Salsbury v Woodland
|England & Wales
|LORD JUSTICE HARMAN,LORD JUSTICE WIDGERY,LORD JUSTICE SACHS
|01 April 1969
|Judgment citation (vLex)
| EWCA Civ J0401-8
|01 April 1969
|Court of Appeal (Civil Division)
 EWCA Civ J0401-8
Lord Justice Harman
Lord Justice Sachs and
Lord Justice Widgery
In The Supreme Court of Judicature
The Court of Appeal
(From: Mr. Justice Paull - London)
Mr. JOHN DAVIES, Q.C, Mr. J.G. LEACH and Mr. J. MARSHALL (instructed by Messrs. Donald, Darlington & Nice) appeared on behalf of the Appellant the First Defendant.
Mr. JAMES FOX-ANDREWS, Q.C. and Mr. JOHN EDWARDS (instructed by Messrs. Gardiner & Co.) appeared on behalf of the Appellant the Third Defendant.
Mr. RODNEY BAX, Q.C. and Mr. S.J. WALDMAN (instructed by Mr. W.H. Thompson) appeared on behalf of the Respondent-Plaintiff.
I will ask Lord Justice Widgery to give the first judgment.
This is an appeal from a judgment of Mr. Justice Paull given on the 1st July, 1968, whereby he awarded to the plaintiff, Mr. Michael Salsbury, damages totalling £6,500 against all three defendants, in respect of personal injury which Mr. Salsbury, the plaintiff, had suffered in somewhat remarkable circumstances. The accident to the plaintiff occurred on the 5th July, 1963, in a road called Dome Hill, at Caterham, in Surrey. The first defendant, Mr. Woodland, had recently bought a house, No. 11 Dome Hill, but had not at this point moved into occupation of it. The garden was somewhat overgrown and, it is evident that Mr. Woodland and his wife were minded to have the garden tidied up before they went in. Amongst other duties to be done was the felling of a large hawthorn tree which stood in the front garden and had grown to a height of some 25 feet or more. An agreed plan shows the location of the hawthorn tree; and the following dimensions are perhaps of some consequence. The distance from the public footpath back to the nearest portion of the house was some 40 ft. 7 ins. The hawthorn tree stood at the side of the drive 12 ft. 7 ins. from the house and 28 feet from the road. Running diagonally across the garden was a telephone wire (it was in fact a pair of telephone wires in those days) serving the house. These wires were attached to a telegraph pole on the side of Dome Hill remote from the house and ran across, unsupported, until they reached the eaves of the house at the western end - that is to say the end of the house on the left-hand side of the plan. They were there attached to insulators and they came down to the instrument in the house. The height of the tree was such that if it was allowed to fall in the direction in which the telephone wires ran one or more of its branches would foul the telephone line. Mr. Woodland appreciated that the felling of this tree was not a job for an amateur like himself, and his wife was considering how expert assistance might be acquired. Some daysbefore the 5th July she had seen in an adjacent road a party of men felling trees. She asked the foreman whether one of his men would come and take down this hawthorn tree for her. The foreman said that he would enquire and next day told Mrs. Woodland that Mr. Coombe (the second defendant) was prepared to do this work. Mrs. Woodland, quite properly, accepted Mr. Coombe as a man of competence and experience appropriate for the job.
To cut the story to its briefest terms, Mr. Coombe reached the stage of felling this tree on the evening of the 5th July at about 5 p.m. He had been told that no stump was to be left. That involved bringing up the roots as well. Having lopped the tree to some extent but not so as significantly to affect its total height, he then dug a trench round the bole of the tree, severed some of the roots, and proceeded by means of a tractor to push and pull the tree with a view to loosening it and causing it to fall.
He was being watched with interest and some apprehension by Mrs. Woodland, who feared that the tree might damage the house. He was also being watched out of curiosity by a Mr. Sherwood, aged 21, the son of the house next door, No. 13 Dome Hill, and the plaintiff, who was also aged 21, and who was a friend of Mr. Sherwood's and had happened to call at this time.
