White (Arthur) (Contractors) Ltd v Tarmac Civil Engineering Ltd
Jurisdiction | England & Wales |
Judge | LORD JUSTICE SELLERS,LORD JUSTICE RUSSELL,LORD JUSTICE SALMON |
Judgment Date | 09 December 1965 |
Judgment citation (vLex) | [1965] EWCA Civ J1209-1 |
Court | Court of Appeal |
Date | 09 December 1965 |
[1965] EWCA Civ J1209-1
In The Supreme Court of Judicature
Court of Appeal
(From: Mr. Justice Sachs - Durham)
Lord Justice Sellers
Lord Justice Russell and
Lord Justice Salmon
Mr. B. BRIAN GIBBENS. Q. C. and Mr. BRUCE STEPHEN (instructed by Messrs. Church, Adams, Tatham & Co., Agents for Messrs. Cohen, Jackson & Scott, Stockton-on-Tees) appeared on behalf of the Appellants (First Defendants).
Mr. JOHN COBB. Q. C. and Mr. DAVID SAVILL(instructed by Messrs. Levinsons, Walker & Lister, West Hartlepool) appeared on behalf of the Respondent the Plaintiff.
Mr. BERNARD CAULFIELD. Q. C. and Mr. R. P. SMITH (instructed by Messrs. John H. Sinton & Co., Newcastle-upon-Tyne) appeared on behalf of the Respondents the Second Defendants.
On the 26th July, 1962, the plaintiff in this action met with an accident. He was then 49 and was an Assistant Resident Engineer, or Clerk of the Works, employed by the Thornaby-on-Tees Corporation in relation to work that was being done for them on the site of the Thornaby Airfield. At about 4.15 p.m. on that day the plaintiff was at his work on the airfield and unfortunately was standing under the boom of a mobile crane or excavator when there was a collapse of the boom and he suffered very serious injuries for which the learned judge awarded a total sum of £19,158 odd against both of the defendants. The amount awarded to the plaintiff has now been accepted, the appeal on that has been withdrawn, and the only issue for consideration before this Court arises between the two defendants.
Thornaby Airfield is a large area and for such work as had to be done there, which has not been outlined to us in detail, Tarmac Civil Engineering Limited ("Tarmac" as I will describe them), who are the first defendants, were general contractors at this time in July, 1962, and on that day they were engaged in laying concrete circular pipes in a deep trench. Some few weeks before, on the 18th June, 1962, for the purposes of their work Tarmac had hired from the second defendants, Arthur White (Contractors) Limited (to whom I will refer as "White") a Ruston-Bucyrus excavator which is depicted on a photograph which was put in before the Court. It is a vehicle which was hired not only as a vehicle but also with a driver and his name was Best. It had (as far as material in this case) a long boom to which was attached a mechanical digger. It was also used on occasion for lifting things as well, apparently with the digger or scoop still attached, and it was used for lifting other things on this occasion — the concrete pipes.
Directions were given as to what work was to be done by Tarmac but precisely who gave those directions as to what should be done and where it should be done has not been investigated andone can only say that the whole vehicle, with the driver, was lent for the purpose of Tarmac's work and that was to he done and was in fact being done under the directions of their servant. On the occasion of this accident there has, I think, been no dispute as to the way it happened, recorded by Mr. Justice Sachs in his judgment, the judgment from which this appeal comes. A direction had been given to Best, the crane driver, to collect a section of the circular piping and to bring it to the trench. When it arrived the trench was not ready apparently for its reception and another direction was given him to take it away and deposit it. It was put down, and the boom was then left suspended at an angle of some 45° and was not made secure by lowering it - probably only 5 or 6 feet, with the extension of the excavator on the end of the boom - to the ground in security, nothing was said apparently about how long it would be before the pipe had to be picked up again and brought to the trench or how long it would be before this machine was required to perform some other function. In the circumstances the driver, Best, left the boom suspended in that position, the position in which it was after depositing its-load, left the engine still running but idling, and apparently got out of the cab. He was out for some little time and then he returned and was doing some work of cleaning up or giving attention to the cab. Whilst that was happening and after an interval of some ten minutes after the last task this excavator had performed, the hoom collapsed. Unfortunately the plaintiff was standing under it and he received very bad injuries indeed to his spine and elsewhere.
