Alfred Earl Hodgson v British Arc Welding Co Ltd and B & N Green & Silley Weir Ltd

 

Alfred Earl Hodgson v British Arc Welding Co Ltd and B & N Green & Silley Weir Ltd

INDUSTRY: TORTS; Statutory Duty: EMPLOYMENT; Other Employment

KING’S BENCH DIVISION

HILBERY J

13 NOVEMBER 1945

Factories and Workshops – Dock – Ship under repair – Defective staging – Accident to workman employed by sub-contractors engaged for the electric arc

welding – Contractors in occupation of ship – Staging provided by contractors – Sub-contractors not liable – Breach of statutory duty by contractors –

Shipbuilding Regulations, 1931 (SR & O, 1931, No 133), reg 11 (b).

Master and Servant – Liability of master at common law – Ship under repair – Defective staging – Accident to workman employed by sub-contractors engaged

for the electric arc welding – Staging provided by contractors – Sub-contractors for specialised work not responsible for staging erected by contractors.

A workman was employed as an electric arc welder by BAW Co which had sub-contracted for the electric arc welding of a ship under repair. The shipwrights,

who were the contractors for the repairs, were in occupation of the dock and the ship and they provided the scaffoldings and stagings necessary for the repairs.

While working in the hold of the ship the workman found that he had to stand on a plank which could not be securely fixed owing to its being warped. Owing

to the defective plank, the workman met with an accident and sustained personal injuries. He brought an action for damages against his employers, BAW Co

for breach of the common law duty owed by a master to his servant and against the shipwrights, as occupiers of the ship in which he was working, for breach

of the statutory duty imposed on them by the Shipbuilding Regulations, 1931, reg 11(b), or, alternatively, for breach of their common law duty to him:—

Held – (i) In the circumstances of the case, there was no breach of common law duty by the employers; since they were merely sub-contractors, engaged to do

specialised work, they were not responsible for the scaffolding which was provided by the shipwrights.

(ii) by providing a plank which was warped and which could not be “maintained in such condition as to ensure the safety of all persons employed,” the

shipwrights were liable to the workman for breach of the statutory duty imposed on them by the Shipbuilding Regulations, 1931, reg 11(b).

(iii) in the circumstances, it was not necessary to determine whether the shipwrights had committed a breach of their common law duty to the workman;

because, as the danger was apparent to him before he used the plank, the shipwrights could not be liable at common law.

Notes

The main point of interest in this case is the decision that the common law duty owed by a master to insure the safety of his servant does not apply in the case

of a sub-contractor, where the defective scaffolding is provided and erected by the contractor. The sub-contractor in such circumstances relies upon the expert

knowledge of the contractor, and he is not liable to his servant for injury resulting from the negligence of the contractor.

As to Liability of Occupier of Docks, see Halsbury, Hailsham Edn, Vol 14, pp 619–621, para 1174, and Supplement; and for Cases, see Digest, Vol 24,

pp 915–919, Nos 104–138, and Supplement.

Case referred to in judgment

Smith v Cammell Laird & Co Ltd [1939] 4 All ER 381, [1940] AC 242 Digest Supp, 109 LJKB 134, 163 LT 9.

Action

Action for damages for negligence. The action was brought by a workman against his employers, sub-contractors for repairs to a ship, for breach of the

common law duty owed by a master to his servant, and against the contractors who were in occupation of the ship for breach of the statutory duty imposed on

them by the Shipbuilding Regulations, 1931, reg 11(b), or, alternatively, for breach of their common law duty to him. The facts are fully set out in the

judgment.

S R Edgedale for the plaintiff.

R Marven Everett for the first defendants, the sub-contractors.

E Ryder Richardson for the second defendants, the contractors.

􀂭 95􀀉

13 November 1945. The following judgment was delivered.

HILBERY J. In this case the plaintiff, who is an electric arc welder employed by the first defendants, went on 14 April at 2 pm to work for his employers in

the hold of S S Sampep, then lying in a dock which was in the occupation of the second defendants. The second defendants were in occupation both of the

dock and of the ship. They were the contractors for repairs to the ship, the first defendants sub-contracting for the electric arc welding. The second defendants

were shipwrights and as shipwrights, in the ordinary course of the doing of such work, were the people to provide, and they did provide, the scaffoldings and

stagings in the ship necessary for the doing of all the repairs for which they were contracting or sub-contracting.

