England and Wales Court of Appeal (Civil Division) Decisions

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Cite as: [1958] 2 QB 110, [1958] 2 WLR 900, [1958] 2 All ER 265, [1958] EWCA Civ 2

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JISCBAILII_CASE_TORT

		BAILII Citation Number: [1958] EWCA Civ 2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL.

Royal Courts of Justice.

Date: Thursday 24th April 1958

B e f o r e :

____________________

Between:

	GILBERT WILSON
	-v-
	TYNESIDE WINDOW CLEANING COMPANY (sued as a firm)

____________________

Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Ltd.,
Room 392, Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London, W.C.2).

____________________

Mr. G.S. WALLER. Q.C. and Mr. R.P. SMITH (instructed by Messrs. Gregory Rowcliffe & Co., Agents for Messrs. Hadaway & Hadaway, Newcaetle-upon-Tyne)
appeared on behalf of the Appellant (Plaintiff).
Mr. R. MARVEN EVERETT. Q.C. and MR. .R.C.H. BRIGGS. (instructed by Messrs. Barlow Lyde & Gilbert)
appeared on behalf of the
Respondents (Defendants).
____________________

HTML VERSION OF JUDGMENT
____________________

(without calling upon Counsel for the Respondents).

LORD JUSTICE JENKINS: I will ask Lord Justice Pearce to deliver the first Judgment.

LORD JUSTICE PEARCE: The Plaintiff appeals from a Judgment of Mr. Justice Donovan given at the York Assizes on the 14th June, 1957, dismissing the Plaintiff's claim for damages for personal injury suffered in an accident sustained by him when he was working for the Defendants as a window cleaner. The Plaintiff alleged negligence against the Defendants. The Defendants denied negligence but made no allegation of contributory negligence. The learned Judge assessed the damages, in case of appeal, at £4,320. The Plaintiff was a man of 56 at the time of the accident. He had been a window cleaner all his working life, and was a trained and very experienced man in that occupation. Ha had worked for the Defendants for 13 or 14 years. He had been a charge-hand with his previous employers, and acted in that capacity with the Defendants when he was needed to do so. He had taught many hundreds of persons how to carry on their trade.

The Defendant firm had. been in existence for 60 years, employing at times up to fifty men, and so far as accidents were concerned had apparently a good record. The Defendants had a contract to clean the windows of the Newcastle Breweries once a quarter, a task which took two men three or four days. The Plaintiff had done work on the breweries frequently in the last ten years before the accident. There was no inspection of the premises before the starting of the work. On the 3rd September, 1954* the Plaintiff and another man went to perform the quarterly cleaning. In due course the Plaintiff cleaned the window with which this case is concerned. It la 12 ft. from the ground; it overlooks a street with a rather steep incline. He had cleaned that same window three months before and on other previous occasions. There had originally been handles on each side of the underneath of the upper sash, but for soma two or three years there had been only one handle remaining, namely, that on the right hand side. The room to which the window belonged was a kitchen. The steam condensed and ran down, causing the woodwork to rot. To the Plaintiff it appeared "all rotten", to use his own words; and he said that the sash was always a bit stiff. The Plaintiff first cleaned the window from the inside. Then he put up his 28 ft. extending ladder and wedged it firmly on the ground. Standing on the ladder, ho cleaned the bottom half first. Then ha took hold of the handle with his right hand and put the fingers of hie left hand over the putty en the bottom bar of the top sash, in order to pull the sash down. He had so used that handle three months before and en previous occasions. He gave a pull on the handle. It came away in his hand, so that he lost balance and fell off the ladder, suffering severe injuries. The learned Judge found that ha gave a pull of sufficient strength to bring the top half of the window down had the handle remained firm. The Appellant complaints of that finding as putting the strength of the pull toe high. But the learned Judge took into account the fact that the pull was enough to throw the Plaintiff off balance; and it seems to me that it was a reasonable finding, en the evidence.