The learned judge investigated first the causes of that collapse. Several were put forward. I need not deal with those which were rejected but the learned judge arrived at the causes which have been accepted before this Court. They were twofold. The first was, leaving the boom suspended in the position in which it was. That he held to be (as clearly it was) a dangerous position in which to leave a boom weighing with the bucket some 4 tons, just standing idle. He made referenceto a statement in a manual which was provided. It is only, I think, a statement of what is common knowledge with those who have to do with cranes and such-like with booms — that "The operator should never dismount from his machine, leaving the bucket off the ground and held on the brake. The normal operation tends to warm up and expand the brake housing and if the machine is left with the bucket held on, the brake housing may cool off and contract, thus allowing the brake to slip and the bucket to lower off". That is in relation to this particular machine with a bucket on, but I think it is well recognised, and the evidence seems to show, that it is a dangerous position at any time to leave a boom in suspension unnecessarily.
The other cause which the learned judge found was (and it seems strictly here to have been a concurrent cause) that the brake drum was at the time defective. It is not necessary now, I think, to investigate, as the learned judge did, precisely what the defects were or how they came about. It seems that there had been a stop which if it had been left in position would have minimised the risk of the brake becoming defective because it controlled the use of the brake by the operator. But for his own purposes it would appear that the stop had been removed by Best, which meant that the lever had to go further down every time the brake was applied and that resulted in maladjustment of the brakes. There was therefore an unnecessary strain on the brake drum with the boom elevated, the brake was defective, and there was the element of contraction which may have taken place as the brake housing cooled off. The second ground on which the judge found there was blame, as a cause to which this accident should be attributed, was therefore the brake drum maladjustment. On those two findings the learned judge gave judgment against both of the defendants.
Best (as I shall have to investigate more fully in a moment) was the permanent servant, in the permanent service, of White and had been loaned with this machine. The negligence of Best was held to be the fault of his employers, White, inrelation to what he did on that occasion, bringing about this accident.
Both the parties were in breach of statutory regulations under the Factories Act, the Construction (Lifting Operations) Regulations of 1961. Regulation 10 (1) provides that "Every lifting appliance and every part thereof including all working gear and all other plant or equipment used for anchoring or fixing all such appliances shall (a) be of good mechanical construction, sound material, adequate strength and free from patent defect; (b) be properly maintained".
The obligation to comply with those requirements is placed by Regulation 3 of the Regulations in this way: "It shall be the duty of every contractor, and every employer of workmen, who is undertaking any of the operations or works to which these regulations apply…. and it shall be the duty of every contractor, and every employer of workmen, who erects, instals, works or uses any plant or equipment to which any of the provisions of Regulations 8 to 46, 48 and 49 (7) apply, to erect, instal, work or use any such plant or equipment in a manner which complies with those provisions". It was without dispute that under the Regulations both parties had to comply with Regulation 10, which had been infringed.
So there were two causes of this accident operating concurrently. In the course of the argument the learned judge was asked to apportion the responsibility as between those two acts of default, whether it be at common law or under the statute, between the two separate causes, for the reason which I will indicate in a moment. It may be (although there seems a little doubt about it) that the learned judge had in mind an apportionment which would have been appropriate if this matter had called for consideration under the Law Reform (Tortfeasors) Act if the acts had been separate and individual acts of different servants of the two parties. What he did was to attribute 40 per cent. to lack of maintenance of the brake and the deficiency of the brake, and 60 per cent. to what he called "the other breaches",which I take to be leaving the boom in that dangerous condition of suspension. There has been argument in this appeal (which has been brought by the second defendants) on that apportionment but for myself I think it is a fair apportionment of the respective contributions which these two matters made towards this accident.
This question becomes material because although judgment was entered for the plaintiff against both of the defendants for the full amount (as indeed it properly should be) the second defendants have sought to place the responsibility under the arrangement which was made with them, on the facts of the case, wholly upon Tarmac. The judge acceded to...
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