England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM MANCHESTER COUNTY COURT
(His Honour Judge Armitage)

		The Royal Courts of Justice The Strand London Thursday 27 June 2002

Thursday 27 June 2002

1. LORD JUSTICE PILL: This is an appeal against a judgment of His Honour Judge Armitage QC given at the Manchester Crown Court on 31 January 2002. The judge dismissed a claim for damages for personal injuries brought by Mr David Paul Eden ("the appellant") against West & Co ("the respondents"), who are estate managers of the properties in the estate of W G West, deceased. The estate consists of 200 or so houses, many of which, including the one relevant to this claim, were built in the 1950s.
2. The appellant is a self-employed and experienced joiner. He suffered his injury when employed by the respondents as an independent contractor to replace windows at one of the estate houses, No 63 Broadway, Stockport. It was the first of the houses on which he had worked as a part of this contract. He was accustomed to replacing windows on houses.
3. The appellant's evidence in chief was given by way of written statement. He was not cross-examined. In relation to the accident which happened on 12 January 1998 he stated:

"As I removed each of the sides of the window frame the top of the frame collapsed upon me. The frame came crashing down on me as well as several bricks from above the window. There appeared to be no lintel to hold the bricks in place.

The bricks landed all over my upper-body and I fell backwards off the ladder. I was approximately 12 ft above the ground."

4. It is common ground that it was dangerous for the appellant to do what he did if there was no lintel supporting the bricks above the window. There was no lintel in this house.
5. The case started on the wrong foot, in that it was pleaded on behalf of the appellant (not by Mr Maitland Jones, who appears today) that the appellant was employed by the respondents, which he was not. It was pleaded by the respondents (not by Mr Atherton, who appears for them today) that he was employed by his father's firm, which he was not. There is no evidence to suggest that in the period before the accident the appellant had had any employment contract with his father or his father's firm, which also did work for the respondents and had done work on this estate. The misconceptions were removed before the trial commenced.
6. The question arose as to whether the appellant should have been warned of the absence of a lintel. The claimant's unchallenged evidence was:

"Before the job I was not made aware that there was not a lintel in place. If I had been then [I] could have acted accordingly and ensured that I was not in a position to be injured when replacing the window frame."

7. In a supplementary statement the appellant stated:

"I was engaged directly by the Defendant to replace the windows at 63 the Broadway. It can be seen from the invoices raised prior to the accident that I frequently was engaged by the Defendants directly to work for them. However at no time prior to the accident was I aware that houses on the estate they administer were constructed without lintels above the windows. Had I known this I would never have attempted to remove the window frame without first ensuring that the wall above was adequately supported, as the risk of a collapse is very high."

8. From the witness statement of Mr Raymond Shone, the respondents' Operation Manager, it is clear that he was aware that some of the houses on the estate had no lintel supporting the brickwork above the windows.
9. The claim is based on the Occupiers Liability Act 1957. An occupier owes a common duty of care to all his visitors. Section 2(2) provides:

"The common duty of care is a duty to take such care as in all of circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."

10. Section 2(3) provides, as far as is material:

"(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so."

11. In defending the claim, the respondents alleged that they employed someone whose calling and job it was to do work such as this. They were entitled to rely on him to adopt a safe system of work. He should have checked to see whether a lintel was present. Their duty as occupiers did not require them to tell the appellant of the absence of lintels on some of the properties.
12. The judge accepted that submission. He stated at paragraph 16:

"It seems to me on that basis, taking a fair view of Raymond Shone's evidence, that the defendants through him were in this situation: that there was amongst their managers an awareness that some of their properties at any rate did not have lintels above first floor windows but they were also aware that the contractors they used were perfectly capable of making an assessment for themselves. The difficulty about this is that if one takes that evidence in conjunction with the evidence that merely inspecting the windows from outside without removing any plaster or any other impediment to a view of whether there is a lintel or not, it is not possible for a contractor to know for certain whether there is a lintel or not. It is clear that Mr Shone believed, on the basis of his experience, that a competent contractor could deal with the possibility that there was no lintel. This is, as it seems to me, the essential point."

