Westwood v Post Office
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KARMINSKI,LORD JUSTICE LAWTON,Lord Justice Karminski |
| Judgment Date | 23 November 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J1123-2 |
| Date | 23 November 1972 |
| Court | Court of Appeal (Civil Division) |
[1972] EWCA Civ J1123-2
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: Mr. Justice O'Connor - London)
Lord Justice Davies
Lord Justice Karminski and
Lord Justice Lawton
Mr. STEPHEN BROWN, Q.C. and Mr. MICHAEL BURKE-GAFFNEY (instructed by The Solicitor to the Post Office) appeared on behalf of the Appellants (Defendants).
Mr. COLIN FAWCETT, Q.C. and Mr. GILBERT RODWAY (instructed by Messrs. William Charles Crocker) appeared on behalf of the Respondents (Plaintiffs).
Lord Justice Lawton will give the first judgment.
This is an appeal by the Post Office, who were the defendants at the trial, from the judgment and order of Mr. Justice O'Connor, whereby he adjudged that the plaintiffs, suing as the administrators of the estate of Norman Brian West-wood, deceased, were entitled to an order for the payment by the Post Office of £12,000 agreed damages together with £1,575 interest thereon. The action had been brought by the plaintiffs under the provisions of the Fatal Accidents Acts, 1846 to 1959, and the Law Reform (Miscellaneous Provisions) Act, 1934, and arose out of Mr. Westwood's death following an accident which he sustained at the Hackney Telephone Exchange where he was employed by the Post Office as a technician.
The Post Office submitted before this Court that, however much they may have been to blame for the physical condition which was the immediate cause of the accident, they were not liable to pay the plaintiffs damages because when the accident happened the deceased was a trespasser. This submission has called for a detailed examination of the evidence upon which the trial judge had found that the deceased had not been a trespasser. The Post Office conceded that if this finding was right, the appeal failed. The plaintiffs' reply, broadly stated, was this: Even if the trial judge was wrong in adjudging that the deceased was not a trespasser, the plaintiffs were entitled to the damages awarded because, first, the evidence established a breach of statutory duty by the Post Office under the provisions of section 16 of the Offices, Shops and Railway Premises Act, 1963; secondly, that the deceased, being a person employed to work in the Telephone Exchange, was one of the class of persons entitled to the benefitof that Act; thirdly, that the, breach of statutory duty was the effective cause of the deceased's death; fourthly, that no deduction should be made from the damages because the deceased's alleged trespass was not to be equated with fault under the Law Reform (Contributory Negligence) Act, 1945; and, fifthly, that what he had done did not amount to contributory negligence for the purposes of that Act.
When first made these submissions were startling: it seemed an odd kind of justice which would require an occupier of premises to pay damages either in full or in a reduced amount to an employee who was injured by going to a part of the premises where he had no business to be and where he had been told in plain terms (as the deceased had been) Act to go. Mr. Fawcett's lucid development of the plaintiffs' submissions soon revealed, however, that the problem presented by the appeal was a complex one which was not covered by any authority directly in point.
Was the deceased trespassing when he sustained the accident which caused his death? The Hackney Telephone Exchange was a three-storied building with a flat roof. Standing proud of this roof at opposite ends were two structures containing machinery. One was the fan room, with which this case is not concerned; the other was the lift motor room, where the accident happened. This room contained the winding motor and apparatus for the lift which served the building. When the lift was working, the winding machinery would be in motion and whilst it was it could be a source of danger to anyone who got too close to it. Probably because of this possibility of danger, together, of course, with the need to discourage unauthorised and unskilled interference with the machinery, the door to the lift motor room was normally kept locked. On the outside of the door was a large, clear notice in these terms: "NOTICE Only the authorised attendant ispermitted to enter". One of the agreed photographs showed the position of this notice on the outside of the door. In my judgment, this notice would be understood by any intelligent person working at the Telephone Exchange who knew what the room contained to mean that he was to keep out because of some danger to be found therein. The deceased was intelligent and he knew that the room contained winding machinery. The "authorised attendant" to whom the notice referred was one of the Post Office's maintenance staff who at regular intervals greased and oiled the winding machinery and, as and when the need arose, repaired it. He came from an engineering depot at the Walthamstow Telephone Exchange. After each visit he normally locked the door and left the key tucked behind an electric conduit pipe near the door.