When the Plaintiff went to work for the Defendants he knew that ha should not trust handles on windows but he had never himself experienced the coming off of a handle. The Defendants had never given him general safety instructions, or said anything to him specifically about handles. But in answer to the Judge's question "When you first went to this company if someone had said to you 'Never trust handles on windows' would that have been something you knew already?*, the Plaintiff said "Something I knew already". The learned Judge describes the extent of the Plaintiff 'a knowledge and information in these words: "If in the course of his work the Plaintiff came across a window the cleaning of which presented some unusual difficulty, and the Plaintiff was in doubt whether he could clean it safely, then the system was that be should leave the window uncleaned, report the fact to the Defendants, and ask for further instructions. He was told to do this when he first joined the Defendant firm in 1942. Mr. Waller says that to call that a system was putting the matter higher than the evidence justified. But I do not think that that criticism is made out.

Then the learned Judge continued:

"The Plaintiff had cleaned this particular window many times previously himself, the last occasion being the June before the September when he met with his accident. In that June, he had pulled the top half of this window down all right despite the missing handle, though the window was always a bit stiff to move. He knew that the window had had only one handle for years, and, as already mentioned, he saw that the state of the woodwork of the window was rotten. He knew from experience that one should not trust to handles en windows, that is, that he should not pull on them under any circumstances in which, if the handle gave way, he would run the risk of injury. He knew that he should test the handle first. No general instructions were given to him when he joined the Defendants as to how he should clean windows. He already knew. No warning against using window handles as handholds lest they should give way was given to him, but ho was already aware of this danger. He had cleaned very many windows having handles similar to the one in the present case: such handles were common in the Newcastle district, and, while one had never come off before while ha was holding it, he was aware of the possibility that one might -- 'I knew all along' ha said 'that one should not trust to handles'". .

There was evidence that handles coming off are frequent causes of accidents. Mr. Davis, a surveyor called for the Plaintiff, made four criticisms of the Defendants' behaviour. First, he said that there ought to be printed rules; and he produced a booklet which set out clearly what are the perils and what matters should be avoided. Me said that that booklet ought to be given to the employees and that they should be made to sign a document to say that they had read it, because although they might be aware of the warnings contained in it it was necessary to drive those warnings home. Secondly, he said that the men should he told that where there was only one handle remaining en an upper sash, the sash should he opened from the inside. Thirdly, he recommended regular visits, say once or twice a year, by someone in authority, to see that the employees were doing their work properly and that all was going well - that being chiefly designed to impress on them the importance of obeying safety rules* He admitted that there was a field where you had to leave it to the men to find defects and report. He had no knowledge of what the practice is in the window-cleaning trade; and he had no knowledge of preliminary inspections being made before the men worked on a particular job; but he had heard of people coming round as overseers to see that the work was being properly done. Now the learned Judge's findings of fact are not seriously challenged. There are four minor criticisms, two of which I have mentioned, where Mr. Waller says that the learned Judge gave a wrong emphasis to the evidence. I do not think that any valid criticisms of the learned Judge's findings of fact have been made out. In a long and careful Judgment, he dealt with all the relevant facts and all the contentions put forward by the Plaintiff. Mr. Waller, in his very fair and careful argument for the Appellant, bases his contentions on two main grounds: first, that it is the duty of the Defendants to provide a place of work as safe as reasonable care and skill can make it. The accident (he says) shows that this place of work was not safe. That duty is always on the Defendants, whether delegated or not, as is shown by the case (in particular) of Wilsons & Clyde Coal Company Limited v. English (1938 Appeal Cases, page 37). He relies on Biddle v. Hart (1907 1 King's Bench, page 649) and on a dictum of Lord Justice Denning in Christmas v. General Cleaning Contractors Limited (1952 1 All England. Reports, page 39), as showing that the employer's duty of care as to the safety of the place of work extends even to premises over which he has no control; and he argues that the decisions in Taylor v. Sims & Sims (1942 2 All England Reports, page 373) and Cilia v. H.M. James & Sena (1954 1 Weekly Law Reports, page 721) are wrong in so far as a contrary view was taken. On the basis that the responsibility for providing a safe place of work remains on the master even though ha has no control of the premises, Mr. Waller contends that at the least a preliminary inspection to ascertain the dangers is available to the master and that in this case the Defendants were negligent in not so inspecting and in not providing a safe place of work for the Plaintiff.

