Riddell v Reid

JurisdictionEngland & Wales
JudgeLord Thankerton,Lord Russell of Killowen,Lord Macmillan,Lord Wright,Lord Porter
Judgment Date15 June 1942
Judgment citation (vLex)[1942] UKHL J0615-2
CourtHouse of Lords
Docket NumberNo. 2.
Date15 June 1942
Potts or Riddell
and
Reid

[1942] UKHL J0615-2

Lord Thankerton

Lord Russell of Killowen

Lord Macmillan

Lord Wright

Lord Porter

House of Lords

After hearing Counsel, as well on Thursday the 30th day of April last, as on Friday the 1st and Monday the 4th, days of May last, upon the Petition and Appeal of Mrs. Catherine Buchan Potts or Riddell, widow of Archibald Campbell Riddell, builder, and residing at 42 Cairnhill Place New Cumnock, Ayrshire, as an individual and as Tutrix and Administratrix-at-Law for the pupil children of herself and her said husband, Catherine Buchan Campbell Riddell, Archibald Campbell Riddell, Margaret Aird Riddell and Agnes Potts Riddell, praying, That the matter of the Interlocutor set forth in the Schedule thereto, namely, an Interlocutor of the Lords of Session in Scotland, of the First Division of the 18th of February 1941, so far as regards the words "The Lords having considered the Appeal, Record, Proof, and whole process, and having heard Counsel for the parties, Refuse the Appeal" and also the words "Find in fact and in law (1) That the workman's death was not caused by any fault or negligence for which the Defender is responsible, and (2) That although a moveable mechanical cement mixer—situated, at the time of the accident, about 23 yards from the workman—was used in connection with his work, the mixer was, upon a sound interpretation of the Building Regulations 1926 to 1931—made in pursuance of the Factory and Workshop Act, 1901 (1 Edw. VII. C. 22) and any subsequent Statute relative thereto, outside the area of the building' and that therefore the Regulations have no application to the present case, and that the Defender has not been in breach of a statutory duty: With these Findings Remit the case back to the Sheriff to Repel the 1st and 2nd Pleas-in-Law for Pursuer and to proceed further as accords. Find the Pursuer liable to Defender in the expenses both in the Sheriff Court and in the Court of Session and Remit the Account thereof to the Auditor to tax and to report", might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Interlocutor, so far as aforesaid, might be reversed, varied, or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of George Reid, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Interlocutor, of the 18th day of February 1941, so far as complained of in the said Appeal, be, and the same is hereby, Reversed, and That the said Cause be, and the same is hereby, remitted back to the Court of Session in Scotland with a Direction to decern in favour of the Pursuer for Seven hundred and fifty pounds (£750) to herself as an individual and Two hundred and fifty pounds (£250) in respect of each of her four pupil children, and to do therein as shall be just and consistent with this Judgment: And it is further Ordered, That the Respondent do pay, or cause to be paid, to the said Appellant the Costs of the Action in the Sheriff Court and in the Inner House of the Court of Session and also the Costs incurred by her in respect of the said Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That unless the Costs, certified as aforesaid, shall be paid to the party entitled to the same within one calendar month from the date of the certificate thereof, the Court of Session in Scotland, or the Judge acting as Vacation Judge, shall issue such summary process or diligence for the recovery of such Costs as shall be lawful and necessary.

Lord Thankerton

My Lords,

1

This Appeal arises in an action of reparation brought by the Appellant, on her own behalf and on behalf of her pupil children, in respect of the death of her husband while in the employment of the Respondent as a journeyman bricklayer. The action is based on fault of the Respondent in respect of breach of duty to his workman; it was originally based on breach of common law duty and also on breach of a statutory duty laid upon the Respondent by the Building Regulations, 1926, but, in this Appeal, the breach of statutory duty is alone maintained as the ground of fault.

