Deyong v Shenburn

 

Deyong v Shenburn

EMPLOYMENT; Other Employment: TORTS; Negligence

COURT OF APPEAL

LORD GREENE MR, DU PARCQ AND TUCKER LJJ

14, 15, 16 JANUARY 1946

Master and Servant – Duty of master – Proper System of working – Failure to take reasonable care to prevent theft of servant’s property – Whether breach of

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Preamble

duty – Actor’s clothing stolen from dressing room.

Negligence – Theatrical producer – Failure to take reasonable care to prevent theft – Actor’s clothing stolen from dressing room – Liability of producer.

Theatres – Failure of producer to take reasonable care to prevent theft – Actor’s clothing stolen from dressing room – Liability of producer.

By an agreement in writing the respondent, a theatrical producer, agreed to engage the appellant in a pantomime, and the appellant undertook, free of salary, to

rehearse at any place decided upon by the management, for one week before production. During a rehearsal the appellant’s overcoat, together with some

articles he was to wear in the pantomime, were stolen from his dressing room. In dismissing an action by the appellant for damages for loss of his property,

the county court judge found, as a fact, that the respondent had not taken reasonable care for the safety of the property of the appellant, but held that the

respondent was under no duty 􀂭 226􀀉 to exercise such care. It was contended on behalf of the appellant (i) that it was an implied term of the agreement that

the respondent should use all reasonable care in the safeguarding of the appellant’s property and (ii) in the alternative, that there was an obligation at common

law on the respondent, as employer, to take reasonable care to provide a proper system of working which, it was contended, applied not only to the physical

safety of the appellant but also to the safeguarding of his property:—

Held – (i) No implied term could be imported into the agreement which imposed on the respondent a duty to exercise reasonable care in the safeguarding of

the appellant’s property.

(ii) the respondent was under no duty to the appellant, at common law, by reason of the relationship of master and servant, to take reasonable steps to

protect his property from theft.

Notes

The main point decided in this case is that the common law duty of an employer to provide a safe system of working does not extend to liability for loss of or

damage to goods of the workman caused by third parties. The implications of “safe system of working” were fully analysed by the Court of Appeal in Speed v

Thomas Swift & Co ([1943] 1 All ER 539), and, as Viscount Simon LC, observed in Colfar v Coggins & Griffith (Liverpool) Ltd, the employer’s liability at

common law cannot be further extended.

The case is of considerable interest to members of the theatrical profession. Du Parq LJ, holds that, in a contract to perform, a dressing room must be

provided, reasonably suitable for the purpose, but that this liability does not extend to taking steps to prevent theft. Tucker LJ, points out that in the case under

consideration the performer was under no obligation to bring the goods stolen into the theatre on the day in question, and he suggests that the position might be

different in regard to tools of the trade. This question might well arise for decision where goods stolen from a dressing room consist of properties which the

performer is under an obligation to use, eg, a conjurer’s equipment or a performing animal.

As to Proper System of Working, see Halsbury, Hailsham Edn, Vol 22, p 188, para 314(3); and for Cases, see Digest, Vol 34, p 199, Nos 1624–1626.

Cases referred to in judgments

Cole v De Trafford (No 2) [1918] 2 KB 523, 34 Digest 198, 1621, 87 LJKB 1254, 119 LT 476.

Wilsons & Clyde Coal Co Ltd v English [1937] 3 All ER 628, [1938] AC 57, Digest Supp, 106 LJPC 117, 157 LT 406.

Heaven v Pender (1883), 11 QBD 503, 34 Digest 192, 1570, 52 LJQB 702, 49 LT 357.

M’Alister (or Donoghue) v Stevenson [1932] AC 562, Digest Supp, 101 LJPC 119, 147 LT 281.

Priestly v Fowler (1837), 3 M & W 1, 34 Digest 202, 1647, Murp & H 305, 7 LJEx 42.

Colfar v Coggins & Griffith (Liverpool) Ltd [1945] 1 All ER 326, [1945] AC 197, 114 LJKB 148, 172 LT 205.

Appeal

Appeal by the plaintiff from a decision of His Honour Judge Davies, given at Westminster County Court, on 11 October 1945. The facts are fully set out in

the judgment of Du Parcq LJ.