Further, in respect of premises out of the master's control Mr. Waller argues that the duty of providing safe premises if it were, delegated by the master to the occupier. The master is thus vicariously liable for the occupier's failure to provide safe premises. It is true that, if one can import such a notional delegation, that further argument would stand. But such a delegation necessitates a fiction which seems to me to have no justification in fact. The tradesman comes to the premises to do something to them. He does not thereby delegate to the owner something which he himself has no right to do and with which he has never been concerned.

Mr. Waller's second point, as additional or alternative, is that the Defendants failed in their duty to take steps to provide a system which would protect the Plaintiff from the danger which caused his accident. A proper system (in his contention) would necessitate first an instruction to the Plaintiff that a window with only one handle must be opened from inside: secondly, a regular inspection by an overseer to see how the work was going and to emphasise the necessity for safety precautions: thirdly, a specific warning of the danger of trusting to handles on windows, a warning which should be repeated say twice a year, even though the danger was known to the Plaintiff — Mr. Waller instanced certain railway regulations that, though known to the men, have to be read to them twice a year as a reminder of things which, though well-known, are apt to escape their attention or to be treated lightly — and fourthly, that the master should have told the occupier to put the premises in order.

The learned Judge dealt with the first contention (as to the duty to provide a safe place of work) as follows. First he reminded himself of the well-known dictum of Lord Herschell in Smith v. Baker -- that the duty of the employer is to take reasonable care to provide proper appliances and to maintain them in proper condition and so to carry out his operations as not to subject those employed by him to unnecessary risk. He dealt with the passage in the Judgment of Lord Justice Denning in the window-cleaning case of Christmas v. General Cleaning Contractors Limited, to which I have referred. That passage reads as follows: "The next question is whether the contractors are liable to their workman, the plaintiff. Counsel for the contractors argued that employers who send their men out to work on the premises of other people have no responsibility for the safety of those premises. Be cited Taylor v. Sims & Sims in support of that proposition. He said that it was for the occupier to see that the premises were safe for the workman and not for the employer to do so. I cannot agree with that proposition. Until recently many people thought that an occupier was bound to use reasonable care to see that his premises were safe for workmen he invited on them, but that is no longer true. The decision of the House of Lords in London Graving Dock Company Limited v. Horton shows that an occupier can allow his premises to remain defective and dangerous with impunity so long as he gives the men warning that the risk or the danger is so obvious that they must be aware of it. If this is so, I think it must follow that it is for the employer, who sends his men to the premises, to take reasonable care to see that the premises are safe for the men, or else take proper steps to protect the men from the dangers to which he sends them.

The learned Lord Justice was in effect saying that Horton's case had left a gap which must be filled by imposing on the employer a liability for dangers for which the invitor might no longer be liable. The learned Judge observed that the other members of the Court of Appeal had based their Judgments on somewhat different grounds and that in the House of Lords the decision in the Plaintiff's favour was based on a shortcoming in the system employed to clean the windows rather than a failure to inspect the windows before each periodical cleaning. He then referred to Cilia v. James & Sons and. Taylor v. Sims & Sims, in each of which cases the learned Judges held that where an employer sent out his men to work on the premises of others there was no duty of care on him in respect of those premises and that, if there were, the duty had, on the particular facts of each case, been discharged. He also referred to Hodgson v. British Arc Welding Company Limited (1946 King's Bench, page 302), in which Mr. Justice Hilbery dealt with a similar point in a somewhat different and, as it seems to me, a preferable way. The implications of his Judgment are' not that the employers had no duty at all in respect of things over which they had no control but that the discharge of that duty was of a wholly different kind from that where the master was in control.

The learned Judge then continued as follows:

"There is no evidence before me of any practice of window cleaning employers to inspect premises in detail before each periodical cleaning of the windows. Nor would Mr. Davis — a surveyor called for the Plaintiff — go further than to say that employers should go around while the work was on 'to keep an eye on the men and see how the job was shaping'. I think it would be placing too heavy a burden upon employers to say that they must inspect in detail all the premises where their men clean windows every time the men do so and before they do so. Some premises contain so many windows that before the last window was inspected some new defect might have developed in the first; for example, a broken sash-cord, and the work of inspection might be endless. And without in any way minimising the risks of the job, I think they can be met in other ways. If men are properly taught their job; are provided with proper equipment; are adequately warned of the dangers, and are instructed that they should not clean any windows which appear to them to be too dangerous to clean, but should report the matter back to the employer, then it seems to me to be unnecessary to lay down that the employer must in addition inspect every window beforehand".

