Wigley v British Vinegars Ltd

: I will ask Lord Justice Davies to deliver the Judgment of the Court in this case.

This is a appeal by the Defendants from a judgment of Mr Justice Atkinson, dated 26th October, 1960. The learned Judge awarded to the Plaintiff a total sum of £794.4 6d. damages under the Fatal Accidents Acts and the Law Reform ( Miscellaneous Provisions) Act in respect of the death of her husband, which occurred when he was working as a window-cleaner at the Defendants premises at Tower Bridge Road, London, on the 29th April, 1958.

No question arises in this appeal as to the amount of damages. Moreover, the Plaintiffs claim at common law was withdrawn at the trial for reasons which we shall state hereafter. The sole question for us is whether the learned Judge was right in deciding, as he did, that the Plaintiff had established that the. Defendants had been guilty of a breach of their duty under Section 26, sub-section (2), of the Factories Act, 1937, and that her husband's death was a result of such breach.

The deceased man was in business on his own account as a window-cleaner, under the style of The Ever Ready Window Cleaning Services. He was 41 years ofage and an experienced window-cleaner. For some twelve months prior to his fatal accident he had had a contract with the Defendants to clean once a month the windows of their premises. These premises were admittedly a factory within the meaning of the Factories Act. F'rom October, 1957, the deceased had been assisted in his business by his son, who at that date was 16 years old.

The part of the Defendants' factory in which the deceased was working was called the fermentation house. Its relevant features are to be seen in the photographs and plan which are in evidence. It was a room which contained a large vat. To accommodate this, the original first and second floors of the building had been entirely removed. The site of the window at which the deceased was working, cleaning it from . inside, can be seen at the top of photographs 1 to 3; a closer view is to be had in photograph 4. It was about 30 feet from the ground.

But there was an- important difference between the state of affairs as shown in the photographs and that which existed at the time of the accident. In the photographs it will be seen that the upper halves of the two top windows are now occupied by louvres. At the date of the accident they were glazed, each with six-pane windows similar to the other windows seen in the photographs. The left-hand one of those two windows was fixed and) immovable. But the right-hand one pivoted on lugs, the top portion swinging inwards and the bottom portion outwards. The window was 3 feet 6 inches high and 3 feet wide. The lugs on which it rested were 1 foot 6 inches from the top. The bottom portion was, therefore, heavier than the top portion, so that the window, left to itself, would close by its own weight.

The special peculiarity of this window was that it was not fitted with any sort of catch or fastener by which it could be fixed in the closed position. It necessarily followed that, while to clean the top portion from the inside would present no particular difficulty since the pressure on the glass would keep it shut, in order to clean the bottom portion it would be necessary for the man in some way to press or hold the top portion in order to prevent the bottom portion from swinging under pressure. If the window was opened beyond the horizontal Position, it would or could come away entirely from the lugs on which it swung.

This window had, according to the evidence, been cleaned by the deceased or by his son some twelve or thirteen times, inside and outside, before the day of the accident. He was, therefore, well aware of its peculiarities. The outside was cleaned from the outside of the premises; and this case is not concerned with that operation.

The ladder upon which he was working was, as it happened, supplied by the Defendants. But no sort of complaint j, made as to the condition of the ladder. It was admittedly a good and sound ladder - a triple extension one - in every respect. In. the accident it did not tip or fall in any way. Precisely how the deceased came to fall is a matter of inference or even conjecture. No-one saw the accident. Shortly after 4 p. m. the deceased was found lying on the ground a little to the left of the foot of the ladder. The window had come out and was lying, broken, a little to the right of the Ladder. The deceased's wash-leather was found draped over the top rung; of the ladder. His scrim or polishing cloth was not founds It would appear from the evidence that the top of the ladder wan substantially in the same position as that shown in photograph No. 4.

The finding of the learned Judge as to how the accident happened is as follows: "Thus, the evidence here is that a man who on the evidence, was a fit and healthy man, no. - subject to attacks of giddiness a man who it was not, and really could not be, suggested was suffering at the time from any self-crested incapacity such as too much to drink, and a man as to whom it cannot really be suggested, and is not suggested, was playing the fool or doing anything stupid, has fallen.

"The inference that I draw - and I think I am bound to draw is that on this occasion this experienced and competent man, doing his job in the normal way, somehow clipped or lost his balance; and I think the reasonable inference is that that happened at the moment when the risk would be greatest - that is to say when, with both hands occupied, the left hand to hold the upper part of the window in position and the right hand to do the cleaning, and when still in that position, with no hand-hold at all, he fell, or lost his balance and fell".

That inference of fact was not challenged in this Court on behalf of the Appellants, though it is fair to point out that the judge's finding as to the use of the right hand and left hand respectively was a matter of speculation rather than of evidence. But it was strenuously contended by Mr O'Connor on behalf of the Defendants that the deceased in order to fall at all must have been leaning well over the side of the ladder. It is to be observed, however, that there is no allegation to that effect in the particulars of negligence contained in the Defence. What is there pleaded is that the failed to maintain his balance and so carried out his work that he fell". Hut in his Judgment the learned Judge clearly placed considerable weight upon an answer given in cross-examination by Mr Harrington, the expert witness called by the Defendants, to the effect that if the deceased was leaning well 0vsr to his right and using both hand', he was not in a secure position. And, indeed, it is very difficult to see how the deceased came to fall at all unless he was leaning beyond what, during the argument, was called "the area of safety".

On this finding the Judge held that the Defendants were in breach of their duty under Section 36, sub-section (2), of the Factories Act, 1937, and that that breach was the cause of the deceased man's death.

As we have said, the claim at common law was withdrawn at the trial. This withdrawal was based on the. well known principle illustrated by such cases as Bates v. Parker. 1953 2 Queen's Bench, 331, to the effect that where a householder employs an independent contractor to do the work, be it of cleaning or repairing, on his premises, the contractor must satisfy himself as to the safety or condition of that part of the premises on which he has to work. He is left to himself to decide how and in what manner he win perform his task.

It was necessary, therefore, for the Plaintiff in order to succeed to have recourse to the Factories Act, 1937, Section 26, sub-section (2). That sub-section provides as follows: "Where any person is to work at a place from which he will be liable to fall a distance more than 10 feet, then, unless the place is one which affords secure foothold and, -where necessary, secure handhold, secure shall "be provided, as fat as is reasonably practicable, by fencing or otherwise, for ensuring his safety. "The reference to 10 feet has been altered since the date of the accident to 6 feet 6 inches. (Factories Act, 1959, Section 5)

It was decided in the case of Lavender v. Diamints Ltd., 1949 1 King's Bench 585, a case under Section 26, sub-section 1, 0f the Factories Act, that "any person" in Section 26 includes an independent contractor and that consequently the duty owed under the section by the occupier of a factory is owed no less to an independent contractor than to his own employees. Mr O'Connor has conceded throughout in this case that that authority is as binding as to section 26, sub-section 2, as to Section 26, sub-section l, and that therefore, as the law stands, the Defendants in this case owed to the deceased duty laid down by Section 26, sub-section 2. But he indicated that, if necessary, he would argue in the House of Lords that Lavender v. Diamints Ltd, was wrongly decided,

These problems, therefore, confronted the learned Judge and have confronted us. First, it being conceded that the deceased was to work at a place from which he was...