Gilbert Beyfus KC and T Elder Jones for the appellant.

R F Levy KC and M Levene for the respondent.

16 January 1946. The following judgments were delivered.

DU PARCQ LJ. This is an appeal from a decision of His Honour Judge Davies, at the Westminster County Court. The claim was made by an actor. The

facts have been found very clearly and very carefully by the county court judge and it is unnecessary to do more than state them quite shortly.

There was a contract between the plaintiff and the defendant, who is a theatrical producer, which is set out in a short document to be found in the

correspondence. It was in the form of a letter. By it the defendant agreed to engage the plaintiff to play dame or any similar part in a pantomime at

Camberwell, commencing on 25 December 1944. The only other material words in it are these:

‘The management reserves the right to produce and present any pantomime they wish, and the management reserves the right to transfer the

pantomime to any theatre on their circuit or any other theatre, but under the same terms and conditions.’

The artists undertook to rehearse for one week at any place decided upon by the management, free of salary. The rehearsals duly took place. They were

to take place at the theatre at Camberwell, at which the pantomime was to be 􀂭 227􀀉 performed from 25 December onwards. On 18 December the plaintiff

took with him to the theatre a small part of the costume which he was to wear as the dame in the pantomime, some shawls and some shoes, and he also had his

overcoat. He complains by his particulars of claim, and so far as the facts are concerned his claim was fully established, that on the following day, when again

he went in his overcoat and when the articles to which I have referred were remaining in his dressing room, those things were all stolen from his dressing room

and, he says, they were stolen through the negligence of the defendant, his servants or agents.

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The claim, as pleaded, was based on these grounds: first of all, it was said that it was an implied term of the contract, the material parts of which I have

read, that the defendant should use all reasonable care in the safeguarding of the plaintiff’s clothing. Then it was said, as an alternative plea, that it was

necessary for the plaintiff to leave his clothing and other goods upon the defendant’s premises so that the defendant, as was alleged, became bailee of the

clothing and goods and, further—and this, I suppose, must be regarded as a separate allegation—was under a duty towards the plaintiff to use all reasonable

care in the safeguarding of the clothing and goods. The judge has found that reasonable care was not taken by the defendant. There was at part of the material

time no one present to look after the stage door. I think it is unnecessary to go into the details, but it is enough to say that there was no satisfactory lock on the

door of the dressing room. There was some preparation made in the way of screw eyes for putting in a padlock, and it was said that sometimes actors

preferred to provide padlocks of their own. There was a Yale lock on the door, but unfortunately it was so ineffective that any pressure against the door would

open it. There was some other lock, I think, which did not work. Altogether it is true to say that there was no means by which the door could be effectively

locked. The plaintiff shared the dressing room with another actor and it may be that it would have been very inconvenient, in the circumstances, if the door

had had to be frequently locked and unlocked as they left or returned to the dressing room. That, however, is not a point that need be further considered. The

judge has found that, assuming that it had been necessary for the defendant to take reasonable care for the safety of the goods of the plaintiff, such reasonable

care was not in fact taken. The judge, having found the facts, considered the law and came to the conclusion that there was no duty of the nature pleaded upon

the defendant at all, and it is against that finding of law that the plaintiff now appeals.

The judge held, and it was not disputed that he was right, that the contract was one of service. He went on to say that the authorities, in his view, made it

plain that there was no implied obligation on a master to take care of the safety of his servants, except as to certain matters which are specified in the decisions

or may be prescribed under statute or by custom. He referred to some observations of Bankes LJ in Cole v De Trafford (No 2), and he pointed out that there

was no hint in the text books of any such obligation as was here alleged. He also held that, if he were free to consider that matter, there was no ground for

implying such a term as the plaintiff, in the course of the argument before him, sought to imply in the contract as being necessary in order to give business

efficacy to it.

I have come to the conclusion that the judge’s judgment was right and that the plaintiff has not established any claim which can be recognised according

to the law of this country. One matter may be cleared out of the way at once. The allegation of a bailment was abandoned very early; it was abandoned before

the judge and now nobody suggests that the defendant was a bailee.