The plaintiff went to No 5 hold to do the work which he was directed to do, and he found there a staging which had been erected by the second

defendants. The staging was formed by resting a plank, on which the plaintiff was to stand and work, on a cargo batten in the side of the ship, the other end of

the plank resting on a trestle. The plaintiff says he noticed that the particular plank on which he was to work was a warped plank with a twist in it, and the end

which should have rested on the horizontal member of the trestle had been wedged to prevent it from tipping up and down. In his view it was not a safe plank.

In the course of working at the other end of the plank from that where it rested on the trestle, he had occasion to require a little extra length of flex. He was

working with an electric arc welder with a very long trailer flex. Wanting some slack, he found that the flex had got caught round the end of the plank which

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was at the trestle end. He did what seems to have been a perfectly sensible thing to do: he walked down to the end of the plank and freed it. It is said that that

was an unwise, and even a negligent, thing to do, inasmuch as the plaintiff knew that the plank was wedged, and that he ought to have got off the plank,

walked along and then got back, as it was only 2ft 6ins from the deck. I cannot see anything negligent or unwise in the plaintiff doing what he did do. I think

it was a normal thing for a man to do—to walk along the plank, release the flex, and then walk back along the plank. I do not think that any ordinary or

reasonable workman would have thought of getting down off the plank and taking some extra precaution because the plank was wedged. Although the plank

was wedged, the plaintiff did not, at that stage, apprehend that the wedge was coming adrift and that the plank was going to tilt. As he went back, the plank

did tilt. He lost his balance and fell off the plank, hitting his back rather a severe blow. It would appear that he must have hit it in the region of the pelvis. He

continued to work that afternoon, but the next day, when he went to work, he felt that he could not go on because of the pain. He knocked off his work and

went down to the Tilbury Hospital. The doctor there advised him to see his own doctor or to attend his own local hospital, as the Tilbury Hospital was then an

emergency hospital.

He acted as he was advised and went into his local hospital where he received infra-red ray treatment for seven or eight weeks. He went back to his work

on about 20 June 1944. He went back to the same sort of work, welding, but he did not have to do any climbing or pulling cable about. He did that work for

some time and it is clear that, from then until April 1945, he was earning substantially the same wage that he earned before. Thereafter, he began to feel

worse; he says that he now gets pain in the back after doing only a certain amount of work. That is the case upon which the plaintiff asks for damages.

The action now comes to trial against both these defendants. As regards the first defendants, the plaintiff alleges that they are in breach of a common law

duty owed by a master to his servant. As against the second defendants, he alleges that this accident was due to a breach of the Shipbuilding Regulations,

1931, imposed upon the second defendants as the occupiers of the dock and the ship where he was at work when the accident happened, the Regulations being

one of the sets of regulations made relating to dangerous trades. Alternatively, as against the second defendants, he says that they were guilty of a breach of

their common law duty to him, ie, of the duty owed by occupiers of premises to those going upon the premises on a matter of business common to the person

going upon the premises and the occupiers.

On the evidence, I cannot find that any case is made out against the first defendants, the plaintiff’s employers. The work in question was to be done

􀂭 96􀀉 by his employers in premises over which they had no control whatsoever. They were not occupiers of the premises; they were only a firm of

contractors employed to do certain work in a ship which was then in the hands of the shipwrights for repairs, and they contracted to do that work for the

shipwrights. The evidence is that, in those circumstances, the shipwrights provide the scaffoldings and stagings in the ship required for the work which has to

be done in the way of repairs. They are skilled persons in the erection of such things. It is a sensible system, because scaffoldings and stagings inside a ship

are not like straightforward scaffoldings on a building; there are all sorts of peculiarities of ship construction to deal with. In accordance with the usual

custom, the first defendants’ workmen, including the plaintiff, found a stage and scaffolding provided by the second defendants, and there was no reason to

suppose that it would not be a reasonably safe scaffolding.

