James v Butler [2005] EWCA Civ 1014

Case No B3/04/2115[2005] EWCA Civ 1014
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM TAUNTON
(MR RECORDER STEAD)
Venue Royal Courts of JusticeDate Tuesday, 17th May 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE SEDLEY
LORD JUSTICE RIX
LADY JUSTICE SMITH
Between
RAYMOND WILLIAM JAMESRespondent-v-
Between
ALAN BUTLERAppellant
(Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR. T. GRICE (instructed by Messrs Harris Fowler) appeared for Appellant.MR. J. WATERS (instructed by Messrs Thring Townsend) appeared for Respondent.
J U D G M E N T

LADY JUSTICE SMITH:

[1]This is an appeal from the decision of Mr Recorder Stead made on 21st September 2004 at the Taunton County Court, whereby he dismissed the appellant's claim for damages for personal injuries. On 10th March 2000 the appellant, Raymond James, suffered a serious injury to his right eye when he was struck in the face by a piece of metal which fell from the partially constructed roof of a conservatory at his home in Taunton. It was being erected by his neighbour, the respondent, who had agreed to erect the conservatory for £300. The respondent was able to turn his hand to many types of building work. He had agreed to erect the conservatory for the appellant in his spare time.[2]The conservatory parts were purchased in the form of a kit which came with instructions. The kit comprised an aluminium framework with glazed panels. The appellant was to help the respondent with the work when he needed another pair of hands. It was to be built on the back of the appellant's house where french windows were already in place that would provide access. By the day of the accident the respondent had built the brick footings on which it was to rest and had put up the side panels in place. On top of the side panels was placed a horizontal framework which could carry the roof structure. The main roof ridge came out horizontally from the wall of the house directly above the French windows and extended to the middle of the conservatory. At the end of the ridge was a round structure, described during the evidence as a spigot, a term which seemed plainly to be a misnomer. In fact, we now know that this structure is properly called a spider and it provided the hub from which the roof rafters were to radiate. Against the wall of the house were two roof rafters described as end rafters. Coming out from the first side panel of the conservatory were two horizontal semi-radial rafters which joined to the spider -- these were to be described by the defendant as main rafters -- together with the two end rafters that I have just described. Accordingly, the first stage of the roof construction was to fit the ridge to the end rafters and the two semi-radial rafters. When they were in place the spider at the centre was securely fixed. The next stage was to fit five lighter-weight rafters (sometimes referred to as struts), which were described as either radial or semi-radial rafters.[3]On the day of the accident, the respondent had fitted the first four main rafters without mishap. For this work he had required the appellant's help and the two men worked together for some time. When that stage was finished the appellant left the scene and went to make a cup of coffee, while the respondent got on with the remaining rafters or struts, for which he did not need the appellant's help. A short time later, probably in the order of five to ten minutes, the appellant returned to the conservatory, bringing the respondent a cup of coffee. He stepped through the French doors, looking upwards to the respondent who was on a stepladder. He had advanced by a pace or two when he was struck in the eye by the end of a falling rafter. It was common ground that the appellant himself had not done anything to cause the rafter to fall. He suffered a serious injury.[4]The appellant sued the respondent for damages, alleging, first, that the respondent had caused or allowed the rafter to fall, and, second, that he had failed to warn the appellant as he stepped through the French doors that the rafter was insecure and might fall. In his defence, the respondent averred that he had left the rafter in position and had descended the stepladder to fetch his screwdriver to tighten the rafter into position when it had fallen, just as the appellant entered the conservatory. In a response to a request for further and better particulars of his defence, the respondent later averred that, before descending the step-ladder, he had secured the rafter temporarily with a screw tightened by hand.