13. I interpose a reference to the judge's use of the word "could". It is not doubted that the appellant could have dealt with the situation if he had known that no lintel was present. The issue was whether he knew or ought to have known of the possibility of the absence of a lintel.
14. At Paragraph 18 the judge said:

"It seems to me that the claimant should have approached the job cautiously. As I have already indicated, he accepts that had he approached it in that way he could have dealt with the problem. His father plainly had dealt with the problem even though he had no warning of it. Any contractor in order to carry out this work would have to expose the area immediately above the window frame in order to determine whether there was a lintel or not, otherwise it was inevitable that he was working in an unknown set of circumstances. Even with the knowledge that they had, the defendants could not assure him one way or the other whether there was a lintel and therefore the contractor had to find out. He could not safely assume the presence of a lintel."

15. For the appellant, Mr Maitland Jones submits that there was no evidence to support the proposition that the appellant "could not safely assume the presence of a lintel". That assertion of the judge, it is submitted, was unsupported by evidence and had not been put to the appellant when he gave his evidence. The only evidence, submits Mr Maitland Jones, apart from that of the appellant, was that of Mr Morton, the respondent's estate manager. He accepted, in relation to these properties, that there was no way of telling by simply looking at the property (in other words, the brickwork on the outside and the plasterwork on the inside) whether there was a lintel or not. Mr Morton, however, made clear that he was giving evidence as a layman with respect to building matters. Moreover, that evidence does not address the question whether a competent joiner should be aware of the possibility that no lintel was present.
16. For the respondent, Mr Atherton submits that the judge was entitled to draw the inference he did. Other contractors, the claimant's father's firm, had worked on the premises and had safely removed windows from buildings which had no lintels without damage or injury having arisen. Mr Atherton has to accept -- and I would take judicial notice of the fact -- that lintels above windows are an extremely common feature of 20th-century houses. The appellant did not know that a lintel was absent from this house. There is no evidence that the possibility of the houses not having lintels should have been known to a competent self-employed joiner. Nor was it suggested to the appellant that he ought to have been aware of that possibility.
17. Cases are, of course, decided on the evidence called. Judicial notice may be taken of obvious hazards, for example, that glass may break on impact. That principle does not, in my judgment, extend to an inference being drawn that a competent joiner should be aware of the possibility that in a mid-20th-century house there was no lintel supporting the bricks above window frames. Nor can the inference that the appellant ought to have known properly be inferred from the fact that other contractors had worked on similar buildings without an injury in fact having occurred. Before it could be inferred that the appellant should have had the necessary awareness, the point should have at least been put to him.
18. The respondents were aware that houses on the estate were without lintels. In the circumstances, they should have warned the appellant of this and their failure to do so was a breach of duty. On that ground I would allow this appeal.
19. I see no merit in the allegation of contributory negligence. The only allegation is that the appellant was aware of the nature of the window's construction, and that allegation has failed. There was no evidence to support it.
20. There is also an appeal against the learned judge's assessment of damages on the question of loss of earnings. The judge acceded to an invitation, made on behalf of the unsuccessful claimant, to make such an assessment and in relation to loss of earnings Mr Maitland Jones appeals against the figures he reached. There was an agreed medical report. The appellant sustained injury to his thoraciolumbar spine. The injury involved fractures of the superior end plates of T12, L1 and L2, with a modest degree of anterior wedging of vertical bodies of L1 and L2. General damages for pain, suffering and loss of amenity were agreed in the sum of £10,000. The judge rejected other claims made, for example, for care during a period of disability (save as to £672), and there is no appeal against those findings.
21. As to loss of earnings, the medical findings were:

"... we would conclude on balance of probability that Mr Eden should have been capable of returning to full-time light work within approximately 6 months of the accident and that he should have been capable of resuming more active, physical work within approximately 12 months from the date of accident. Such work would include, for example, bench joinery work. However, we would accept that there may be some continuing restraints thereafter on his ability to carry out very strenuous or heavy physical work such as work involving a lot of repeated bending and heavy lifting. This may include some aspects of building site work."