The learned Judge then went on to deal with the case of Thomson v. Cremin (1953 2 All England Reports, page 1185) on which the Plaintiff relied before him and relies before us. In that case a stevedore succeeded against a shipowner, as invitor, in respect of a faulty shoring that injured the Plaintiff. The shoring had been installed by competent shipwrights in Australia who were independent contractors, and a Government certificate, had been issued to the effect that the regulations had been duly complied with. The shipowner, on the same reasoning as that in Wilsons & Clyde Coal Company v. English, was held vicariously liable to an invitee for the default of the independent contractors. The Plaintiff in this ease sought to say that since a master owes an even higher duty to a servant than an invitor to an invitee, then a master must a fortiori owe a duty to a servant to see that the premises are safe before sending his workman to work on someone else's premises. But, as the learned Judge pointed out, this vary argument had failed in that case, since the plaintiff had sued his master as wall as the shipowner but had failed against his master,. The learned Judge referred to the words of Lord Simon and Lord Wright in that case. Lord Simon said:

"Rare, again, I agree with the view of the Scottish courts that it was not proved to be part of the regular practice or course of duty of stevedoring firms to make such inspection".

The learned Judge then dealt with the duty to make this particular handle safe, and concluded that since it was not within the power of the Defendants to do so and they had net the necessary control over the premises it could hardly be unreasonable not to do so. He concluded, on this point,

"The Defendants in fact met the situation in this case by telling the Plaintiff, a very experienced man, that he need clean no window which he considered unsafe. I hold that there was no obligation upon the Defendants to go further and make good the defective handle. The duty of an employer to take reasonable care to provide a safe place of work relates, in my view, only to that place of work which is in the employer's occupation or over which he is shown to have the necessary degree of control. This is not true of the premises in the present case".

The learned Judge then dealt with the Defendants' alleged failure to warn the Plaintiff of that which he already knew, namely, the danger of pulling on handles, and with the failure to give periodically repeated warnings in order to keep his caution vigilant, and decided that there was no negligent failure in that respect. He commented on the fact that there was no evidence of any practice in the trade with regard to repeated warnings. He differentiated between this case and cases where risks are "insidious and unseen", such as dermatitis eases, where, for instance, it might be that reminders as to the use of barrier cream and such like precautions were necessary; and he pointed out that in any event it was pure guesswork as to whether, if there had been periodic warnings, this accident would have been avoided. He found, therefore, that the Defendants had not been negligent.

Now it is true that in Wilsons & Clyde Coal Company v. English, Lord Wright divided up the duty of a master into three main headings, for convenience of definition or argument; but all three are ultimately only manifestations of the same duty of the master to take reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk. Whether the servant is working on the premises of the master or those of a stranger, that duty is still, as it seems to me, the same; but as a matter of common sense its performance and discharge will probably be vastly different in the two cases. The master's own premises are under his control: if they are dangerously in need of repair he can and must rectify the fault at once if he is to escape the censure of negligence. But if a master sends his plumber to mend a leak in a, respectable private house, no one could hold him negligent for not visiting the house himself to see if the carpet in the hall creates a trap. Between those extremes are countless possible examples in which the Court may have to decide the question of fact: Did the master take reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk? Precautions dictated by reasonable care when the servant works on the master's premises may be wholly prevented or greatly circumscribed by the fact that the place of work is under the control of a stranger. Additional safeguards intended to reinforce the man's own knowledge and skill in surmounting difficulties or dangers may be reasonable in the former case but impracticable and unreasonable in the latter, So viewed, the question whether the master was in control of the premises ceases to be a matter of technicality and becomes merely one of the ingredients, albeit a very important one, in a consideration of the question of fact whether, in all the circumstances, the master took reasonable steps.

