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Barbados Supreme Court |
] [Hide Context] Tort - Negligence - Independent contractor - Excavation of highway for laying pipes - Potential danger to users of highway - Injury to cyclist - Liability - Contributory negligence - Indemnity - Law Reform (Tortfeasors) Act, 1953.
Damages - Personal injury - Closed spiral fracture of lower third of right tibia and oblique fracture of upper third of right fibula - Quantum.
Facts: The Natural Gas Corporation was authorised by statute to dig up the highway and to lay pipes thereunder. The Corporation employed the second defendant to excavate a pipe track in the highway for the purpose of laying pipes therein. One of the terms of the contract was that the second defendant was required to refill the pipe track after pipes had been laid by the Corporation up to the level of a pipe track as required. A hole (basin shaped) formed and a cyclist whilst riding his bicycle at night on the said highway on his proper side rode into this hole when meeting oncoming traffic. He fell and received injuries. He sustained a closed spiral fracture of the lower third of the right tibia and an undislaced oblique fracture of the upper third of the right fibula. There was no permanent disability. There was no contributory negligence on the part of the cyclist. The cyclist claimed damages from the Corporation and the contractor, the second defendant.
Held: (i) both defendants were negligent; the Corporation as to one-third and the second defendant as to two-thirds of the damages.
(ii) general damages were assessed at $1200.
Cases referred to:
(1) Almeroth v. Chivers & Sons, Ltd., [1948] 1 All E.R. 53.
(2) Goodson v. Sunbury Gas Consumers' Co., Ltd. (1896) 75 L.T. 251. [273]
(3) Penny v. Wimbledon U.D.C., [1899] 2 Q.B. 72.
(4) Semtex, Ltd. v. Gladstone [1954] 2 All E.R. 206.
(5) Daniel v. Rickett, Cockerell & Co. Ltd., & Raymond [1938]
2 All E.R. 631.
(6) Stapley v. Gypsum Mines, Ltd. [
1953] UKHL 4; [1953] 2 All E.R. 478.
(7) Jones v. Manchester Corpn. [1952] 2 All E.R. 125.
Statutes referred to:
(1) Law Reform (Tortfeasors) Act, 1953.
(2) Law Reform (Married Women and Tortfeasors) Act, 1935, s. 6 (U.K.).
Mr. H.B. St. John for the plaintiff instructed by Messrs. Haynes and Griffith.
Mr. J.S.B. Dear for the first defendant instructed by Messrs. Cottle, Catford & Co.
Mr. E.W. Barrow for the second defendant instructed by Mr. E.D. Rogers.
HANSCHELL, J.: In October, 1957, the Natural Gas Corporation (hereinafter referred to as the Corporation), having statutory authority to dig up the highway and lay pipes, employed James C. Duguid to excavate a pipe track in the highway known as Collymore Rock Road on this Island. The work was begun by Duguid on March 5, 1958, and a pipe track was excavated by him in the highway starting from a point near to the junction of Pine Road, Culloden Road and Collymore Rock Road. This track was cut near to the left-hand side of the road going from the said junction in the direction of Bridgetown. The Corporation laid pipes in the track, screwed them together and tested them, after which Mr. Duguid had the track filled over the pipes. When the track was filled it was brought to a level higher than that of the adjoining road surface. The material used in filling was that which had been dug out and consisted of soil and loose stones. This was a temporary filling. On March 28, 1958, from the beginning of the pipe track near the Pine and Culloden junction past the house of Mr. Lionel Gittens, and continuing to a place opposite "Briarfield" on Collymore Rock Road, the pipe track had been filled. The filling of this part of the track had taken place two or three weeks before that date.
On March 28, 1958, at about 7.45 p.m. the plaintiff rode his bicycle along Collymore Rock Road from the east towards Bridgetown and through the Pine and Culloden junction and continued along the said Collymore Rock Road to a point opposite the house where Mr. Lionel Gittens then lived. At this point there was a car parked to the plaintiff's right-hand side. There was also another car approaching the plaintiff from the direction of Bridgetown with its lights on; this approaching car was then by George Street some distance away. At this point, on seeing the lights of the approaching car, the plaintiff pulled more to his left. As soon as he pulled to the left his bicycle entered a hole in the road and the plaintiff fell and broke his right leg. This hole was not lighted, fenced or in any way warned by sign or other device. The plaintiff says, "Where I saw white I took to be the edge of the gutter and I was riding on the edge of the black to the extreme left." He also says "the hole started from a line which was all white and extended on to the black." The plaintiff had not used this road for some years and at the time he fell he did [274] not know that this road had been excavated. It was the filled pipe track on his left which the plaintiff took to be the edge of the gutter. The hole in the road into which the plaintiff rode was approximately 18 inches in diameter and about 7 to 8 inches deep. The hole was basin shaped. It was connected to the pipe track and lay immediately to its right, so that it was directly in the path of the plaintiff as he road along the right-hand edge of the filled pipe track. At this time the track had been filled in by a bank of rubble and was unfit for a cycle to travel on.