[5]In evidence, the respondent described in more detail what he had been doing in the few minutes before the accident occurred. He had been working on the fifth rafter. As I understand it, that was the first lightweight rafter, after the main semi-radial rafters. He said that he had rested the outer end of the strut on the top of the roof framework and had not secured it in any way. He had climbed the stepladder and had rested the inner end of the rafter on a lip or flange which ran round the spider. He said that he had inserted the fixing screw, which would secure the end of the rafter to the spider, and had tightened it by hand until it had engaged. He had then descended the ladder in order to fetch the screwdriver, with which he intended to tighten the screw firmly. He considered that it was quite safe for him to do this, to leave the strut as he did. He was climbing back up the ladder with the screwdriver in his hand as the appellant stepped through the French doors. At that moment the strut fell. The respondent did not offer any explanation as to why it had fallen. It appears that there was no wind, and he expressly denied that he himself had done anything which could have dislodged the rafter as he climbed the ladder. As the Recorder was later to find, the rafter cannot have been securely fixed to the spider otherwise it would not have fallen as it did, without any apparent force being applied to it.[6]The Recorder found that the respondent owed the appellant a duty of care. At the hearing there was a good deal of argument as to the standard of care owed by the respondent. The appellant contended that the respondent was a professional contractor and should be judged accordingly. The respondent contended that he was a general labourer and that less should be expected of him. The judge accepted the respondent's contention and held that the standard of care to be expected of him was that appropriate to a general labourer. The respondent did not dispute that he was under a duty to take reasonable care to protect the appellant from harm from injury. He acknowledged that when anyone is working at a height there is a risk of injury from falling tools or material. He acknowledged that he had to take reasonable care to prevent the roof strut from falling. He agreed that he knew that the appellant might well soon return to the conservatory bringing the coffee. It was not disputed that a falling roof strut was foreseeably likely to cause injury. All this was consistent with the respondent's case which was that he had indeed taken reasonable care to prevent the strut from falling. He had finger tightened the securing screw for that purpose.[7]At paragraph 12 of the judgment the Recorder held that it was clear that, by virtue of the fact that it fell, the roof rafter had not been secured in place by the respondent's attempted finger tightening of the screw. That failure to make it secure had caused the accident. At paragraph 17 of the judgment the Recorder found that the respondent had finger tightened the screw so as to secure the strut temporarily. He recited the respondent's evidence that the screw had bitten into the aluminium of the structure (that would be the spider), and that he had thought it safe to leave the rafter like that whilst he went to get the screwdriver. He then said that in his view it was reasonable for the respondent to believe that the rafter would be safe for that short time. The respondent had been entitled to believe that it would be safe by virtue of the fact that he had finger tightened the screw and had left both ends supported. At paragraph 18 of the judgment, he said:
"It may well be that someone with greater experience than that of a general labourer might have taken a different view, in other words that it was not safe to leave the rafter in that position. However, I am satisfied that it was reasonable for a general labourer such as the defendant to think that for that short period the rafter was safe."
In effect, that finding dealt with the allegation that the respondent had negligently caused or permitted the rafter to fall. It was accepted that the allegation as pleaded was wide enough to encompass a sub-allegation that the respondent had failed to prevent the rafter from falling. That allegation with its extension failed.[8]The Recorder went on to dismiss the appellant's other main allegation, which was that the respondent should have warned the appellant not to enter the conservatory at that time. The Recorder held that there had been no realistic opportunity for a warning to have been given and heeded. No point arises about that in this appeal. That finding was sufficient to dispose of the appellant's claim against the respondent. Finally, the Recorder held that if his conclusions on primary liability were wrong, and the accident had been caused by the respondent's negligence, then the appellant had contributed to the accident to the extent of 50 per cent by entering the conservatory with the coffee before ensuring that it was safe to do so. In effect, he held that the appellant ought to have asked whether it would be all right for him to enter.