Smith v Austin Lifts Ltd
| Jurisdiction | England & Wales |
| Judge | Viscount Simonds,Lord Morton of Henryton,Lord Reid,Lord Somervell of Harrow,Lord Denning |
| Judgment Date | 18 December 1958 |
| Judgment citation (vLex) | [1958] UKHL J1218-2 |
| Date | 18 December 1958 |
| Court | House of Lords |
[1958] UKHL J1218-2
House of Lords
Viscount Simonds
Lord Morton of Henryton
Lord Reid
Lord Somervell of Harrow
Lord Denning
Upon Report from the Appellate Committee, to whom was referred the Cause Smith against Austin Lifts Limited and others, that the Committee had heard Counsel, as well on Tuesday the 11th, as on Wednesday the 12th and Thursday the 13th, days of November last, upon the Petition and Appeal of Harry Smith, of 8 Rawlston Way, Blakelaw Estate, Newcastle-upon-Tyne, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 16th of July 1957, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the printed Case of Austin Lifts Limited and Annie Mary McDonald (Married Woman) and Evelyn Louise Beere (Married Woman) and Audrey Metcalfe Daglish (Married Woman) (Executrices of the estate of G. R. S. Baker, deceased), 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 Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 16th day of July 1957, complained of in the said Appeal, be, and the same is hereby Set Aside, and that the Judgment of the Honourable Mr. Justice Oliver of the 14th day of February 1957, thereby set aside, be, and the same is hereby, Restored: And it is further Ordered, That the Respondents do pay, or cause to be paid, to the said Appellant the Costs incurred by him in the Court of Appeal, and also the Costs incurred by him in respect of the said Appeal to this House, such Costs to be apportioned as to twenty per cent. in respect of the first named Respondents Austin Lifts Limited and as to eighty per cent. in respect of the second named Respondents Annie Mary McDonald (married woman) and Evelyn Louise Beere (married woman) and Audrey Metcalfe Daglish (married woman) (Executrices of the estate of G. R. S. Baker, deceased), the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
The Appellant, a fitter in the employment of the first Respondents, Austin Lifts Limited, in the course of that employment on the 14th May, 1955, suffered a somewhat serious injury on certain premises in Newcastle on Tyne of which the other Respondents, whom I will call "the second Respondents", were the occupiers. He accordingly brought the action against them out of which this appeal arises, claiming (to put it briefly) that they had respectively failed to observe the duty of care that they owed to him.
The first Respondents carry on the business of repairing and maintaining lifts and were at the relevant time under contract with the second Respondents to repair and maintain a lift upon the premises that I have mentioned. The winding mechanism of this lift was situate in a machine house upon the roof of the premises and access to it was gained by means of a fixed iron ladder leading to double doors at the entrance to the machine house. The base of these doors was at a height of 11 feet 5 inches above the roof. Before the day of the accident the Appellant had, in the course of his duty, paid many visits to the machine house and was well aware that the left door was in a defective condition owing in particular to the lower hinge being broken, so that it was suspended from the upper hinge. He or another had reported this to his employers and they in turn had on no less than four occasions reported it to the second Respondents three times in their monthly routine reports of February, March and April, 1955, and once in a letter of the 21st April, 1955. In each of the routine reports the same remark was made: "Machine house door broken". In the letter it was said: "The machine room doors need refixing in position". There was, I think, nothing in these reports to suggest any danger and I would suppose that they were a warning to the occupiers that, if the doors were not repaired, the machinery would be exposed to the weather. At any rate, the second Respondents took no action upon the reports apart from a single incident which has had great importance in the case and to which I will presently refer, nor did the first Respondents think it fit to pay any special visit of inspection.
Before I come to the day of the accident I must say something more about the doors. They were designed to be secured by bolts on the inside of the left door at top and bottom and by a bolt on the outside of the right hand door about midway between top and bottom. It appeared from the evidence that the top bolt on the left side was never bolted and it may be disregarded. This being so there seem to have been two ways of getting from the ladder into the machine house, either by undoing the outside bolt, pulling up the inside bolt on the left door, opening both doors and climbing in with the aid of such handhold as could be obtained from the machine within, or by undoing the outside bolt, opening the right door only and climbing in through the gap left by that opening with the aid of a handhold upon the left door which was still closed. There was some discussion which was the "proper" or "natural" way of entry. I think that nothing turns on this. Either way was a proper and natural way, but the latter way only so long as the left door was secure.