I think it is putting the duty of an employer in those circumstances too high to say that an electric arc welding firm, or any other sub-contractor doing a

specialised type of work, is under a duty separately to inspect every piece of scaffolding in order to see that what the shipwright has done has been done with

proper care and skill. They are not competent, or qualified, to criticise what the shipwright does in the way of erecting a scaffolding. The shipwright is an

expert in the matter, whereas the sub-contractors probably know nothing about it. It would be ridiculous to say that the employer in those circumstances was

responsible to his workmen, because he (the employer) who knows nothing about the erection of scaffoldings, and how to make them reasonably safe, did not

inspect with the eye of ignorance the work which was being done with the eye of knowledge and skill. I do not think that there was any breach of duty by the

first defendants which led to this accident—ie, breach of any duty owed in law. They were not the occupiers of this ship and dock, or of the ship, or the dock.

They did not owe the duty which the ordinary occupier of premises owes to somebody coming upon the premises on a matter of business common to that

person and to the occupier. They were not under the statutory obligations and regulations, because they were not the occupiers. As far as they are concerned,

there must be judgment for them.

So far as the second defendants are concerned, it seems plain on the evidence before me that this plank was not a suitable or safe plank to provide in a

scaffolding or staging which was constructed as that one was. A twisted and warped plank might be the only safe plank to fit into a particular opening which

was so shaped that it would not take a plank which was true, but would take one which was warped; but that was not this case. This warped and twisted plank

was being laid on what was apparently a straight-edge and, since, in those circumstances, it could tip, someone put a wedge underneath it to prevent it tipping.

But I have not heard that the wedge, or the plank, was secured in any way, nor that any step was taken to prevent that wedge from coming out; and the wedge

did come out. I am satisfied that the real explanation of the matter is that this work was being done at a time when timber in this country was very difficult to

obtain, and, owing to the urgency with which work had to be done in ships, a chance was taken which would not be taken in ordinary circumstances. A piece

of bad dangerous planking was used, which, in the ordinary course, would not have been used. The result was that the plaintiff fell.

The question then arises whether there was a breach of the duty owed in law by the second defendants to the plaintiff at common law or a breach of the

statutory regulations, or both. As I read the Shipbuilding Regulations, 1931, reg 11(b), I think there was a breach of the statutory regulations which, as was

pointed out in Smith v Cammell Laird & Co, imposed an absolute obligation. That there was a breach of the statutory duty is, I think, clear. The Shipbuilding

Regulations, 1931, reg 11(b) provides:

‘All staging shall (i) be securely constructed of sound and substantial material and shall be maintained in such condition as to ensure the safety of all

persons employed.’

As I have said, this plank was twisted, warped and unsafe, and it was not, and it could not be, maintained in such a condition as to ensure the safety of all

persons employed. In my view, the plaintiff succeeds against the second defendants for breach of the statutory duty.

I need not, therefore, decide whether the plaintiff has also established a claim based upon the common law duty. I very much doubt whether he has,

because 􀂭 97􀀉 this danger from which he suffered was apparent to him before he went upon the plank or used it; so it was not a danger of which the occupier

knew, or ought to have known, but of which the visitor did not know, though exercising reasonable care for his own safety. The plaintiff did know of it; he

recognised the danger; and, in those circumstances, I do not think that he could succeed on the claim of common law duty, but he does succeed on the breach

of the statutory duty. I think the plaintiff has established the right to damages to the extent of £235. There must be judgment for the plaintiff against the

second defendants for £235, and judgment for the first defendant against the plaintiff.

Judgment for the plaintiff against the second defendants for £235 with costs. Judgment for the first defendants, the taxed costs of the first defendants to be

paid direct by the second defendants.

Solicitors: Shaen, Roscoe & Co (for the plaintiff); Barlow, Lyde & Gilbert (for the first defendants); Hewitt, Woollacott & Chown (for the second defendants).

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

R Boswell Esq Barrister.

[1946] 1 All ER 98