[9]In this appeal the appellant challenges the Recorder's findings both as to primary liability and contributory negligence. First, in respect of the holding that the standard of care was that of a general labourer, Mr Grice for the appellant contended that the Recorder wrongly treated the respondent as an unskilled neighbour helping out a friend, when in reality he was quite experienced in a variety of building tasks and had contracted to undertake the work for £60 a day. However, in my view that challenge is impossible to mount. There was a good deal of evidence about the kind of jobs that the respondent undertook. The Recorder was entitled to take the view that he did in all the circumstances.[10]That said, in my view the Recorder's holding as to the standard of care is unimportant in the context of this appeal. No doubt there will be many cases in which the standard of care to be expected of a professional building contractor will be different from that of a general labourer but, for reasons that I will later explain, this is not one of them. Mr Grice contended that the Recorder had misdirected himself in holding that the respondent had not been negligent because he reasonably believed that he had tightened the screw and had left the rafter safe when in fact he had not. His mistaken belief that he had done what was necessary was, submitted Mr Grice, simply not good enough, where the task was as simple as inserting a screw into a hole, tightening it by hand and being satisfied that it was doing the job that it was intended to do. He likened the respondent's assertion to that of the negligent motorist who, having driven out of a side road into a main road and into collision with an approaching car, claims that he looked carefully both ways before proceeding. The fact that he believes that he looked carefully does not avail him because he cannot have done so in fact. If he had done so he would have seen the car that was plainly there. Here, submits Mr Grice, the fact that the respondent believed that he had finger tightened the screw and that it was safe to leave it does not avail him because he had not done so. There was no evidence that it was possible that he might reasonably have made a mistake and might have reasonably believed that the screw had engaged when it had not. Before the Recorder, there was no evidence of the structure of the spider, not even a photograph or a sketch, let alone any scale drawings or a sample of the real thing. Mr Grice submitted that there was no basis upon which the Recorder could have held as he did. Insofar as there was a gap in the evidence, this should not be filled by an assumption in the respondent's favour. He was the person who had control of the rafter at the time of the accident. It was up to him to show, if he could, that the accident had happened without his negligence. He had failed to do so. The Recorder should not have excused him of proper performance of what he had accepted he ought to have done. Mr Grice further submitted that the Recorder was wrong to differentiate, as he had done, between what it was reasonable for this respondent as a general labourer to have done and believed and what might have been expected of a professional building contractor.[11]Mr. Waters for the respondent submitted that the Recorder's holding was right. He was right to treat the respondent as a general labourer and right to hold that it was reasonable for the respondent to think or believe that he had secured the rafter even though in fact he had not.[12]In my view the Recorder has fallen into error in reaching his conclusions. First, it seems to me that the Recorder was not entitled, on the evidence before him, to conclude that it was reasonable for this respondent to have believed that he had secured the screw when in fact he had not. There was no evidence upon which to base that conclusion. The Recorder did not know how the spider was constructed. He did not know how far the screw had to go in before it engaged. In general, anyone inserting a screw into a hole and turning it by hand can tell when it has engaged. Here, the Recorder had no evidence on which to base a conclusion that this was not the case with this screw and spider. Nor was there any basis for saying that it might not have been reasonable for a skilled contractor to make this particular mistake but that it was reasonable for this general labourer to make it.