Wood v Bentall Simplex Ltd
| Jurisdiction | England & Wales |
| Judge | JUSTICE BELDAM,LORD JUSTICE STAUGHTON,LORD JUSTICE FOX |
| Judgment Date | 27 February 1992 |
| Judgment citation (vLex) | [1992] EWCA Civ J0227-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | 92/0187 |
| Date | 27 February 1992 |
[1992] EWCA Civ J0227-7
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE LEONARD)
Royal Courts of Justice,
Lord Justice Fox
Lord Justice Staughton
Lord Justice Beldam
92/0187
1984 W. No. 1101
MR BERNARD LIVESEY Q.C. and MR S. KING (instructed by Messrs. Vizards) appeared on behalf of the Appellants.
MR R. HETHERINGTON (instructed by Messrs. Wansbroughs Willey Hargrave) appeared on behalf of the Respondent.
On 15th February 1983 a tragic accident occurred at Land Farm, Hewish, near Weston-Super-Mare. It was a family farm run by a partnership, J.R. Wood & Sons, consisting of Mr J.R. Wood, his wife and their sons Michael and Roger Wood. Shortly after midday, Martin Fewings, a 17- year-old farmhand employed on the farm, entered an underground tank, part of a slurry storage system, to retrieve a cone valve. As he was about to emerge, he was overcome by lack of oxygen, and fell back into the tank. Roger Wood went into the tank to rescue him, but he too was overcome. Both of them died.
Roger Wood's widow brought this action for the benefit of herself and the two young children of the deceased, for damages under the Fatal Accidents Act, 1976. She claimed that the accident was the fault of the respondent, Bentall Simplex Ltd., who had supplied the slurry system. The action was heard by Leonard J., who gave judgment on 27th April 1989. In the course of the hearing the appellant admitted its liability for the accident, but pressed its contention that the deceased himself was in part to blame, and that the damages recoverable by the respondent should be reduced in proportion to his liability. The Judge found that the accident was solely the fault of the appellant, and awarded the respondent a total of £224,593.
In this appeal the appellant argues that the learned Judge ought to have found the deceased responsible to the extent of one-third or one-quarter. In addition, the appellant contends that the Judge should have deducted from the award the value of the deceased's share of the assets of the farming partnership which on his death intestate fell to be divided between the respondent and the children.
Land Farm was of about 300 acres. It was run as a dairy farm supporting 120–160 cows, but shortly before the accident the partnership had begun to diversify into beef production. The deceased, and his elder brother Michael, were the working partners in the farm, taking over management from their father. At the time of his death the deceased was 35 years of age. He married the respondent, Mrs Linda Mary Wood, in 1978. At the date of the deceased's death they had one son, Thomas, aged two and a half, but six weeks later a second son, John Roger, was born.
The deceased had attended Agricultural College where he was an outstanding student. He had considerable experience working on farms, and in 1972 an opportunity arose for the family to farm two farms at Rolstone Hewish near Weston-Super-Mare. The deceased applied for the tenancy, but as he was then only 24 years of age, the tenancy was taken by a partnership which included his father and mother, although he and his brother Michael effectively took over the running of the farms. In 1975 the partnership bought the freehold, and in 1981 added an additional ten acres to the farm. The farm was run efficiently and successfully. It had accommodation for both of the sons and their families. The deceased lived with his family in Havage House. A substantial part of the profits of the partnership was devoted to paying off borrowings and improving the farm and buildings. Over £90,000 had been retained in the business for these purposes, and by 1983 the farm was unencumbered and at the time of the accident the deceased and Michael Wood were entitled to draw a salary of £20,000 from the partnership. Profits after the salaries were shared equally between the deceased, Michael Wood, and their parents Mr and Mrs J.R. Wood, so that the deceased's share was one-third.
In running a dairy farm the storage and disposal of slurry is an essential and important operation. The appellants, Bentall Simplex Ltd., had designed and developed a system to obviate leeching of the by-products of the slurry from the customary open storage into the water table and adjoining ditches and dykes. It was called the Aerostor System. To understand why the accident occurred, it is necessary to give a brief description of the system.