Mr. Coombe proceeded with his operation, and eventually the tree came down. It seems clear that his method of removing the stump was one which gave him no real control over the direction in which the tree should fall, and as luck would have it it fell towards the telephone wires, and at least one long branch, not less than 25 feet in length, fouled the telephone wires and broke them. One wire was severed at the eaves of the house itself; the other was severed some 18 feet away from the terminal point on the eaves. Both wires remained attached to the top of the telephone pole on the remote side of the road, and the wires thus described a kind of parabola across the road: one wire came down almost vertically and then, as it was said, "snaked" across the road, in the manner which was described, touching theroad from point to point: the other wire came down in a large, flatter curve, so that in the centre of the carriageway it was 2 feet above the level of the carriageway.
The plaintiff and Mr. Sherwood, observing that this had happened, decided that something must be done. Their plan seems to have been that Mr. Sherwood would go back into his house and telephone the G.P.O. and the plaintiff would coil up the broken wires and remove the hazard on the highway which they could create. Unfortunately, before the plaintiff had any opportunity to begin to coil the wires at all, a motor-car appeared from the direction of Caterham, driven by Mr. Waugh, the third defendant. This was a Mini car, which was being driven up the road at a speed found by the judge to have been 45 to 50 miles an hour, and accelerating. The speed was criticised in the course of the trial, but the judge found, and I have no doubt rightly, that in the circumstances 45 to 50 miles an hour was not an unreasonable speed.
The plaintiff appreciated that the car might come into collision with the wires across the road. His immediate reaction was to signal the driver to slow down, but it was too late to do that, and the plaintiff realised - in a manner which is not criticised in the judgment - that a collision between the car and the wires was inevitable and that the result upon the wires might be injurious to him because they were close to him, and their behaviour after the collision was no doubt unpredictable. Just at about the time the car struck the wires, the plaintiff, for his own safety, fell face downwards on the grass verge. He seems to have used his hands to break his fall. For a man of 21 to fall in that way upon a grass verge is not an incident likely to give rise to any injury, but unfortunately a further coincidence is that Mr. Salsbury had a defect in his back. The details of this defect were fully investigated at the trial and I find it unnecessary to go into them now. Putting it in simple, layman's terms, he had in his spine what is called an angioma, which I gather is a kind of small tumour. The effect of thisrelatively unathletic exercise of falling on his face clearly disturbed the angioma, causing it to bleed, and the result of this upon the adjacent spinal cord was to give the plaintiff within two or three days all the symptoms of paraplegia: in other words, both legs went numb below the waist arid at one time it looked as though very grave injury had been caused. Happily things did not turn out as badly as that; the plaintiff achieved a measure of recovery; but the extent of his resultant permanent injury is measured by the fact that the learned judge thought it right to award him £5,000 for general damages.
At the trial, as is understandable, many difficult questions of causation and foreseeability were considered. The case against the three defendants, in a nutshell, was this. It was said that Mr. Coombe, the tree-feller, had been negligent in felling the tree and that that negligence was the cause of foreseeable injury to the plaintiff. It was said, and was found by the learned judge, that the first defendant, Mr. Woodland, was liable for that injury because in the circumstances of this case the judge held that he was liable for the negligence of Mr. Coombe. Thirdly, it was said that the third defendant, Mr. Waugh, was negligent in that when driving up the road he either saw the telephone wires and failed to take evasive action or alternatively was negligent in that he ought to have seen the telephone wires and ought again to have taken evasive action but failed to do so.
Any question of causation resulting from the negligence of Mr. Waugh is a matter which does not arise in this appeal and I am therefore spared the necessity of going into it in any detail, So far as Mr. Coombe is concerned, judgment was obtained against him, I think in default of defence. No issue of his liability was raised here. The appeals of the first and third defendants respectively raise quite different questions and therefore they can conveniently be dealt with separately.
So far as Mr. Woodland, the first defendant, is concerned, he personally committed no negligent act, and it is notchallenged that in selecting Mr. Coombe as the means of having this tree felled he selected a person who was apparently competent and fit to do it. The whole basis of the case against Mr. Woodland is that Mr. Coombe was negligent and that Mr. Woodland is responsible for that negligence. Mr. Davies, appearing for the first defendant, was prepared to challenge the judge's finding of negligence on the part of Mr. Coombe, and was prepared to challenge the, difficult questions of causation which arose in the course of that issue, but, the Court having concluded that the first defendant's appeal succeeded on a different ground, I need not go into those matters now. The basis of the decision of this Court...
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