[13]In addition to there being no evidence as to the reasonableness of the respondent's mistaken belief that the screw had engaged, there was no evidence, in my view, on which he could draw a distinction between the position of the professional contractor and a general labourer. In the absence of evidence to the contrary, it should be concluded that the task of inserting and finger tightening the screw, so as to provide temporary security, is so simple that it falls well within the capability of all but the most inexperienced of handymen. On the evidence available there was no evidence on which the respondent's error could have been excused as reasonable.[14]I stress that I say that on the basis of the available evidence. I accept that it might have been possible to produce evidence to demonstrate that such a mistake as was made could be made despite the exercise of the skill to be expected of a general labourer and of reasonable care on his part. That was not available here. I conclude that there was no basis upon which the respondent should have been excused from his mistaken belief that the strut was secure when it was not. It follows that in my judgment the Recorder's findings on liability cannot stand.[15]I have anxiously considered whether the court should remit the case for a rehearing of the evidence or for further consideration by the same Recorder. During the hearing the members of the court expressed the view that it was difficult for them to envisage the arrangement by which the rafter and spider were connected and how the screw was to be fixed, and that it was impossible for us to imagine how the respondent's mistake might have been made. The court sought to obtain the engineering drawings from the manufacturer of the conservatory to see if they would throw any light upon the question. In the event, although the drawings, when obtained, have greatly improved my understanding of the construction of the conservatory, I do not find that they have helped me with the essential question of whether the respondent could reasonably have made a mistake. In my judgment, there is no sensible reason why the case should be remitted for a rehearing simply in the light of the fact that this court has obtained some drawings and now has a better understanding of how the rafters were assembled.[16]In any event, a further reason militating against the possibility of taking that course is that it is not accepted by the respondent that the drawings that we have obtained precisely and accurately represent the structure of the appellant's conservatory. They have been useful only to give us a general idea of the way in which the conservatory was constructed. That being so, in my view it should fall to this court to draw for itself the necessary inferences from the Recorder's findings of primary fact. The essential finding of primary fact was that the respondent had attempted to engage the screw by finger tightening it but had failed to do so and had left the rafter in a precarious state, so that it fell without the application of any appreciable force. In my judgment, based upon the evidence available to us, the only sensible conclusion is that the respondent ought to have been able to tell whether or not the screw was doing its job and that by leaving the rafter as he did, he had not taken reasonable care for the appellant's safety. He was in breach of his duty of care. That breach resulted in the accident. The respondent is therefore liable to compensate the appellant.[17]I turn now to consider contributory negligence. The Recorder set himself the impossible task of assessing contributory negligence on a hypothetical basis. No doubt he was attempting to help the parties but he set himself an impossible task. We have considered the matter afresh. In my view it was not reasonable to expect the appellant to stop and, as it were, seek permission to enter the conservatory before stepping across the threshold. He had been working in the conservatory for much of the day, coming and going as and when he was required. It would have been apparent to him, as he approached the threshold that there was a rafter in place but there was nothing apparent to indicate that it was insecure. In any event, it appears to me highly likely that, had the appellant sought, as it were, permission to enter the conservatory, the respondent would have told him that it was safe for him to do so because the respondent himself believed that it was safe. In those circumstances, it does not seem to me that there is any proper foundation on which to base a finding of contributory negligence against the appellant. I would hold that the respondent was wholly responsible for this most unfortunate accident.[18]Prior to the hearing or at an early stage in the hearing the respondent had agreed damages. I do not have before me the precise sum. It was in the order of £44,000 inclusive of interest to that time. The figure can be provided in due course. I would allow the appeal for the reasons that I have given.

