Solomons v R Gertzenstein Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SOMERVELL,LORD JUSTICE ROMER |
| Judgment Date | 30 June 1954 |
| Judgment citation (vLex) | [1954] EWCA Civ J0630-1 |
| Date | 30 June 1954 |
| Court | Court of Appeal |
[1954] EWCA Civ J0630-1
Lord Justice Somervell
Lord Justice Birkett and
Lord Justice Romer.
In the Supreme Court of Judicature
Court of Appeal.
MR. R. MARVEN EVERETT, Q.O. and Mr H. LESTER (instructed by Messrs Spiro & Steele) appeared on behalf of the Appellant (Third Defendant).
LORD HAILSHAM, Q.O. and Mr J. PERRETT (instructed by Messrs Herbert Baron & Co.) appeared on behalf of the Respondent (Plaintiff).
This is an appeal from a decision of the Lord Chief Justice who awarded the Plaintiff damages in the following circumstances. The Plaintiff was badly injured in trying to escape from No. 36, Gerrard Street, Soho, when a fire occurred on the 10th November, 1950. The Plaintiff worked for his brother-in-law who had a small manufacturing business on the second floor of the building. The first Defendants occupied part of the premises, but no liability was established as against them. The second Defendants were lessees of the premises under a 99-year lease, and also occupied some rooms in it.
They had mortgaged the premises to a building society who had appointed the third Defendant as Receiver. They were both held liable but the appeal before us was that of the third Defendant only.
The fire was caused or probably caused by a short circuit setting alight to a stack of paper. The learned Lord Chief Justice negatived any negligence in respect either of the short circuit or of the stack of paper holding that the fire was accidental. On this basis the claim that falls to be considered is of alleged breach of statutory duty under section 133 of the London Building Acts (Amendment Act) 1939. The section is one of several sections in the Act dealing with the provision and maintenance of means of escape in case of fire. Although such or similar provisions have been admittedly on the Statute Book for over 50 years this is the first occasion on which it has been suggested that a civil right to claim damages is conferred by them.
In February, 1925, a notice was served by the London County Council under section 12 of the London Building Acts (Amendment Act) 1905. The relevant part of that section provided that a building such as this should be provided by the owner either with a trap door and a fixed or hinged step ladder leading to the roof or other proper means of access to the roof. A file was produced and an official, Mr Brend, from the London County Council gave evidence. The file showed that the work had been completed to the satisfaction of the District Surveyor. It is clear that there was never a trap door with a fixed or hinged step ladder and the surveyor must therefore have been satisfied with other proper means of access. There was a trap door and there was a ladder unfixed, it had hooks which could be fixed into holes so as to give access to the trap door. On the date of the accident the ladder was in a passage behind a door leading to the ladies' lavatory; in other words, it was not visible to anyone who, finding himself caught by the fire on the toplanding, might seek to escape by the trap door. One question that has to be decided is whether this constituted a breach of statutory duty for which someone, and if so who, could have been prosecuted.
There is one point which can be shortly disposed of and that is as to causation. If the fact that the ladder was in the passage constituted a breach, I think on the facts as found it clearly must be treated as the cause of the Plaintiff's injuries. He sought to escape by a window, his arm got caught in the curve of a pipe, a bone was broken and he was suspended for some time.
