Raymond William James v Alan Butler
| Jurisdiction | England & Wales |
| Judge | LADY JUSTICE SMITH,LORD JUSTICE RIX,LORD JUSTICE SEDLEY |
| Judgment Date | 17 May 2005 |
| Neutral Citation | [2005] EWCA Civ 1014 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 May 2005 |
| Docket Number | B3/04/2115 |
[2005] EWCA Civ 1014
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TAUNTON
(MR RECORDER STEAD)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Sedley
Lord Justice Rix
Lady Justice Smith
B3/04/2115
MR. T. GRICE (instructed by Messrs Harris Fowler) appeared on behalf of the Appellant.
MR. J. WATERS (instructed by Messrs Thring Townsend) appeared on behalf of the Respondent.
This is an appeal from the decision of Mr Recorder Stead made on 21st September 2004 at the Taunton County Court, whereby he dismissed the appellant's claim for damages for personal injuries. On 10th March 2000 the appellant, Raymond James, suffered a serious injury to his right eye when he was struck in the face by a piece of metal which fell from the partially constructed roof of a conservatory at his home in Taunton. It was being erected by his neighbour, the respondent, who had agreed to erect the conservatory for £300. The respondent was able to turn his hand to many types of building work. He had agreed to erect the conservatory for the appellant in his spare time.
The conservatory parts were purchased in the form of a kit which came with instructions. The kit comprised an aluminium framework with glazed panels. The appellant was to help the respondent with the work when he needed another pair of hands. It was to be built on the back of the appellant's house where french windows were already in place that would provide access. By the day of the accident the respondent had built the brick footings on which it was to rest and had put up the side panels in place. On top of the side panels was placed a horizontal framework which could carry the roof structure. The main roof ridge came out horizontally from the wall of the house directly above the French windows and extended to the middle of the conservatory. At the end of the ridge was a round structure, described during the evidence as a spigot, a term which seemed plainly to be a misnomer. In fact, we now know that this structure is properly called a spider and it provided the hub from which the roof rafters were to radiate. Against the wall of the house were two roof rafters described as end rafters. Coming out from the first side panel of the conservatory were two horizontal semi-radial rafters which joined to the spider—these were to be described by the defendant as main rafters—together with the two end rafters that I have just described. Accordingly, the first stage of the roof construction was to fit the ridge to the end rafters and the two semi-radial rafters. When they were in place the spider at the centre was securely fixed. The next stage was to fit five lighter-weight rafters (sometimes referred to as struts), which were described as either radial or semi-radial rafters.
On the day of the accident, the respondent had fitted the first four main rafters without mishap. For this work he had required the appellant's help and the two men worked together for some time. When that stage was finished the appellant left the scene and went to make a cup of coffee, while the respondent got on with the remaining rafters or struts, for which he did not need the appellant's help. A short time later, probably in the order of five to ten minutes, the appellant returned to the conservatory, bringing the respondent a cup of coffee. He stepped through the French doors, looking upwards to the respondent who was on a stepladder. He had advanced by a pace or two when he was struck in the eye by the end of a falling rafter. It was common ground that the appellant himself had not done anything to cause the rafter to fall. He suffered a serious injury.
The appellant sued the respondent for damages, alleging, first, that the respondent had caused or allowed the rafter to fall, and, second, that he had failed to warn the appellant as he stepped through the French doors that the rafter was insecure and might fall. In his defence, the respondent averred that he had left the rafter in position and had descended the stepladder to fetch his screwdriver to tighten the rafter into position when it had fallen, just as the appellant entered the conservatory. In a response to a request for further and better particulars of his defence, the respondent later averred that, before descending the step-ladder, he had secured the rafter temporarily with a screw tightened by hand.
In evidence, the respondent described in more detail what he had been doing in the few minutes before the accident occurred. He had been working on the fifth rafter. As I understand it, that was the first lightweight rafter, after the main semi-radial rafters. He said that he had rested the outer end of the strut on the top of the roof framework and had not secured it in any way. He had climbed the stepladder and had rested the inner end of the rafter on a lip or flange which ran round the spider. He said that he had inserted the fixing screw, which would secure the end of the rafter to the spider, and had tightened it by hand until it had engaged. He had then descended the ladder in order to fetch the screwdriver, with which he intended to tighten the screw firmly. He considered that it was quite safe for him to do this, to leave the strut as he did. He was climbing back up the ladder with the screwdriver in his hand as the appellant stepped through the French doors. At that moment the strut fell. The respondent did not offer any explanation as to why it had fallen. It appears that there was no wind, and he expressly denied that he himself had done anything which could have dislodged the rafter as he climbed the ladder. As the Recorder was later to find, the rafter cannot have been securely fixed to the spider otherwise it would not have fallen as it did, without any apparent force being applied to it.
The Recorder found that the respondent owed the appellant a duty of care. At the hearing there was a good deal of argument as to the standard of care owed by the respondent. The appellant contended that the respondent was a professional contractor and should be judged accordingly. The respondent contended that he was a general labourer and that less should be expected of him. The judge accepted the respondent's contention and held that the standard of care to be expected of him was that appropriate to a general labourer. The respondent did not dispute that he was under a duty to take reasonable care to protect the appellant from harm from injury. He acknowledged that when anyone is working at a height there is a risk of injury from falling tools or material. He acknowledged that he had to take reasonable care to prevent the roof strut from falling. He agreed that he knew that the appellant might well soon return to the conservatory bringing the coffee. It was not disputed that a falling roof strut was foreseeably likely to cause injury. All this was consistent with the respondent's case which was that he had indeed taken reasonable care to prevent the strut from falling. He had finger tightened the securing screw for that purpose.
At paragraph 12 of the judgment the Recorder held that it was clear that, by virtue of the fact that it fell, the roof rafter had not been secured in place by the respondent's attempted finger tightening of the screw. That failure to make it secure had caused the accident. At paragraph 17 of the judgment the Recorder found that the respondent had finger tightened the screw so as to secure the strut temporarily. He recited the respondent's evidence that the screw had bitten into the aluminium of the structure (that would be the spider), and that he had thought it safe to leave the rafter like that whilst he went to get the screwdriver. He then said that in his view it was reasonable for the respondent to believe that the rafter would be safe for that short time. The respondent had been entitled to believe that it would be safe by virtue of the fact that he had finger tightened the screw and had left both ends supported. At paragraph 18 of the judgment, he said:
"It may well be that someone with greater experience than that of a general labourer might have taken a different view, in other words that it was not safe to leave the rafter in that position. However, I am satisfied that it was reasonable for a general labourer such as the defendant to think that for that short period the rafter was safe."
In effect, that finding dealt with the allegation that the respondent had negligently caused or permitted the rafter to fall. It was accepted that the allegation as pleaded was wide enough to encompass a sub-allegation that the respondent had failed to prevent the rafter from falling. That allegation with its extension failed.
The Recorder went on to dismiss the appellant's other main allegation, which was that the respondent should have warned the appellant not to enter the conservatory at that time. The Recorder held that there had been no realistic opportunity for a warning to have been given and heeded. No point arises about that in this appeal. That finding was sufficient to dispose of the appellant's claim against the respondent. Finally, the Recorder held that if his conclusions on primary liability were wrong, and the accident had been caused by the respondent's negligence, then the appellant had contributed to the accident to the extent of 50 per cent by entering the conservatory with the coffee before ensuring that it was safe to do so. In effect, he held that the appellant ought to have asked whether it would be all right for him to enter.
In this appeal the...
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