2

This action having originated in the Sheriff Court, the interlocutor of the First Division of the Court of Session, against which this Appeal is taken, in accordance with section 40 of the Scottish Judicature Act, 1925, specifies the several facts material to the case which they find to be established by the proof, and expresses how far their judgment proceeds on the matter of fact so found, or on matter of law, and the several points of law which they mean to decide; and appeal is only open in this House so far as the interlocutor depends on or is affected by matter of law, but, so far as it relates to the facts, the interlocutor has the force and effect of the special verdict of a jury, finally and conclusively fixing the several facts specified in the interlocutor. The material findings of the interlocutor are as follows,

"Find in fact:—(1) the pursuer (aged 43 years at the date of the proof) is the widow of Archibald Campbell Riddell (hereinafter called the workman) who resided in New Cumnock, Ayrshire, and she sues in this action as an individual and as tutrix and administratrix-at-law for their four children, all pupils; (2) on the morning of 30th November, 1938, the workman, a journeyman bricklayer, aged 48 years, was employed, with other workmen, by the Defender (a building contractor at Catrine, Ayrshire) in a Housing Scheme at Cairn Road, Cumnock, Ayrshire; the Scheme provided for the erection of 48 houses in blocks of four. Five blocks comprising 20 houses had been completed and the pursuer and other of the Defender's workmen were working on the other blocks or some of them; (3) the Scheme included blocks of four-flatted houses—two on the ground floor and two on the upper; (4) with other labourers, the workman was, in the course of his employment with the Defender, laying the top wall of the upper storey of one of the houses; for this purpose mortar was being supplied from a portable petrol-driven cement mixer situated near the end of a temporary road about 23 yards from the house on which the workman was employed; (5) before 30th November, 1938, he and his fellow-workers had, while laying the top of that wall, been on a platform of planks supported on trestles resting on joists between the first and second storeys of the house; (6) this platform was approximately 3 feet 3 inches wide, consisting of six planks, each 14 feet long, 6½ inches broad and 2½ inches thick, and as constructed was safe. The projection of the planks beyond the trestles was not more than 10 inches; (7) on the morning before mentioned, Capperauld (aged 20 years), a fellow-labourer with the workman, placed on the platform a seventh plank, 3 inches thick, longer than the others and projecting more than two feet beyond a trestle forming support of the plank at one of its ends; this projection constituted a danger to the deceased workman; (8) in course of his employment, the workman stepped on the projecting portion of the seventh plank; (9) his weight was at least 16 stones; (10) under that weight the plank tilted, with the results that he lost his balance, fell from the plank and sustained injuries which proved fatal; (11) there is no evidence that the Defender failed to provide adequate material for safety of the platform; (12) he had at the place of the employment a competent foreman—his brother William Reid, aged 43 years, with over 25 years' experience in the building trade; (13) it is not proved that the foreman instructed, approved of or acquiesced in the addition of the seventh plank; he denies that he did and Capperauld's testimony to the contrary is uncorroborated; and (14) the workman had for a considerable period an average weekly wage of £3 10s. od., on which the pursuer and their children were wholly dependent. Find in fact and in law (1) that the workman's death was not caused by any fault or negligence for which the Defender is responsible, and (2) that although a moveable mechanical cement-mixer—situated, at the time of the accident, about 23 yards from the workman—was used in connection with his work, the mixer was, upon a sound interpretation of the Building Regulations, 1926 to 1931—made in pursuance of the Factory and Workshop Act, 1901 (1 Edw. VII. C. 22), and any subsequent statute relative thereto, 'outside the area of the building,' and that therefore the Regulations have no application to the present case and that the Defender has not been in breach of a statutory duty."

3

The questions in issue may be stated as follows, (1) do the Building Regulations apply in the present case, (2) if so, did the seventh plank form part of the working platform at the time of the accident within the meaning of Article 7 of the Regulations, and (3) if both these questions are answered affirmatively, was there a breach of statutory duty on the part of the Respondent such as to constitute fault or negligence on his part? A negative answer to any one of these questions will lead to failure of the Appeal.

4

First, as to the applicability of the Building Regulations, which are made under the authority of section 79 of the Factory and Workshop Act, 1901, which provides as follows,

"79. Where the Secretary of State is satisfied that any manufacture, machinery, plant, process or description of manual labour, used in factories or workshops, is dangerous or injurious to health or dangerous to life or limb, either generally or in...

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