Counsel for the appellant began his argument by relying on the well known proposition that there is an obligation upon an employer to take reasonable

care to provide, among other things, a proper system of working. That, no doubt, is correct, but it must be understood with due regard to the decisions and to

the subject-matter of those decisions. There are many cases in which the matter is dealt with and I do not propose to go through them. Some were referred to

in argument. There is, I think, a convenient summary of the law in the speech of Lord Maugham, in Wilsons & Clyde Coal Co Ltd v English ([1937] 3 All ER

628, at p 645). The House was there dealing with a case of personal injury, and Lord Maugham says, firstly, that an employer is responsible 􀂭 228􀀉 to an

employee for an accident caused by the negligence of another employee; secondly, he deals with the well known limitation on that proposition resting on the

doctrine of common employment, and, thirdly, he says that in the case of employments involving risk the rule as to common employment only applies when

the maxim volenti non fit injuria can fairly be invoked. “In such employments“—that is employments involving risk—” it was held that there was a duty on

the employer“—I leave out the first two duties—“to provide a proper system of working.”

Counsel’s argument was really this: First, he said that an employer must provide a proper system of working. I think he would concede, and I think one

is bound to say that it must be conceded looking at the authorities, that that is in order to secure the personal safety of the workman. Then counsel said that if,

through a breach of the obligation to provide a proper system of working, the workman not only receives personal injury but suffers damage to his clothing, he

will be entitled, and no doubt has often been held to be entitled, to damages in respect of the damage to his clothing. Therefore, he said, it is plain that the

master has a duty of some kind in respect of the clothing. He must prevent it from being damaged, and if he must prevent it from being damaged it is a

legitimate if not a necessary extension of the principle of the decisions to say that he must take reasonable steps also to prevent it from being lost or

stolen—taken away by the felonious act of some other person.

That may be a specious argument, but in my opinion it is quite unsound. I am not deciding that it is so, but it may well be that if, through a breach of the

duty to provide a proper system of working, a workman is not only injured in his person but also suffers damage to his clothing, the damage to the clothing can

properly be included in the damages. It may be that if, through such a breach, his clothes are torn off his back and he suffers no personal injury he may be

entitled to recover damages, but it does not in the least follow from that that there is a duty upon the employer, which would be quite a different duty from that

which I have mentioned, to take steps to safeguard the workman while in his employ against loss through the wrongful act of a third person. That conclusion

does not follow, as it seems to me, in the least, and cannot be made to follow by any process of reasoning that is not plainly fallacious, so that that line of

argument, in my judgment, does not assist counsel at all.

Now where do we get the obligation? There is no bailment and the case does not fall under the general proposition to which I have referred. It is said

that this is a case of tort, and we were reminded of observations which are very familiar to lawyers in Heaven v Pender and in Donoghue v Stevenson. I do not

think I need cite them in terms. There are well known words of Lord Atkin in Donoghue v Stevenson ([1923] AC 562, at p 580), as to the duty towards one’s

neighbour and the method of ascertaining who is one’s neighbour. It has been pointed out (and this only shows the difficulty of stating a general proposition

which is not too wide) that unless one somewhat narrows the term of the proposition as it has been stated one would be including in it something which the

law cannot support. It is not true to say that wherever a man finds himself in such a position that unless he does a certain act another person may suffer, or that

if he does something another person will suffer, then it is his duty in the one case to be careful to do the act and in the other case to be careful not to do the act.

Any such proposition is much too wide. One has to find that there has been a breach of a duty which the law recognises, and to see what the law recognises

one can only look at the decisions of the courts. There has never been a decision that a master must, merely because of the relationship which exists between a

master and servant, take reasonable care for the safety of his servant’s belongings in the sense that he must take steps to insure, so far as he can, that no wicked

person shall have an opportunity of stealing the servant’s goods. That duty is the duty which is contended for here, and there is not a shred of authority which

suggests that any such duty exists or ever has existed. Probably the case in which one would have expected to find decisions on the point is that of the

domestic servant and his or her master. Nobody has ever suggested, and in my opinion it is clearly not the law, that if the master of the house leaves the house

unattended and empty, or if he forgets to shut a window at night or properly to secure it or if the locks on the door have ceased to be secure, by reason of

which lack of care a housebreaker 􀂭 229􀀉 enters and steals, among other things, the goods of a domestic servant living in the house, then the master is liable

to his servant for negligence. Certainly if one looks at the older cases, such as Priestly v Fowler, and others to which reference was made in the course of the

argument, it is quite plain that in earlier days, at any rate, the courts would have thought such a claim to border on the ridiculous, and in my judgment the law

on this particular matter is no different today.