That, as it seems to me, is the reasoning of this Court in Biddle v. Hart (1907 1 King's Bench, page 649). In that case a stevedore's workman, whilst engaged in unloading a ship, was injured owing to a defect in the tackle, and he was suing his master. The learned Judge withdrew the case from the jury, on the ground that the stevedore was not responsible for a defect in the ship's tackle because the tackle did not belong to him. Lord Scroll said:

"In my opinion, if the employer uses plant which is net his own for the purpose of doing something which he has engaged to do, it cannot possibly be said that he has no duty whatever in relation to that plant. Otherwise he would be able to take anything that came from anybody and to use anything in the work he was engaged upon without making any inquiry at all, and then say, in the event of an injury arising from a defect in the plant, that he had nothing to do with it, and so escape liability. That, to my mind, is unreasonable, and is not consistent with the second section. What I take to be the meaning of that is that if the employer uses plant which does not belong to him, he may have a duty in regard to the persons employed to take reasonable care to see that it is proper for the purpose for which it is need. It may be that in a case of this character, although he had that duty, yet, if he had dealt with these shipowners before and had never had any cause for complaint, the jury might think that he had reasonably discharged that duty. On the other hand, when you have evidence that the plant was old and had been in use for a long time, the jury might say they ware not satisfied that reasonable care had been taken to see that it was in a proper condition. Once establish the duty the question la, What would the jury consider a discharge of that duty?".

As Lord Justice Parker pointed out in Davie v. New Merton Board Mills (1958 1 All England Reports, page 67), that reasoning seems inconsistent with the two decisions to which I have referred which say that there is no duty of care in respect of premises over which the master has no control, but it is consistent with the alternative ratio in each ease that the duty had been discharged. It is consistent, I think, with the implications of the Judgment of Mr. Justice Hilbery in Hodgson v. British Arc Welding Company Limited. But applying that reasoning to this case, I think that the Plaintiff has not shown that the Defendants failed to take reasonable steps for the safety of the Plaintiff.

The learned Judge's reasoning seems to me to be sound. It was a question of fact whether the Defendants were negligent; and I see no ground for differing from the conclusions of fact which the learned Judge reached.

I would dismiss the appeal.

LORD JUSTICE PARKER: I agree.

I have no doubt that this appeal fails. It is only out of respect for Mr. Waller's persuasive argument that I add anything. The first way in which he puts his case is this. It is, he says, the master's duty to provide a place of employment as safe as the exercise of reasonable skill and cars will permit. Quite clearly, the premises in this case where the Plaintiff was to work were not as safe as the exercise of reasonable skill and care would permit: therefore as the duty is personal the Defendants are liable; and that is so whether the premises are in the occupation of the Defendants or (as here) of people who are neither servants nor agents, nor independent contractors employed by the Defendants.

I think that this ease is a very good example of the difficulties that one gets into in treating the duty owed at Common Law by a master to his servant as a number of separate duties. Thus, it is often said (as it is said in this case) that the master owes a duty to make the place of employment as safe as reasonable skill and care will permit. Again, it is said that it is the master's duty to make the plant and tools as safe as reasonable skill and care will permit; and again it is said that it is the master's duty to devise and lay down a safe system of working.

Approached in that way, questions at once arise as to whether, and if so to what extent, any of those duties extend (in the case of premises) to premises not occupied or controlled by the master, or (in the case of plant and tools) to plant and tools bought from responsible and reputable suppliers or manufacturers - bearing in mind, as has been laid down so often, that in each case the duty is a duty personal to the employer, in the sense used in Wilsons' case. It is no doubt convenient, when one is dealing with any particular case, to divide that duty into a number of categories; but for myself I prefer to consider the master's duty as one applicable in all circumstances, namely, to take reasonable care for the safety of his men, or, as Lord Herschell said in the well-known passage in Smith v. Baker, to take reasonable care so to carry out his operations as not to subject those employed by him to unnecessary risk.

That general duty applies in the circumstances of every case; but the governing words "reasonable care" limit the extent of the duty in the circumstances of each case. Accordingly the duty is there, whether the premises on which the workman is employed are in the occupation of the master or of a third party, or whether the tool has been made to the order of the master or his manager, servant or agent, or is a standard tool supplied and manufactured by reputable third parties; but what reasonable care demands in each case will no doubt vary.