LORD JUSTICE RIX: I agree and add some words of my own only because we are disagreeing with the judge at trial. The Recorder found that, by virtue of the fact that it fell, the rafter had not been secured in place by Mr Butler's attempted finger tightening of the screw. That is, as the Recorder himself remarked, a statement of the obvious. Later in his judgment, at paragraph 19, he made further findings about this. He found that Mr Butler was entitled to believe that the rafter was safe by virtue of the fact that he had finger tightened the screw and that the ends of the rafter were otherwise supported at one end by the wall plate and at the other end by the lip on the spider.

[20]What, however, did the Recorder mean when he said that Mr Butler was entitled to believe that the rafter was safe? It was not in fact safe or secure and whatever finger tightening had gone on was not enough, for the rafter fell, despite the absence of anything further happening to dislodge it. There is no evidence from either party of anything causing the rafter to fall. Mr Butler's evidence was that he did not touch it in any way after he had put it in place.

The Recorder explained what he meant in the immediately following paragraph 18, where he said:

"It may well be that someone with greater experience than that of a general labourer might have taken a different view, in other words that it was not safe to leave the rafter in that position. However, I am satisfied that it was reasonable for a general labourer such as the defendant to think that for that short period the rafter was safe."
In other words, it was because Mr Butler was a general labourer and not someone more experienced that the Recorder considered that he, Mr Butler, was entitled (that is to say, that it was reasonable for him) to think that the rafter would be safe for a short while.[22]That is a proposition of law which in my judgment is not correct. Thus, as a matter of general principle, as Clerk and Lindsell on Torts, 18th Edn, 2001, paragraph 7-162, says:
"The objective standard required by the law is one which relates to the type of activity in which the defendant is engaged rather than to the category of actor to which the defendant belongs."
Applied to the present situation, that means that Mr Butler, who, after all, was being paid for his work, has to be judged at least by the degree of care and skill which a reasonably skilled DIY enthusiast, constructing a conservatory, might be expected to apply to the work in question. In fact, Mr Butler was more than a DIY enthusiast. He was a general building labourer who was employed, if only on an informal basis, to erect the conservatory, and who admitted in his pleadings that he was a carpentry and building contractor, although it appears from his evidence that as at the time of the accident he was anticipating that status by about a year. In any event, it did not require more than a modicum of experience, nothing more than a matter of common sense, to understand that there was a risk of the rafter falling unless it was sufficiently secured, even for a short period, while the screwdriver was fetched in order to secure it permanently in place.[23]Mr Butler in truth accepted that he understood that risk which is why he finger tightened the screw and said that he did it until he felt the screw bite. In that he was applying his common sense. Unfortunately, like my Lady's example of the car driver who looked but did not see the oncoming car, he tightened the screw but did not tighten it enough. The fact that he may have thought that it was enough is not determinative. Unless he was operating under a standard of care lower than an objectively reasonable one, the fact that he did not tighten the screw sufficiently to hold the strut in place, even for a short time, and in the absence of any evidence of any other cause to dislodge it, means, I fear, that he was in breach of the applicable standard of care. I also agree with what my Lady has said about contributory negligence.[24]In the circumstances I agree that the appeal should be allowed for the sum in damages which has been agreed.

LORD JUSTICE SEDLEY: I also agree. This action was conducted without a usable drawing, diagram or sketch of the part of the structure which may have caused the claimant's injury. There was no need to instruct an engineering expert. All that was needed was a copy of the supplier's installation instructions.

[26]This court, at the end of argument, still having no clear picture of the material parts of the structure, obtained the supplier's installation instructions by fax over the short adjournment. These were of course made available to the parties. Counsel were able to confirm that the fixing system, as the instructions showed, had involved bolting the faces of the rafter ends to the canted plates of the spider which were drilled for the purpose. But Mr Waters for the defendant was unable to accept that this was the only means of support, because his client had, it appeared, given evidence that there was additionally a bracket on which the end of the rafter could sit. We have therefore, as my Lady has said, set this new material aside.[27]I would observe that the transcript, to which our attention was drawn in this regard, suggests that the presence of "the bracket" was fed to the defendant by his counsel:
"(Q) What shape was the end of the strut? (A) The strut was flat, it sat right on the spigot up against a bracket of some sort that was screwed through the back. (Q) So you could sit it on the bracket without a screw in there? (A) Yes. (Q) And when it was sat on the bracket would it stay there when, when it sat on the bracket unless it was not (pause) Was it safe there when you, before you screwed it in was it safe when you just put it on the bracket temporarily. (A) I thought it was safe and I was winding the screw to the back."
A little later the Recorder took up the suggestion that had come from counsel:
"It is resting on a flange of some kind? (A) Yes. (Q) And you have got a screw coming in from the back? (A) Yes."
I quote that in fairness to the defendant. Either way, however, the fall of the rafter was consistent only with its having been inadequately secured. That much is necessarily common ground.[28]This being so, the defendant, in the circumstances carefully described by my Lady, will have been liable to the claimant for the consequences unless the defendant could establish that his failure to secure the rafter end had occurred without negligence on his part. This would have required acceptable evidence that it was possible to insert the securing screw or screws manually, by way of temporary fixing, in a way which which made them seem to have gone home when they had not gone home. There was no such evidence. The Recorder was left with a collapse which, with ordinary care, should not have occurred and could draw no legitimate inference save that it was the defendant's fault.[29]For these reasons, as well as those given by Smith LJ and Rix LJ, I agree that the appeal must be allowed and that the claimant is entitled to his damages in full.

ORDER

Appeal allowed; claimant to have the judgment sum of £44,525.32; appellant to have his costs in the Court of Appeal and 50% of his costs below, to be assessed if not agreed; interest on damages awarded at 6%.