There are many obligations which necessarily arise from the relationship of master and servant and, so far as personal safety goes, they are now, I think,

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pretty clearly defined, and so far as the principle of the safe system of working is concerned the latest decision in the House of Lords [Colfar v Coggins &

Griffiths (Liverpool) Ltd] has told us—and again I need not cite the actual words of it as they are so familiar—that the principle has been extended as far as it

properly can be. There is no support to be found anywhere for the proposition that the relationship of master and servant of itself imports any such duty as is

here suggested.

Now can it be put in any other way? I entirely agree with the county court judge that if one looks at this contract it would be impossible to say that such

a term was implied in it. The theft took place during rehearsals. The only thing said about rehearsals in the contract is that the rehearsals are to take place at

any place decided upon by the management. Of course one would have to imply something there. No doubt places might be found by the management in

which an actor might refuse to rehearse. Of course the place chosen must be a reasonable place. Apart from rehearsals, when it comes to the performance of

the pantomime it may take place not only at any theatre on the circuit of the management (that, I presume, would refer to circuits over which the defendant

would have that degree of control which a lessee at any rate has) but at any other theatre, that is, I suppose, any theatre in the United Kingdom. This term

might well include theatres of which the defendant was not the lessee, where he merely went with his company to act and where, as the plaintiff would know,

he could have very little control over the arrangements as to dressing rooms, and so forth.

It was said by counsel for the appellant that clearly a dressing room must be provided. There I agree. Certainly a dressing room is necessary during

performances, because the actor who is playing the dame could not be expected to wear the appropriate oriental costume in the pantomime Aladdin without a

place in which he could dress himself. No doubt it must be a dressing room reasonably suitable for the purpose, though I dare say dressing rooms in different

theatres vary very much. It does not in the least follow from that that it is upon the defendant to see that every reasonable step is taken to prevent a thief from

entering the dressing room. There were in this particular case many people behind the scenes, some of them not actors at all, some of them workmen from

outside, some of them described by a police witness as being what he called casual persons, and obviously it would be a very serious obligation to have to take

steps which would really effectively prevent the dangers of theft. Many people might legitimately pass the stage doorkeeper who might still not be beyond

suspicion. It is unnecessary, however, to consider how onerous the duty would be if indeed the duty does not exist, and I think it does not. It certainly cannot

be implied in this contract. The defendant’s omission to guard against theft was not, in my opinion, for the reasons I have given, a tort for which an action can

be brought. Failure to provide against theft of the servant’s goods is not a breach of any general obligation. No contractual liability exists. I think I have

exhausted all the possibilities on which counsel for the appellant sought to rely.

Something was said by counsel for the respondent as to the judge’s finding that a thief had come in from outside. It is unnecessary to deal with that,

because assuming that to have been a definite finding—and I am not at all sure that it was—it is unnecessary in the circumstances to consider whether the

evidence supported it or not. Certainly no complaint can be made, as it seems to me, of the judgment. I think that the legal submissions of the appellant all

fail, and in my judgment this appeal should be dismissed with costs.

TUCKER LJ. I agree. This case raises a question as to whether the 􀂭 230􀀉 defendant was under any duty to the plaintiff to take reasonable steps to protect

the property of the plaintiff from theft. I think it is important to emphasise in this case first of all that the relationship of the parties was regulated by an

agreement in writing dated 2 December 1944. It is quite impossible to imply any additional term into that agreement imposing any duty upon the defendant

directly to take such care. The plaintiff must, therefore, look elsewhere for the foundation of the liability of the defendant, if it exists.