That, as it seems to me, is the true principle, and is consistent with the decision of this Court in Biddle v. Hart (1907 1 King's Bench, page 649). As I said in Davie v. New Merton Board Mills, I very much doubt whether the decisions in Taylor v. Sims & Sims and Cilia v. James & Sons are correct decisions in so far as they said that in circumstances such as these there is no duty in respect of the safety of the promises. It seems to me also that those statements are inconsistent with a passage in the Speech of Lord Wright in Thomson v. Cremin (1953 2 All England Reports, page 1185), the passage being at page 1192).

Mr. Waller relied strongly on the dicta of Lord Justice Denning in the case of Christmas v. General Cleaning Contractors Limited (1952 1 King's Bench at Page 148); but in my judgment those were dicta, and in so far as Mr. Waller said that those remarks implied that there was a duty to make promises in the occupation of a third party safe I do not think that they can stand with the decisions to which I have referred* Bearing that in mind, it seems to me that there is nothing in this case on which one can say that the general duty, so far as it relates to premises, has been broken.

One can conceive cases of a very old, dilapidated building, or a building which is known to have suffered war damage or is dilapidated in some other respect, where one could say that it was the duty of an employer to see that it was made safe or, if it could not be made safe, if necessary to forbid his workmen to go there and work. But there is no suggestion of that in the present case.

So much for Mr. Waller's first contention. His second contention is based on an allegation that in various respects there has been a breach of the sub-division of the duty which relates to an unsafe system of working. I think this must be right: that in so far as what one may call the first division, the making the premises sage, cannot be fully performed — as when they are in the possession of a third party, it behoves the master to exercise all the more care in regard to his system of working.

In regard to the system of working, various points are taken. It is said firstly that it was the duty of the master, albeit that he could not make the premises safe, to inspect them either each time the workmen went on the job or at any rate twice a year in the course of a contract such as this. That, of course, overlaps to some extent what I have already said in regard to the first contention; but in so far as it is based on an unsafe system of working it seems to me that the answer here is that there is no suggestion that there is any practice in the trade in that regard. No doubt a master will inspect the premises generally with a view to estimating for the job in the first instance; but there is no practice in the trade whereby he must make a periodic inspection.

Secondly, it is said that reasonable care demanded in this case that there should be repeated warnings given to the Plaintiff of the danger of windows sticking and of handles coming off. In fact in the present case there not only has been no repeated warning, but no initial warning. But the circumstances here are these: this is a man who was 56 years of age, I think, at the time, and who has been all his life a window cleaner: he is a very experienced man, usually acting as a charge-hand, and he knew — and he frankly said that he knew — of the dangers involved, of handles coming off. It is said that he should have been told - one witness suggested that it should be impressed upon him twice a year — again and again. For my part, I would like to adopt entirely what Mr. Justice Donovan said on that point. It seems to me that the disadvantages of doing that in the case of skilled men of this sort may well outweigh the advantages; and for my part I cannot think that "reasonable care" demands a repeated warning to skilled man in a case at any rate such as this, where the dangers involved are patent. It is not a case that one sometimes comes across of the danger of silicosis from particles of dust which are quite invisible and cannot be seen. I do not know, but it may well be that in such cases "reasonable care" would demand that the employer should warn and exhort the men constantly to wear masks. But there, as I have said, the danger is not patent.

Lastly, it is said (and for my part I think that this is the strongest way that Mr. Waller can put his case) that there ought to have been general instructions that in the case of all sash windows men should clean them from the inside first and, while inside, should see that the top sash will come down - in other words, that it is not stuck; and that in the case of a window the handles of which are suspect it is actually opened while the men are inside. That, however, was a suggestion made by only one witness, who I do not think had any experience of window cleaning whatsoever. There is no suggestion that there is any settled practice in the trade for the giving of such instructions. Accordingly, one would have to say (adopting the words so often used) that it would have bean folly on the part of a prudent employer not to give such instructions. For my part, I am quite unable to say that in that regard the Plaintiff has made out his case.

For these reasons, as well as the reasons given by my Lord, I would dismiss this appeal.

LORD JUSTICE JENKINS: I entirely agree, and find nothing I can usefully add.

(Appeal dismissed: no Order as to costs save that Appellant's costs be taxed under Legal Aid and Advice Act).