White (Arthur) (Contractors) Ltd v Tarmac Civil Engineering Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Reid,Lord Morris of Borth-y-Gest,Lord Pearce,Lord Upjohn,Lord Pearson |
| Judgment Date | 17 October 1967 |
| Judgment citation (vLex) | [1967] UKHL J1017-2 |
| Date | 17 October 1967 |
| Court | House of Lords |
[1967] UKHL J1017-2
House of Lords
Lord Reid
Lord Morris of Borth-y-Gest
Lord Pearce
Lord Upjohn
Lord Pearson
Upon Report from the Appellate Committee, to whom was referred the Cause Arthur White (Contractors) Limited, against Tarmac Civil Engineering Limited, et è contra, that the Committee had heard Counsel as well on Monday the 10th, as on Tuesday the 11th and Wednesday the 12th, days of July last, upon the Petition and Appeal of Arthur White (Contractors) Limited, of Meadowfield, Ponteland, in the County of Northumberland, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 9th of December 1965, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Petition and Cross Appeal of Tarmac Civil Engineering Limited, whose registered office is situated at Ettingshall, Wolverhampton, in the County of Stafford, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of Her Majesty's Court of Appeal of the 9th of December 1965, so far as therein stated to be appealed against, might be reviewed before Her Majesty the Queen, in Her Court of Parliament, and that the said Order, so far as aforesaid, might be reversed, varied or altered, or that the Petitioners might have such other relief in the premises as to Her Majesty the Queen, in Her Court of Parliament, might seem meet; as also upon the Case of Tarmac Civil Engineering Limited; as also upon the Case of Arthur White (Contractors) Limited, lodged in the said Original and Cross Appeals; 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 Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal, of the 9th day of December 1965, in part complained of in the said Original and Cross Appeals, be, and the same is hereby, Reversed, and that the Judgment of the Honourable Mr. Justice Sachs, of the 22d day of January 1965, thereby Varied, be, and the same is hereby, Restored: And it is further Ordered, That the Respondents in the Original Appeal do pay, or cause to be paid, to the said Appellants in the Original Appeal the Costs incurred by them in the Courts below, and also the Costs incurred by them in respect of the said Original Appeal to this House, the amount of such last-mentioned Costs to be certified by the Clerk of the Parliaments: And it is further Ordered, That the said Cross Appeal be, and the same is hereby Dismissed this House: And it is further Ordered, That the Appellants in the Cross Appeal do pay, or cause to be paid, to the said Respondents in the Cross Appeal the Costs incurred by them in respect of the said Cross Appeal to this House, the amount of such Costs 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 Queen's Bench Division of the High Court of Justice, to do therein as shall be just and consistent with this Judgment.
My Lords,
I have had an opportunity of reading the speeches of my noble and learned friends and I agree that this appeal should be allowed.
My Lords,
On the 25th July 1962 certain work was being done at a site on Thornaby airfield by Tarmac Civil Engineering Limited (Tarmac). Main sewerage pipes were being laid. For the purposes of the work Tarmac had entered into a written contract with Arthur White (Contractors) Limited (White) for the hire of an excavator. As part of the contract a Driver or Operator was supplied by White to work the excavator. The excavator was being used on the 25th July to lift a section of piping and to move it to and then to lower it into a deep trench. There was a pause because it was found that some widening of the trench was necessary. Thereupon the driver or operator of the excavator, one Best, lowered the section of the piping until it rested on the ground. The piping had been attached to the large excavator bucket which was suspended from the boom of the excavator. Best pressed down his brake pedals and applied the locking mechanism. He left the boom and bucket (which had a combined weight of about four tons) suspended in the air at an angle of about 45 degrees to the ground. The bucket bottom was then some five feet above the top of the section of piping. Leaving the engine running idly Best left his driving cab and occupied the time of waiting by doing some cleaning and greasing. Some few minutes later the boom and bucket suddenly descended and the bucket struck a Mr. Spalding, whose duties as an engineer employed by the Thornaby-on-Tees Corporation had brought him to the spot. He was very gravely injured. He brought an action against both Tarmac and White and obtained judgment for a substantial amount against both.
The reason why the boom and bucket fell was that there was brake failure due to maladjustment; during the few minutes of waiting the brake drum cooled and contracted and the grip on the brake drum failed. It was contrary to proper practice for an operator to 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 and so allow the brake to slip and the bucket to lower off. It was wrong, therefore, to leave the boom and bucket suspended as they were left. No machine should be left for long periods with the bucket or load off the ground and the bucket or load should be grounded whenever an operator leaves the controls even if only for a few minutes.
The learned Judge held that Best was negligent in two main respects:— (1) he should not have left the boom and bucket in suspension whilst he was waiting for the trench to be made finally ready nor should he have got out of the cab; (2) he had failed to adjust the brake drum carefully with the result that on the day of the accident it was maladjusted; there had been improper brake pedal use; it had been his duty in the period since the hiring began on the 18th June to adjust the brake drum carefully.
The maladjustment brought it about that the grip, when the brake was put in its locked position, was insufficient to hold the drum when it contracted as a result of cooling during a waiting period. The accident would not have happened if Best had lowered the boom instead of leaving it in suspension. It would not have happened if Best had carefully attended to brake adjustment.
From the point of view of Mr. Spalding, negligence in either one of the two respects would have sufficed to entitle him to recover damages in an action against Best's employer. Mr. Spalding proved negligence in two respects; he could have succeeded had he only proved one. So far as he was concerned it was held that White continued to be the general employer of Best so as to be responsible for Best's negligence.
As a result of the finding of fact that Best had been negligent in failing to adjust the brake drum carefully it followed that the excavator as a lifting appliance had not been properly maintained. There was a breach of section 10 (1) ( b) of the Construction (Lifting Operations) Regulations 1961 S.I. 1961 No. 1581. That Regulation includes a provision that every lifting appliance and every part thereof shall be properly maintained. It was not in dispute that the excavator was a lifting appliance within the Regulations. Nor was it in dispute that by virtue of Regulation 3 an obligation to comply with Regulation 10 rested both on White and on Tarmac. Under Regulation 3 such a duty is imposed upon every contractor and every employer of workmen who erects, instals, works or uses any plant or equipment to which any of the provisions of ( inter alia) Regulation 10 apply.
In the action brought by Mr. Spalding inasmuch as it was held that Best had remained in the general employment of White (and as to this no point was raised in the Court of Appeal or before your Lordships) the basis of the liability of White was twofold. They were liable under the principle of respondeat superior. They were liable for breach of statutory duty. The basis of the liability of Tarmac to Mr. Spalding rested upon the breach of statutory duty of Tarmac as a contractor. That breach was the result of the lifting appliance not being properly maintained and that was due to Best's negligence.
In the circumstances to which I have referred White claimed that pursuant to the terms of the Hire Agreement they were entitled to be indemnified by Tarmac in respect of their liability to Mr. Spalding. Thy claimed primarily under Clause 8 of the Hire Agreement. That Clause, which has the heading "Handling of Plant", is in the following terms:—
"When a Driver or Operator is supplied by the Owner to work the Plant, he shall be under the direction and control of the Hirer. Such Drivers or Operators shall for all purposes in connection with their employment in the working of the Plant be regarded as the servants or agents of the Hirer who alone shall be responsible for all claims arising in connection with the operation of the Plant by the said Drivers or Operators. The Hirer shall not allow any other person to operate such Plant without the Owner's previous consent to be confirmed in writing."
The learned Judge held in their favour. Tarmac,...
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