On the 27th April the Appellant visited the premises for the last time before the day of the accident. As I have said, the lower hinge of the left door was then broken and he so found it. It hung suspended from the upper hinge. He could not bolt it in nor replace the door in its proper position. He did the best he could and that was to tie the doors together with wire to keep them closed. On the 14th May he went to the premises again to replace some wire ropes. Two other employees of the first Respondent, Wells and Fincram, accompanied or preceded him. On his arrival he found the right door open and the left door jammed inside the machine house. He mounted the ladder and decided to enter by the right door. He tested the left door for a handhold. In his own words:
"I put my left hand on to the door and gave a tug to try to budge it, it seemed safe enough: I tried to get in: I put my right hand on the door and the door gave and caused me to lose balance and I fell off the ladder altogether."
Two other things should be mentioned. First, it seems clear that, when he gave the door the preliminary tug to test it, he held it near the floor, but, when he put his weight upon it to lever himself up, he held it higher up, and it was this which caused the door to give. The door remained jammed at the bottom. Secondly, Wells, who had earlier on the same day climbed the ladder and entered the machine house, found the left door jammed in and the right door open. He made a safe entry.
My Lords, the case has, I think, taken a somewhat unusual course. The learned trial Judge, Mr. Justice Oliver, decided in favour of the Appellant against both his employers and the occupiers, but was reversed by the Court of Appeal on the ground that his findings of fact were not justified by the evidence. There was, I think, no difference of opinion about the relevant law. The learned Master of the Rolls himself, after concluding that neither Defendants were liable, said that, if the findings of the learned Judge which he had recited could have been justified on the evidence, the result might well have been otherwise. Such a conclusion might well involve a prolonged consideration of all the evidence, but it appears to me that there is little in dispute and that the case must turn upon the proper inference to be drawn upon a very few salient points.
Let me take first the case of the second Respondents, the occupiers. Their relation to the Appellant was that of invitor and invitee and the relevant law was that applicable before the recent Act. I should, therefore, but for a single fact, have had no doubt that they were under no liability for the Appellant's accident. If on the 14th May the Appellant had found the condition of the doors just as he had left them or even if the wire had been untied and the left door was swinging loose, I should have thought that the law as laid down in Horton's case was fatal to the Appellant's claim. But a fact, which was to my mind decisive, intervened. The doors on the 14th May were not as they had been left on the 17th April. On the contrary, the left door had by some means been lifted and wedged down so as to give the appearance of security. Yet it was not secure: apparently firm, it gave when the Appellant used it to lever himself up. This was the direct cause of the accident. It must be asked, then, how was the condition of the doors altered? The learned Judge drew the inference that it was by the act of the occupiers or their servant. The Court of Appeal held that there was no evidence from which this inference could be drawn. Now, I do not say it would be necessarily conclusive against the Appellant if such an inference could not be drawn. But it is not necessary to determine that. For, if it can and should be drawn, then it is, in my opinion, clear that an unusual danger was created for the Appellant which not only was or should have been known to the second Respondents but was due to their...
To continue reading
Request your trial
- Lian Soon Hing Shipping Co; Ting Jie Hoo
-
Ray McCalla v Atlas Protection Ltd and Ringo Company Ltd
...See General Cleaning Contractors v. Christmas [1953] A.C. 80; Tyneside Window Cleaning Co. [1958] 2 QB 110. 15 Lord Denning, in Smith v. Austin Lifts Ltd. [1959] 1 WLR 100 at 117, stated the position thus: ‘Notwithstanding what was said in Taylor v. Sims & Sims it has since then been held......
-
Percy Leonard McDonald (Claimant/Appellant) v Department for Communities and Local Government and Another
...some material knowledge by the employer of the danger to which its employee was potentially exposed. 39 This was not a case like Smith v Austin Lifts [1959] 1 WLR 100 where an employer knows of a danger on premises to which the employee is sent. It suffices to refer to the passage in the ju......
-
Tracey Kennedy Against Cordia (services) Llp
...is not to be treated as being the equivalent to that of nursery teacher and pupil, or that of parent and child: Smith v Austin Lifts [1959] 1 WLR 100 at 105. [35] The reclaimers advanced a further criticism of the Lord Ordinary’s decision: there is no finding of causal connection between a ......