We have to consider in this case the London Buildings Act of 1930 and the London Buildings Acts (Amendment Act) of 1939. The latter Act is by section 1 to be read and construed as one with the former. Part 5, sections 33 to 43, deals with means of escape in case of fire. "Owner" is defined in section 33 as follows: "In this part of this Act unless the context otherwise requires the following expressions have the meanings here by respectively assigned to them: 'Owner' in relation to any premises means the person for the time being receiving the rack rent of the premises whether on his own account or as agent or trustee for any other person or who would so receive it if the premises were let at a rack rent". Section 34 provides that new buildings of certain categories are to be provided with means of escape in accordance with plans approved by the Council. By subsection 5 where an offence has been committed the Court in addition to a fine may prohibit the occupation of the building until presumably means of escape as required are provided. Section 35 deals with old buildings and provides that the Council may serve a notice if in their opinion it is not provided with proper and safe means of escape. In this case also if the notice is not complied with the Court may prohibit the occupation of the building. Section 36 deals with projecting shops and section 37 is the successor of section 12 of the 1905 Act to which I have referred. The maintenance of means ofescape, etc., is not dealt with in Part V but in Part XII which is headed " Miscellaneous". Subsection 1 of section 133 is as follows: "All arrangements and safeguards for lessening danger from fire provided in pursuance of the provisions of the London Buildings Acts or of any byelaws made in pursuance of these Acts shall be kept and maintained in good condition and repair and in efficient working order by the owner of the building and no person shall do or permit or suffer to be done anything to impair the efficiency of any such safeguards or arrangements". Subsection 2 contains similar provisions with regard to all means of escape and safeguards.
One of the questions which arises is whether the definition of "Owner" in section 33 which is expressly limited to Part V is to be read as applying to section 133 Section 141 which deals with the power of the owner and others to enter and execute work is relevant on this argument. Subsection 3 of that section provides expressly that in that section the expression "owner" in relation to any requirement in virtue of any of the provisions of Part V has the same meaning as in that Part of the Act.
It is now possible to formulate the various issues that were argued before us; (1) Is a Receiver appointed by a mortgagee within section 109 of the Law of Property Act, 1925, an agent within the definition in section 33? (2) Does the definition in section 33 apply to the word 'owner' where it appears in section 133? (3) If the third Defendant was an owner within section 133 did the Plaintiff establish that he had failed to keep and maintain in good condition and repair and in efficient working order arrangements and safeguards for lessening danger from fire or means of escape provided in pursuance of the provisions of the London Building Acts, or, alternatively, was he a person who did or permitted or suffered to be done anything to impair the efficiency of any such safeguards or arrangements? (4) Does a breach of section 133 give a right to the individual to bring a civil action for damages? I haveposed this question as applicable to section 133 "because that is the section relied on, but it is I think clear that one has in the first instance to consider whether such a right is conferred by Part V. I have no doubt that a Receiver appointed by a mortgagee is within the definition. He collects the rents as agent for the mortgagor. It was pointed out that he would have no power to incur expenditure on matters for which obligations are placed on "owners". The same would apply to other rent collectors. I ventured in Regina v. Minister of Housing and Local Government. Ex parte Corporation of London, 1954, 1 Queen's Bench, page 140, to express a hope that this definition union occurs in many Acts would some day be reconsidered. I hope if this is done the inclusion simpliciter of agents will be considered. One can understand the necessity for administrative purposes of bringing in the rent collector if, as was not infrequent in old days, the identity of the landlord was unknown. When it is known it seems illogical that the obligations and the penalties should descend on an agent.
On the question of its application to section 133, I do not think the Lord Chief Justice's attention was drawn to section 141. Where there are ambiguities or obscurities I take, I hope a broad view in construing statutes, but there is here no ambiguity nor is it possible I think to imagine an omission per incuriam. As the Act of 1939 is to be read as one with the Act of 1930 and the latter includes a general interpretation section this will apply throughout unless excluded or modified as it is by section 33. The definition in section 5 of the Act of 1930 is as follows; "In this Act save as is otherwise expressly provided therein and unless the context otherwise requires the following expressions have the meanings hereby respectively assigned to them (that is to say): 'Owner' includes every person in possession or receipt either of the whole or of any part of the rent or profits of any land or tenement or in the occupation of any land or tenement otherwise than as a tenant from year toyear or for any less term or as tenant at will". The definition in section 33 is expressly limited to Part V. One might have thought that it has not been extended to the similar subject matter of section 133 per incuriam but for its express extension in section 141. It was then submitted that the Receiver was within section 5. I think not. One is faced with a general and a special definition. The latter expressly includes an agent and the former does not. One could not possibly in a partly penal statute imply an agent into the former definition. If a statute is plain, our's not to reason why, but it may be...
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