For the convenience of those engaged on maintenance work, the floor of the lift motor room had a trap door which opened on to a landing below; the object was, no doubt, to enable heavy pieces of equipment to be hauled up rather than carried up. The trial judge found that this trap door was not of sound construction. That finding has not been challenged.
One further descriptive fact about the lift motor room must be stated. It had a casement window which opened on to the flat roof.
Access to the flat roof was by means of two staircases at opposite ends of the premises. At the top of each staircase there were two doors: one led directly on to the roof, the other to the machinery rooms, which stood proud of the flat roof. The door giving access to the flat roof at the fan room end of the premises was normally kept unlocked: the similar door at the other end was sometimes locked and sometimes unlocked. The key to this door was normally kept in the supervisor's office. When the door was locked it was physically possible to get on to theflat roof from the top of that staircase by unlocking the door of the lift motor room with the key left behind the electric conduit, passing round the winding machinery and climbing through the casement window.
The fatal accident to the deceased occurred at about 11 a.m. on the 7th November, 1969. Long before that date it had become the practice for some of the technicians to go on to the flat roof from time to time for a few minutes' break from work. This practice was known to, and accepted by, those in authority at the Telephone Exchange. Shortly before 11 a.m. on the 7th November, 1969, at least five technicians went on to the flat roof for a break. Two got there by way of the staircase where the fan room was. The door at the top of that staircase was in its usual condition of being unlocked. The others - and the deceased was one of them - used the staircase by the lift motor room. When they got to the top they found the door leading on -to the roof was locked but the door leading into the lift motor room was ajar. They all entered the lift motor room and got on to the roof through the casement window. After a few minutes on the roof about four of the men - and again the deceased was one of them -started to return to their work by passing through the lift motor room. Whilst the deceased was doing so he trod on the trap door; it gave way beneath him. He fell on to the landing below, whereby he sustained severe injuries from which he died a fortnight later.
The trial judge made the following finding about the deceased's presence in the lift motor room: "I have come to the conclusion", he said, "that he was making a use of an unauthorised but accepted means of access to the roof. I hold that he was not a trespasser". Earlier in his judgment, when reviewing the evidence, he said: "I am also satisfied that the management in fact knewthat it" (the lift motor room) "was being so used, and as nobody could see any harm in it a blind eye was turned to it".
Before this Court the Post Office have submitted that there was no evidence to support the finding that the lift motor room was an accepted route. We were invited to look at all the evidence on this point and we have done so. It came from four witnesses. A Mr. Lewin said that he had passed through the lift room window "a couple of times just occasionally". A Mr. Whithread said that only once before he had found the door which opened on to the roof unlocked, and referring to the day of the accident he said: "But on this particular occasion I had gone up there first and I would naturally have gone out through the door that leads on to the roof and that had been locked and the other door was ajar so I went in that way". This witness clearly did not prove that the use of the lift motor room was a normal means of access to the roof. A Mr. Fisher said that he had used the lift motor room as a means of access to the roof when he had found the roof door locked. He did not say how often he had passed through the lift motor room. None of these three witnesses suggested that the man-agement had known anything about their use of the lift motor room. The trial judge's finding that the lift motor room was an accepted means of access must have been founded either on something said by the remaining witness called for the plaintiffs, a Mr. Kelly, or on an admission by the Telephone Exchange supervisor, a Mr. Stuckey, who gave evidence for the Post Office. Mr. Kelly said that before the day of the accident he had passed through the lift motor room to get on to the roof but he gave no evidence as to how often he had done so. His evidence as to the amount of use...
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