Shirvell V. Hackwood Estates Ltd.
| Published date | 01 December 1938 |
| Author | C. J. Hamson |
| DOI | http://doi.org/10.1111/j.1468-2230.1938.tb00406.x |
| Date | 01 December 1938 |
SHIRVELL
v.
HACKWOOD ESTATES LTD.
215
SHIRVELL
v.
HACKWOOD ESTATES LTD.
The case of
Shirvell
v.
Hackwood
Estates
Ltd.’
in the Court of Appeal
(Greer and Mackinnon,
L.
J
J.
and Bennett, J.) raises two points of interest
:
(I)
What
is
the duty owed by an occupier of land to a person who is law-
fully upon adjoining land
as
the adjoining occupier’s invitee, and
(2)
a
duty of care existing, what amounts to negligence in the maintenance of
land where the condition of the land is dangerous.
(I)
Simplified for the purpose of the first point, the facts were these
:
a landlord being in occupation of an estate let part of
it
to
a
tenant as a
farm. Near the boundary of the part remaining in his occupation stood
a
dying beech tree, one of whose dead branches overhung the farm. The
beech
so
standing constituted a danger, which existed at the time of the
lease and remained substantially unaltered during the lease’s continuance.
Less than six months after the lease, the branch fell without warning and
injured a labourer working on the farm. The labourer was employed by
the tenant. Granted that the landlord (if under
a
duty
of
care) had been
negligent, did the landlord owe a duty to the labourer
?
It
was stated by Bennett, J.,z that the landlord would in his opinion
have been liable to the labourer had the case been one of adjoining owners
not in the relation of landlord and tenant
;
but with Greer, L. J. (Mackin-
non,
L.
J., expressly reserving his opinion) he held that the lease deprived
the labourer of his remedy.
Since the danger existed
at
the time of the lease, the Court of Appeal
was
perhapsza bound in accordance with
Cheater
v.
Cater3
to hold that,
as
between landlord and tenant, ‘caveat lessee’ applied
:
so
that the tenant,
if
he
had been injured, would have had no remedy against the landlord.
But because the tenant is barred does
it
follow that the labourer is barred
also
?
Counsel for the landlord in the course of argument suggested’ that it
would be odd
if
the labourer had
a
better claim than the tenant against the
landlord. But the landlord’s immunity
as
regards the tenant appears to
be
a
result of the contract between them.
So
far
as
the labourer is con-
cerned, that contract is
Yes
inter
alios acta.
It
was emphasised in
Cavalier
v.
Pope6
that the stranger could acquire no
rights
under such a contract
against the landlord. Why should the landlord acquire rights under
it
against the stranger
?
The labourer
is
surely as much a stranger for one
purpose
as
for the other; and there is certainly nothing odd in
a
stranger to
a
contract being as unaffected by the burden of it
as
he is by its benefit.
Indeed to bar the labourer because the tenant is by his own contract
barred seems very like ‘identifying’ the labourer with the tenant according
to the doctrine in
Thorogood
v.
Bryan,*
a
doctrine which was perhaps to
be regarded
as
finally exploded in the
Bernina.’
If
it be admitted,
as
I
think
it
must
(i)
that the tenant is barred by reason mly of his contract
54
T.L.R.
554
(which reports the judgments more fully),
1938,
z
All
E.R.
I
(which
a
54
T.L.R.
p.
560.
lo
In the current number
of
the
L.Q.R.
Prof.
Goodhart discusses the effect
of
the
a
[1918]
I
K.B.
247.
‘
[1938]
z
All
E.R.
I,
3.
[rgo6]
A.C.
428
*
(184g),
g
C.B.
115.
’
(1888),
13
App. Cas.
I.
reports counsel’s arguments).
Now
reported in
[1938]
2
K.B.
577.
precedents.
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