have been established but on the question of amount the court without hearing argument for the respondents on the issue was satisfied that it could not interfere with the sum of £7,000 assessed as general damages.
The learned judge found and was justified in finding that the plaintiff was not incapable of work but that as a result of his injuries he could only do sedentary work. The plaintiff had since his accident received training as an inspector and if he eventually obtained a job of that sort his earnings might well be no less than his pre-accident earnings. The learned judge gave full weight to an offer of work made by the respondents at a late date but he did not treat it as compensation. This offer was much criticised by the appellant's Counsel and the plaintiff's disability for work and its attainment and the deprivations of the enjoyments of life were emphasized but the assessment of general damages was substantial and I see no reason to alter it.
The main question for consideration is how much, if any, of the total assessment the plaintiff should receive. The action was based on the alleged liability of the defendants both for negligence at common law and for breach of section 14 sub-sectional of the Factories Act, 1937. The judgment finds no negligence but a breach of the statute and both findings are in issue.
At the defendants' factory where the plaintiff was employed as a fitter the re was on the 28th June, 1955, the date of the accident, an overhead ropeway leading from a berthing place for vessels about half a mile into the factory. Along this ropeway buckets, spaced at intervals of 110 feet, were suspended and were pulled at about three miles an hour when fully in motion but they did not immediately reach that speed from stationary. The buckets normally carried ore or other material from one end and after depositing their contents where required returned empty on a continuous line.
Although it was alleged that the plaintiff was injured by a dangerous part of unfenced machinery singularly little evidence was given of the ropeway and its method of working, other than that to be derived from photographs restricted to the small part of it at the place of the plaintiff's accident.
There was it seems a machine somewhere which pulled a rope attached to the buckets. The bottoms of the buckets are above the ground some 22 ft. but at the scene of the plaintiff's accident they pass over a flat concrete roof which is 18 ft. above the ground so that the buckets are only 4 ft. above it. This is the roof of a crushing plant building. It is about 44 ft. long and the ropeway traverses it at a slight angle. Where it commences to pass over the roof in the direction of travel of the buckets it is at its centre about 4 ft. from the outer edge of the roof it where it leaves the roof it is about 11 ft. from the outside. At the exit side the full depth of the roof is about 27 ft. but not quite centrally situated on the roof is the magnet house, which protrudes over the roof about 14 ft. leaving only some 13 ft. of open roof over which the ropeway travels, being, at its centre, only about 6 ft. away from this building as it approaches and only 4 ft. at the othe end of its travel. As the buckets lie centrally on the rope the clearances at each end between the buckets and the magnet house are even less than that.
The magnet house is approached by a stairway inside the crushing house below. This gives access to the roof and the a pace or two across the roof gives access to the magnet house through a door opening on to the roof. As the roof is not protected at the edges, even if the re were no ropeway with travelling buckets creating a danger as the move across, it is would have been prudent to have protected those going to the magnet house in the course of work by means of some railing or warning or both. No doubt for this purpose, a handrail of spaced uprights with a top rail and a lower rail had been erected, but for years before the plaintiff's accident the portion nearest to the magnet house had been broken away so that both men and goods could and did pass through. The judgment finds that general user of the roof was unauthorised but the re seems little doubt on the evidence that it in fact took place. It was said that the rail was originally broken down in order to get goods into the magnet house and it was proved that the gap in the rail had been similarly used on two occasions shortly before this accident.
There was difficulty in getting some goods necessary for the magnet house and its maintenance up the stairway in the crushing house and in addition the dust the re was so great that masks had to be worn. Because of the se difficulties the rigger in charge of the operation had twice brought a replacement belt up externally by block and tackle and passed it into the magnet house. The last time this wasdone was the morning of the plaintiff's accident. The tackle took some time to fix up and dismantle and this was done within some 30 yards of the foreman's office window. No special arrangement was made by the foreman. It was left to the rigger to carry out the task and he did it in that way. If it was wrong the defendants must be responsible for that. Apparently the narrow gap between a passing bucket-and the magnet house, particularly at the nearest corner from which end the belt was lifted, was negotiated without mishap by the men avoiding the buckets. From time to time other men approached this flat roof externally mainly for maintenance.
It was clearly, I would hold, a place to which workmen had free access from the internal stairway and to which they came occasionally externally and to which they might be expected to come either on duty or casually when their duty took the to the magnet house.
The ropeway normally stopped for about ten minutes in the morning and again in the afternoon and for a long "break in the middle of the day but in the ordinary course of working it would stop and start intermittently. No whistle or other signal was given for the ropeway to start though no doubt for the wary it made a noise which could be heard.
In these circumstances the roof was, as the learned judge found, a dangerous place for a workman. He might be knocked down if unexpectedly struck by a bucket, even moving so slowly, and more particularly he might be knocked off the edge of the roof if he was situated near to it at the time of a blow.
That is what happened to the plaintiff. About 1.30 p.m., although the precise time is uncertain, he had finished the fitting of the new conveyor belt which had been brought up externally in the morning. He had been down by the internal stairway (by which also he had returned) to ask the foreman to come and pass this work. The plaintiff thought the foreman was to come in a short time but after waiting some time and as the time for a mid-day meal was well past, he went on to the roof's edge nearest to the foreman's window to try to summon the foreman or to attract a passer-by to inform him. There was a passer-by below but he was not readily receptive of the plaintiff's message and as this conversation was taking place the plaintiff was knocked off the roof by a bucket.
He was the standing in the way of the line of buckets. He said that when he came out from the magnet house the re was a stationary bucket almost opposite him that is about 26 or 27 ft. from the edge over which it would leave the roof. The ropeway had started up and the bucket was seen by the man below, who 3 shouted a warning but too late for the plaintiff to act.
The plaintiff was no doubt very unwise to move into the line of the ropeway, although it would have been safe so long as the buckets were stationary as they were when he went out. He ought not to have been unmindful that the might move whilst he was talking to someone below. But it seems to me that it was the kind of carelessness which might well be expected to arise in...
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