Walsh v Holst & Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HODSON,LORD JUSTICE MORRIS,LORD JUSTICE SELLERS |
| Judgment Date | 01 July 1958 |
| Judgment citation (vLex) | [1958] EWCA Civ J0701-1 |
| Date | 01 July 1958 |
| Court | Court of Appeal |
[1958] EWCA Civ J0701-1
In The Supreme Court of Judicature
Court of Appeal
Lord Justice Hodson,
Lord Justice Morris and
Lord Justice Sellers.
Mr. FENTON ATKINSON, Q.C., Mr. H. HAGUE and Mr. G.D. PETHERICK (Instructed by Messrs. Robinson & Bradley, Agents for Messrs. Holden Blanthorne & Davies, Blackburn) appeared on behalf of the Appellant Plaintiff.
Mr. NORMAN RICHARDS, Q.C., Mr. GODFREY HEILPERN and Mr. R.E.G. HOWE (instructed by Messrs. Carpenters, Agents for Messrs. G. Keogh & Co., Bolton) appeared on behalf of the First and Third Defendants, Respondents.
The Second Defendant, L. Crossman, did not appear and was not represented.
: The Plaintiff was walking along the pavement of Back Darwen Street, Blackburn, on the 16th September, 1956, when he was struck by a brick which came from premises on the side of the road opposite to the pavement on which he was walking. He has brought an action for damages for personal injuries against the first Defendants, who are contractors and were engaged in work upon the premises from which the brick came.
He later joined as Second Defendants the subcontractor employ ed by the main contractor to perform the operation of bricking up apertures in the sides of the premises, such apertures having been enlarged by the First Defendants in order that new windows might in due course bo put into the building.
While the First Defendants were engaged on the work of alteration the accident happened.
He also joined as Third Defendants the North Western Electricity Board as owners and occupiers of the building.
The Plaintiff failed in his action, which was framed in negligence, the learned Judge finding that there was no negligence proved against any of the Defendants. The Plaintiff has appealed, joining only the First and Third Defendants as Respondents to his appeal.
No one knows how or why the brick fell, and the Appellant contends that "Res ipsa loquitur", for the brick speaks just as the barrel of flour in ( Byrne v. Boadle 2 H. & C. 722). In his judgment Chief Baron Pollock used the following language: "So in the building or repairing a house, or putting pots on the chimneys, if a person passing along the road is injured by something falling upon him. I think the accident alone would be prima facie evidence of negligence". I leave out the next sentence. The Chief Baron continued: "The present case upon the evidence comes to this, a man is passing in front of the premises of a dealer in flour, and there falls down upon him a barrel of flour. I think it apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the controul of it; and in my opinion the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to show that it could not fall without negligence, but if there are any facts inconsistent with negligence it is for the defendant to prove them".
It has been contended here, and this contention appears to have found favour with the learned Judge, that the maxim "res ipsa loquitur" has no application where there is more than one Defendant, for the thing cannot speak effectively against either unless the facts are precisely known.
I do not accept this contention. Once It is found that the Third Defendants were in occupation while the First Defendants employed by them as contractors were carrying on work involving the dislodgment of bricks, I think there is a prima facie case against both.
So far as the Board is concerned, the law as stated in ( Penny v. Wimbledon Urban District Council 1899, 2 Q.3. at page 78) is applicable: "When a person, through a contractor, does work which from its nature is likely to cause danger to others, there is a duty on his part to take all reasonable precautions against such danger, and he does not escape from liability for the discharge of that duty by employing the contractor If the latter does not take those precautions. I desire to point out that accidents arising from what is called casual or collateral negligence cannot be guarded against beforehand and do not come within this rule".
No question of collateral negligence arises here. No one knows how the accident came about and the Defendants do not seek to say that if there was negligence it was of a collateral nature.
So far as the contractors are concerned, there is a prima facie case against them also, since they were performing work at the material time which Involves the loosening or dislodging bricks from the building.
The existence of the subcontractor does not carry with it any uncertainty as to the identify of the person against whom the Plaintiff Is entitled to claim, although the sub-contractor and not the main contractor may have been responsible for dislodging the brick. This I think follows from the decision of this Court in Maxwell v. British Thomson-Houston Co.. ( 18 T.L.R. 273).
There work was being done upon a highway and it was the contractor's duty to take reasonable precautions to protect the public, and he could not escape that duty by delegating the work to a subcontractor. It was a case where the contractors were employed by the Corporation of Leeds, and it was, as in Penny's case, clearly stated that by employing a contractor the Corporation could not get rid of its own duty.
I am of opinion, therefore, and in this I differ from the learned Judge, that the Plaintiff established a prima facie case against both the First and Third Defendants, and in the absence of any evidence to show that there was no negligence in the conduct of the operations, the Plaintiff would, I think, have been entitled to succeed.
The learned Judge did not, however, confine himself to saying that the Plaintiff had made out no prima facie case by proving that he was bit by a brick which came from the premises in question when he was lawfully upon the highway and the First Defendants were working on the building of which the Third Defendants were the owners and occupiers.
He went on to deal with the case on the footing that the Defendants who are now Respondents to this appeal had by the evidence called before the Court satisfied him that there was no negligence, that is to say, that they had taken all reasonable steps in the performance of the work to prevent injury to persons using the highway.
It is this question which has been the main subject of consideration before this Court. The Plaintiff submits that since the fall of the brick is prima facie evidence of failure on the part of the First and Third Defendants to carry out the work without negligence and there Is no explanation of the accident at all, still less one which does not connote negligence, there should be judgment for the Plaintiff.
Although there is no such explanation, e. g., that the fall of the brick had been caused by the subsidence of the building due to some cause over which the Defendants had no control and could not reasonably have anticipated, nevertheless the Defendants are entitled to succeed if they can prove that there was no negligence on their part, that is to say, that they took all reasonable precautions to prevent injury to users of the highway. Compare ( Moore v. R. Fox & Sons 1956, 1 Q.B. 596). It is necessary to consider what work was being done and what precautions were taken.The building from which the brick fell was a large four-storey building which had formerly been a generating station, and the intention of the Board was to turn it into offices.
To this end the existing window apertures in the building were enlarged by the contractors, Hoist & Co., and the Second Defendant, the subcontractor, bricked up the openings to take the new windows. Both the contractor and the subcontractor were working on the building at the relevant time, but, when the brick fell, the main contractors' men were not actually engaged on the apertures, but the subcontractors were doing the brickwork on one of the apertures.
According to the evidence which the Judge accepted, that of Mr. Lord, a bricksetter, the only man working on the face of the building at the time of the accident, no brick came off his scaffold where he was working. In the light of this evidence, the claim against the Second Defendant has not been pressed.
The contractors' men used an electric drill from the outside in order to enlarge the openings by what was called a breaking-out process, so that most of the dislodged bricks fell inside the building, but some did fall outside and most of these would fall straight to the ground between the wall and the scaffolding which was erected against the wall of the building.
The perimeter was made regular and of the right size by the bricksetter who followed the main contractor after the breaking out had been done. An interval of a week or so would normally elapse between the breaking out and the final brlcksetting. The openings, therefore, might, after the broking out had been done, be ragged and have on their edges loose or detached bricks which might fall to the ground.
While the breaking out was being done, but not at other times, the contractors used tarpaulin sheeting to keep the brickwork from falling outwards and posted a man in the road to warn passers-by of the danger, because it sometimes happened that a brick or part of a brick fell into the road. This could happen if a brick in falling struck one of the tubular pieces of scaffolding with sufficient velocity and at such an angle as to throw it into the road over an apron with a plank at its outer edge acting as a kind of lip....
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