Smith v Cammell Laird & Company
| Jurisdiction | England & Wales |
| Judge | Viscount Maugham,Lord Atkin,Lord Russell of Killowen,Lord Wright,Lord Porter |
| Judgment Date | 04 December 1939 |
| Judgment citation (vLex) | [1939] UKHL J1204-1 |
| Date | 04 December 1939 |
| Court | House of Lords |
[1939] UKHL J1204-1
Viscount Maugham
Lord Atkin
Lord Russell of Killowen
Lord Wright
Lord Porter
House of Lords
After hearing Counsel, as well on Friday the 13th, as on Monday the 16th, Tuesday the 17th and Wednesday the 18th, days of October last, upon the Petition and Appeal of Frederick Warren Smith, Pauper, of 96 Peel Street, Lower Tranmere, in the County of Chester, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 12th of April 1938, might be reviewed before His Majesty the King, in His 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 His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Cammell Laird and Company, Limited, 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 Order of His Majesty's Court of Appeal, of the 12th day of April 1938, complained of in the said Appeal, be, and the same is hereby, Reversed, and that Judgment be entered for the Appellant for the sum of seven hundred and sixty pounds (760l.): 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 Courts below, and also the Costs incurred by him in respect of the said Appeal to this House, such last-mentioned Costs to be taxed in the manner usual when the Appellant sues in formâ, pauperis, and the amount thereof 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 King's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
This is an Appeal from the Judgment of the Court of Appeal affirming (by a majority) the decision of the Trial Judge, then Mr. Justice Goddard. The Appellant was the Plaintiff in the action. He had been employed by the Cork Insulation Company, Limited (who were not parties to the action) as a joiner to do work in connection with the construction of certain insulation chambers in a vessel named the "Dunedin Star" and in the course of doing that work he suffered injuries for which he claimed damages in the action against the present Respondents who were the owners of the wet dock in which the work of finishing the vessel was being done. As appears from the above the action was dismissed, and the question before Your Lordships is whether this result is wrong, and he ought to recover judgment for a sum of £760 which the learned Judge fixed as the damages which he would have awarded if he had held that the Appellant was entitled to maintain his claim against the Respondents.
The work of finishing the vessel in the wet dock was done partly by the Respondents and partly by other independent contractors including the Cork Insulation Company and J. & E. Hall, Limited. Certain wooden staging had been erected by the Respondents in No. 2 hold and in other parts of the ship. Before the launching, the Respondents had completed their work in No. 2 hold, but they left the staging for the convenience of the Insulation Company and other contractors including J. & E. Hall, Limited, the refrigerating engineers who used the staging before the Insulation Company and were going to use it again after the latter had completed the insulation. The Respondents, however, had a gang of men who were supervising all the staging in the ship and who made frequent examinations of all the staging. The staging had been properly constructed. It extended over the width of the hold and consisted of planks extending 18 inches or more beyond the inside edge of the thwarts or supports on which they rested in accordance with the regulations made by the Secretary of State under Section 79 of the Factory and Workshop Act, 1901. The staging, as constructed, was lashed to the bearers, but the foreman of the Insulation Company complained that the lashing caused their men to stumble and it was removed. The result was that the planks were loose in the sense that they could be moved or pushed lengthways. One of them was in fact moved away from the support of its bearer with the result that it gave way beneath the Appellant when he stepped on it and he suffered serious injury. It is the fact that a chargehand employed by the Respondents had removed the lashing in question at the request of the foreman of the Insulation Company.
The shipbuilding regulations to which I have referred were directed to apply "to the construction and repair of ships in shipbuilding yards", and these yards are defined in the Factory and Workshop Act, 1901 (Sixth Schedule, Part II (25)) as meaning "any premises in which any ships … are made finished or repaired". The Respondents' wet dock is within these words. The regulations provide that "it shall be the duty of the occupier to comply with Parts I to VIII of these regulations". There is a proviso as regards ships which are being repaired in public dry dock to the effect that the person who contracts with the owner of the ship or his agent to execute the work of repair shall be deemed to be the occupier for the purposes of Parts I to VIII, and that it should be his duty to comply with the said parts with some special and somewhat elaborate exceptions. There is no other guide to the meaning of the word "occupier" in the regulations. It is not in my view a sufficient guide to make it safe to rely upon it. The regulations as to staging are contained in Part II. Some of Your Lordships will state the relevant sections in full and for my purpose it will suffice to set out Section 11 ( b)which is in these terms:—
"All staging shall (i) be securely constructed of sound and substantial material and shall be maintained in such condition as to ensure the safety of all persons employed; (ii) be inspected at regular and frequent intervals by a competent person."
Apart from contentions which are not now relied on the Appellant based his claim on the ground that he had suffered his injuries by reason of the failure by the Respondents to maintain the staging "in such condition as to ensure the safety of all persons employed". The Trial Judge (Goddard J.) found the following facts:—
"( a) that the Cork Insulation Company were independent contractors and in no sense sub-contractors to the respondents ( b) that the respondents were under no duty contractual or otherwise to provide a staging for the Cork Insulation Company ( c) that the staging was left by the respondents for the use of the Cork Insulation Company's men as a matter of convenience ( d) that at the time when the staging was left by the respondents for the use of the Cork Insulation Company's men, it was properly constructed and perfectly safe, and although the planks of the staging extended 18 inches or more beyond the inside edge of the bearers on which they rested, the planks were lashed as an additional safeguard ( e) that it was the Cork Insulation Company who caused the lashings to be removed ( f) that because of the removal of the lashings one of the planks became loose and the appellant was caused to fall ( g) that the fact that the respondents' men inspected the staging from time to time did not put the respondents under any duty to the Cork Insulation Company to maintain the staging ( h) that the Cork Insulation Company and not the respondents were the occupiers of the staging or of the part of the ship where the staging was, for the purpose of their work upon the insulation chambers."
On these findings, which I accept, he came to the conclusion that the duty of maintaining the staging imposed by Section 11 of the regulations was cast at the material time not upon the Respondents but upon the Cork Insulation Company.
In the Court of Appeal Lord Justice Greer and Lord Justice Clauson were in substance of the same opinion, and they did not agree with an argument raised for the first time before them that the Respondents were responsible for compliance with the Shipbuilding Regulations simply as occupiers of the shipyard, notwithstanding that the Cork Insulation Company were in fact in actual occupation of the part of the ship where the staging in question was. Lord Justice Slesser, however, was of a different opinion. He held that the word "occupier" in the regulations means the occupier of the whole dock, and that, save in special circumstances which do not apply in this case, there cannot, within the contemplation of the Factory Acts, be more than one occupier for one factory.
My Lords, I have not attempted to state in any detail the Judgments of the Lords Justices because they are fully reported in the Law Reports ( 1938 2 K.B. 700). I understand that Your Lordships have formed the view that the Appeal should succeed, and that leads me to make two observations. On the one hand any remarks of mine would in these circumstances have little weight, and on the other hand I am happy to note that the Factory and Workshop Act, 1901, no longer offends the eye of the lawyer in the Statute Book. I have read with care all the authorities bearing on the topic on which this Appeal turns. No clear guide is to be found in them, and even the decisions of this House are almost impossible to reconcile. If anyone should doubt this he has only to refer to the case of ( Smith v. the Standard Steam Fishing Company, Limited 1906 2 K.B. 275) and to read the judgments of Sir Richard Henn Collins and of Sir Robert Romer. In any case I do not think that the decision of this House in...
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