Eventually counsel for the appellant founded himself upon the proposition that the duty was a common law duty to provide a proper system of working

which he says applies not only to the physical safety of the workman but also to the safe-guarding of his property. I suppose there is no relationship which has

been considered in courts of law more often than that of master and servant, and nowhere in the whole course of the law is any authority for such a proposition

forthcoming.

There are one or two facts which I think deserve to be emphasised in this case. The county court judge draws the inference with regard to the property

which was stolen that the thief came in from outside and stole it, but I agree that that finding was not perhaps essential to his decision. The property which

was stolen consisted of the plaintiff’s overcoat, which was a necessary adjunct to the fulfilment of the part of the Widow Twankey which he was going to play

in the pantomime, and two shawls and a pair of shoes, which the evidence indicated were garments and footwear which would have been appropriate to the

part of Widow Twankey and which he might reasonably have brought to the theatre in case they were needed. But there was no evidence that he was under

any obligation to produce this clothing and footwear at the theatre on this particular day, and in fact the rehearsals which were going on do not appear to have

been dress rehearsals. I mention that to distinguish this case from any other case which may some day arise perhaps where a workman suffers damage to or

the loss of the tools of his trade which he may be under an obligation to bring and use at his work. The county court judge came to the conclusion that there

was no such duty owed in law, and I agree with the decision at which he arrived.

The class of obligation which counsel for the appellant relied upon is that which was finally expounded in the House of Lords in Wilsons & Clyde Coal

Co Ltd v English, and I merely refer to the often quoted language of Lord Wright, where he says ([1937] 3 All ER 628, at p 640):

‘The obligation is threefold, “the provision of a competent staff of men, adequate material, and a proper system and effective supervision.“’

Then he goes on (ibid, p 644):

‘I think the whole course of authority consistently recognises a duty which rests on the employer and which is personal to the employer, to take

reasonable care for the safety of his workmen, whether the employer be an individual, a firm, or a company, and whether or not the employer takes any

share in the conduct of the operations. The obligation is threefold, as I have explained. The obligation to provide and maintain proper plant and

appliances is a continuing obligation. It is not, however, broken by a mere misuse of, or failure to use, proper plant and appliances, due to the

negligence of a fellow servant, or a merely temporary failure to keep in order or adjust plant and appliances, or a casual departure from the system of

working, … ’

There is no hint in that case, or in any other case, that the proper system of working includes the proper provision of safeguards protecting the workmen’s

property from theft.

It is to be observed that in the section of Halsbury’s Laws of England, Hailsham Edn, Vol 22, pp 174–183, paras 292–306, which deals with the duty of

the master to the servant there are four separate headings. One is “the physical well being of the servant” dealing with the duty or extent of the duty of the

master to his domestic servant or his apprentice. The second division is “safety of the employment.” The third division is “the character of the servant” and

the fourth is the “duty to indemnify.” Under none of these headings is there to be found any suggestion of a duty owed by the master to his servant, merely by

reason of the relationship of master and servant, to safeguard the property of the servant which the servant for his own convenience brings upon the premises

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of his master. I think that is really sufficient to dispose of this case, but I should desire to add, so far as I am concerned, that 􀂭 231􀀉 our decision in this case

does not, of course, mean that under no circumstances is a master ever under any liability with regard to the property of his servant. He may be under such a

liability arising out of the day to day relationship of one man to another which does not rest solely on the relationship of master and servant. If a man,

knowing that his servants have placed their property at a certain place at his works, bicycles or clothing or what not, gives to one of his servants an order the

carrying out of which will be likely to damage or imperil the safety of the servants’ goods, he may well be liable, not by reason of the relationship of master

and servant but by reason of the fact that he is to that extent the servants’ neighbour. He may owe a duty to his servant with regard to his servant’s property

very similar to that which is owed by one user of the highway to another. I agree that this appeal fails and should be dismissed.

LORD GREENE MR agreed.

Appeal dismissed with costs. Leave to appeal to the House of Lords refused.

Solicitors: Clare & Clare (for the appellant); Hart Leverton & Co (for the respondent).

F Guttman Esq Barrister.

[1946] 1 All ER 232