Williams v West Wales Plant Hire Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON,LORD JUSTICE GRIFFITHS,LORD JUSTICE DILLON |
| Judgment Date | 26 July 1984 |
| Judgment citation (vLex) | [1984] EWCA Civ J0726-1 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 84/0329 |
| Date | 26 July 1984 |
[1984] EWCA Civ J0726-1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
CIVIL DIVISION
From: Mr Justice Latey (Q.B.D.), Swansea
Royal Courts of Justice,
Lord Justice Lawton,
Lord Justice Griffiths
and
Lord Justice Dillon
84/0329
and
MR JOHN PROSSER, Q.C., and MR. J. VENMORE (instructed by Messrs Andrew Thompson & partners, Swansea) appeared on behalf of the Appellant (Plaintiff).
MR C.G. LLEWELLYN-JONES (instructed by Messrs Edward Lewis Possart & Co., Cardiff) appeared on behalf of the First and Second Respondents (First and Second Defendants).
THE THIRD RESPONDENT (Third Defendant and Third Party) did not appear and was not represented.
I will ask Lord Justice Griffiths to deliver the first judgment.
This is an appeal from a judgment of Mr Justice Latey delivered on the 14th October 1983 in the Crown Court at Swansea. By that judgment he dismissed the plaintiff's claim against his employers, the first defendants, and also against the second defendants, who were the parent company of the first defendants. The plaintiff now appeals against that judgment upon the ground that the learned judge ought to have held that his employers, the first defendants, were liable to him because of their breach of Regulation 11(1) of the Construction (Lifting Operations) Regulations 1961 [S.I.1961 No.1581].
The facts can be very shortly stated. The first defendants are a company that owns and hires out heavy plant such as cranes and excavators. They hired out to the third defendant, a builder, an 18 ton crane, together with the services of the plaintiff as a driver, and it is significant that they hired out the crane for the purpose of it being used in a building operation. This much is admitted in the defence of the first and second defendants.
During the course of the building operation, which involved using the crane to lift the constituent parts of a fairly simple building into position, the crane was placed upon a piece of land which was supported by a retaining wall. Unfortunately the weight of the crane was such that the retaining wall collapsed, the ground collapsed under the crane, it fell over, and the plaintiff, who was he driver, was trapped in the cab and quite seriously injured.
The short point that arises in this appeal is whether, in those circumstances, his employers, the owners of the crane, who had hired it to the third defendant, were liable under the Construction (Lifting Operations) Regulations 1961.
There is no dispute that the work being undertaken at the time of the accident was a building operation within the meaning of Regulation 2 of the Regulations. Regulation 3 of the Regulations provides for those who are to owe the duties under the Regulations, and then, with more particularity, the nature of the duties they owe. It opens as follows.
Sub-regulation 1:
"(1) 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 then, under sub-para. (a) and (b) it designates the particular duties owed by those who, as contractors or employers of workmen, are undertaking building operations.
The short point that arises in this case is whether or not the first defendants, the owners of the crane, were "under-taking" a building operation within the meaning of Regulation 3(1). The argument of the first defendants which found favour with Mr Justice Latey is that, giving the words their ordinary meaning, no one would say that the person who had hired out the crane was undertaking a building operation but that they would naturally, if asked, say that the builder was undertaking the building operation, in this case the third defendant.
The argument on behalf of the plaintiff, on the other hand, is that to determine whether or not a person is undertaking an operation one looks at the actual work being carried on at the time of the accident, and if it appears that a contractor and/or employer is, through a workman of his, actively engaged in a building operation, he is undertaking it for the purpose of Regulation 3.
The learned judge, in the course of giving his judgment, said this:
"The plaintiff contends that they are"—I interpose, undertaking a building operation. "He says that though all they did was to hire out the machine and its operator, they were nonetheless 'undertaking' building operations and were 'working or using' the crane: an argument which (if I may say so) was ably and persuasively presented by Mr Venmore. But it does in my view depend on a strained and not an ordinary use of the language of the Regulation. Moreover, contend the defendants, it simply would not be practicable in the building and construction industry to impose these obligations upon those essential elements in the industry whose sole function is to hire out plant and operators to others, and it cannot have been the intention of Parliament to do so in using the language of the Regulation".
Then he continued:
"In my judgment the interpretation contended for by the first and second defendants is correct. Plaintiff's counsel acknowledged that there is no reported case to support the interpretation for which he contends. The contention of the first and second defendants is in line with the reasoning and decision of the entire House in Gallagher v. Wimpey & Co. (1951) Scottish Law Times 377 interpreting similar words".
It is, in my view, exceedingly unfortunate that the learned judge was not referred to two decisions which do give powerful persuasive support to the plaintiff's argument. Furthermore, it is clear that the learned judge did not have the opportunity of seeing the decision in Gallagher v. Wimpey and had to rely upon a note of it in the two textbooks. Had he had the opportunity of seeing the decision he would have appreciated that so far from supporting the defendants' contention it did open the door to the plaintiff's argument.
I will turn first to a case in the House of Lords, Arthur White (Contractors) Ltd. v. Tarmac Civil Engineering Ltd. (1967) 1 W.L.R. 1508. The facts in that case were, for all practical purposes, identical to the facts in the present...
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