22. The judge took what was, with respect, a most robust line on the question of loss of earnings. He was not prepared to find any loss. The judge stated, having referred to the paucity of the documentary evidence customary in a claim of this kind (paragraph 24):

"I remind myself, as I did at the end of the trial, that where the court is faced with flimsy evidence or difficult calculations, the court is not excused from making an assessment of damages but I have to say I take the view in this case that there is such a paucity of evidence that it is not realistic for me to make any findings of fact in relation to the claimant's past net income. It seems to me that he simply fails to provide any earning history at all, which is not to say that he did not have any. In the circumstances of this claim having been dismissed and any court which may have to consider this matter on appeal presumably having exactly the same evidence as I have, anything I say about an estimate of his past earnings and therefore any future loss will simply be wild, unhelpful speculation. The appellate court will be in as good a position to assess loss of earnings as I was."

23. In my judgment the judge was not entitled to be as robust as that in his approach. The appellant had given evidence that he had been working during the period before his accident. That evidence was not challenged. Indeed, the respondents accept that the appellant had been working for them for a time before the accident. Schedules were submitted on behalf of the claimant. One schedule showed that during the period between 19 September 1997 and 19 November 1997 -- that is, a period only shortly before the accident -- the sum of £3,405 was paid to the appellant by the respondents. They accept that invoices were submitted to them, and for that two-month period they paid that sum by way of labour charges: though whether it all went to the appellant himself or part to a colleague is not clear. Mr Maitland Jones realistically accepts that the evidence was not such that he could expect any award for loss of earnings beyond the 12-month period, and he accepts, in part at any rate, the strictures of the judge as to the inadequacy of the material provided by the appellant for the assessment of loss of earnings.
24. In my judgment, however, on the material before the court there must be some award by way of damages for loss of earnings having regard to the agreed medical evidence and to the evidence that, plainly, during the months before his accident the appellant was working. It is not suggested by the defendants that he would have done other than continue to work for them, including work on the estate in question. The schedule claims net loss of earnings for one year in the sum of £11,500.
25. In my judgment, this claim can only be approached on a global basis. I would award the sum of £5,000 for the period of six months during which the medical evidence shows that the appellant was unfit for work. I have regard to all the uncertainties which would arise thereafter. However, I would add to that sum, to cover the period of recuperation contemplated by the doctors in the second six months, the sum of £1,000. The result is that I would make a total award of £16,672: the agreed sum of £10,000 for pain, suffering and loss of amenity; £6,000 for loss of earnings during the period after the accident; and £672 awarded by the judge for the cost of care, which is not disputed.
26. To that extent, I would alter the approach of the judge and would make an award of that sum.
27. LORD JUSTICE POTTER: I agree. So far as liability is concerned, I do not consider that unless there is an admission, or expert evidence to that effect, the absence of a lintel in an ostensibly well-constructed mid-20th-century house should be regarded as a special risk ordinarily incidental to the task of a joiner asked to replace a timber window frame in that house: see section 2(3)(b) of the 1957 Act. On analysis of the evidence and the judge's findings, the case appears to me to have turned upon the judge's conclusion that it was, when no such admission had been made or evidence given.
28. On the evidence before the judge, it was the defendants and not the claimant who were nonetheless aware of the real risk that lintels might well be be absent above the window frames which the claimant had been asked to remove, and in my view he should have been warned to that effect.
29. I agree with the judgment of Lord Justice Pill, and for the reasons he has given I would also allow the appeal.
30. LORD JUSTICE JUDGE: I also agree. I have sympathy for the judge, who was provided with very little oral evidence to assist him, and he had to make do with the evidence that was presented to him. His main findings to support the conclusion that the case on liability must fail were that the defendants were contracting with the claimant as an outside specialist and that a competent contractor could be expected to deal with the possible absence of a lintel in this particular property.
31. Standing alone, those are points which carry some force. But no one suggested to the claimant that he ought to have anticipated the absence of a lintel, and there was no evidence called by either side to support the finding of the judge.
32. At the same time, in my judgment, the judge did not sufficiently face up to the further facts that the defendants undoubtedly knew that this house may have been one of the houses on the estate which lacked lintels; that the appellant did not know of this potential hazard; that there was nothing on site to alert him to the possibility of any such risk; and, finally, that the defendants failed to make him aware of it or to give him any warning to look out for the risk which they understood.
33. Given those facts, I agree with the reasons given by my Lords in their judgments for allowing this appeal.
ORDER: Appeal allowed in the sum of £16,672, with interest to be agreed, with costs here and below assessed by agreement at £16,000 including VAT. (Order not part of approved judgment)