The main components of the system were two tanks joined by pipe work. The slurry from the stock yard was first collected in an underground collection tank. This tank was situated near the stock yard so that the slurry could run or be swept into it. Over the entrance to the collection tank a grid was fixed to prevent pieces of wood and other debris from blocking the pipe work.
The collection tank could be pressurised by a compressor so that the slurry was forced from the collection to the storage tank where it was aerated to prevent it solidifying. There were two valves in the pipe work connecting the collection tank to the storage tank. One was a simple screw down gate valve which closed the connection between the two tanks. The other valve, which was close to the gate valve, consisted of two flaps which could be operated to allow the slurry to pass either to a take-off pipe, which could be connected to a mobile tanker for taking the slurry to the fields, or to the storage tank via the gate valve. The mobile tanker was equipped with a hose and suction pump which could be used to extract slurry from the collection tank without pressurising it.
When the collection tank was pressurised, it was necessary to seal the entry hole and a simple device in the shape of a cone suspended from an arm attached to a counter-weight caused the cone to close the entrance. Pressure applied by compressed air to the tank would effectively seal the cone against the underside of the flange of the entrance hole. The cone was connected to the counterbalanced arm by a chain to which a tail of rope was attached. If it was necessary to enter the tank, the method adopted was to lower the cone into the tank by the tail of rope so that it could subsequently be lifted and reattached to the arm. The slurry system installed at Land Farm was ordered from the appellant in about July 1981. Most of the installation work was done by the appellant later that year or early in the following year. Part of the building work necessary was, however, carried out by the partnership. In particular, it constructed the grid across the entrance to the collection tank. As made, it did not correspond exactly with the recommended grid because the distance between the bars was greater than that suggested. The bars were, however, close enough to prevent the feet of cattle or of those working on the farm from slipping into the entrance to the collection tank.
The bars of the grid, or at least one of them, would have to be removed for access to be gained to the entrance to the collection tank. At some stage, no doubt to gain access to the tank, one of the bars of the grid appears to have been removed and not replaced.
The partnership also constructed a small enclosure around the entrance to the collection tank. The flange of the entrance was bolted into position and the large nuts around the circumference had, in making the enclosure, been covered with a loose form of concrete. It was against the underside of this flange that the cone seated when the collection tank was pressurised. The object of bolting the flange into position was to make the flange and the cone removable when it was necessary to carry out maintenance to the seal. When the installation was complete, the appellant provided an Operating Manual, and Mr Mottershaw, their engineer, attended to show the deceased and Michael Wood how to operate the system. When sufficient slurry had collected in the collection tank, the cone valve was raised so that the top of the tank was sealed and compressed air was introduced from the compressor. The valve in the take-off pipe was closed, but the gate valve was open. The compressed air then forced the slurry out of the bottom of the collection tank, along the pipe work and up into the storage tank. When the collection tank was empty, the gate valve was closed so that the slurry was retained in the storage tank. The cone valve in the top of the tank was then lowered and the collection of slurry could begin again.
Slurry could be drawn from the storage tank for putting on the land or other disposal by opening the gate valve and allowing the slurry to run back into the collection tank. Because of the size and height of the storage tank, the slurry was under considerable pressure and ran freely either into the take-off pipe or back into the tank. The slurry could be loaded into the tanker from the storage tank by closing the gate valve, raising the cone seal, opening the valve in the take-off pipe and introducing compressed air to push the slurry up the take-off pipe into the tanker. When the tanker was full, the compressed air was shut off, the valve in the delivery line closed, and the cone valve opened. So the process of collection and storage of the slurry could continue.
As previously mentioned, the tanker could be filled by using its own pump to suck the slurry from the collection tank without using the compressor which had proved to be somewhat unreliable. From time to time the tanker was filled in this way.
After initially demonstrating how the system...
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