It had been argued for the second defendant that the evidence is against any finding that this hole was excavated by his servants. Of the Witnesses, Gittens says that the hole was dug the same day, but he also says that he had only a hazy recollection of the whole affair, and he gave me the impression that he was indeed hazy about it. Duguid's witness, Ifill, who was the watchman at the excavation and was present at the time of the accident, says that he never noticed the hole before he went to the scene of the accident. He also said that he never looked at the track after it was covered up, that there was no hole there before the day of the accident, and that he had never walked over the track before March 28. Darnley Clarke, however, says that he had been travelling this road before the accident and had seen the hole there for two weeks and he passed there every day. He says the hole was joined up to the pipe track "to the side of the track and joining it." P.C. Henderson Harris has also described this hole as "a hole not filled entirely and that hole was connected with the whole main going down." "The hole was part of the track." In addition to this, there is evidence that there was no hole in the road at that point before Mr. Duguid started the excavation. Duguid's servants do not always dig the track straight and of uniform width all the way. Up to the date of the accident there had been no installation of service to any householder on that road. There is no direct evidence of the digging of the pipe track or of the digging of the particular hole.
On the evidence as a whole on this point I find that the hole was dug or caused by the servants of the second defendant, Duguid, in the course of the excavation of the pipe track.
The defendant, Duguid, knew that this temporary filling of the track had a tendency to subside under heavy traffic, that traffic could kick out the filling and that rain could cause it to subside. There is no doubt that this filling which was not rolled in or tarred was liable to be removed by water and traffic and would subside, so that the resulting hole or unevenness was liable to become a danger to the public who used this highway. The hole into which the plaintiff fell was a danger to users of the highway and it was a nuisance despite its size (Almeroth v. W.E. Chivers & Sons, Ltd. [1948] 1 All E.R. 53). It is clear that the second defendant, Duguid, was negligent in allowing this excavation to become a danger to passers-by even although his act in excavating was a lawful one (Goodson v. Sunbury Gas Consumers' Co., Ltd. (1896), 75 L.T. 251).
In the present case the Corporation employed Duguid, an independent contractor, to excavate the highway; this work was likely to involve danger to persons using the highway. The law cast upon the Corporation a duty to take care that persons passing along the highway were not injured by the negligent performance of this work. The contractor, Duguid, may here be regarded as the [275] agent of the Corporation in the performance of this the Corporation's duty and the Corporation is liable for Duguid's negligence in his performance.
In Penny v. Wimbledon U.D.C. [1899] 2 Q.B.72 the statement of the law by Bruce, J., was approved, and is as follows:
"When a person employs a contractor to do work in a place where the public are in the habit of passing, which work will, unless precautions are taken, cause danger to the public, an obligation is thrown upon the person who orders the work to be done to see that the necessary precautions are taken, and if the necessary precautions are not taken, he cannot escape liability by seeking to throw the blame on the contractor."
The plaintiff rode his bicycle with his hands applying pressure on both brakes and at a moderate speed. He was travelling on his left and proper side and his bicycle light was burning. He saw the parked car on his right and the moving car approaching from the direction of George Street. He steered his bicycle closer to his left-hand side on seeing the approaching car and rode along the edge of what he took to be the left-hand gutter. He did not see the hole into which he fell. In riding as he did, the plaintiff did not fail to take reasonable care for his own safety. His failure to see the hole in his path does not in the circumstances make him guilty of contributory negligence. At that time of night and in the circumstances in which the plaintiff rode on a highway, facing the approaching traffic and with a parked car on his right, he was not bound to keep his eyes on the ground (Almeroth v. W.E. Chivers & Sons, Ltd.).
As a result of his fall the plaintiff broke his right leg. On the undisputed evidence of Dr. Morris, Surgical Registrar of the Barbados General Hospital, the plaintiff sustained a closed spiral fracture of the lower third of the right tibia and an undisplaced oblique fracture of the upper third of the right fibula. A local anaesthetic was used and the fractures set in a plaster cast from his toes to his upper thigh. The plaintiff was kept in hospital from the date of his injury to May 6, 1958, when he was sent home. He was kept in this first cast for 12 weeks and then in a shorter cast for another month. It took six months for him to recover completely. After he was sent home the plaintiff had to return to hospital several times for observation.
The plaintiff suffered considerable pain for two weeks and thereafter discomfort and inconvenience. He has no permanent disability. He has not suffered any loss of earnings. The plaintiff's bicycle was damaged as a result of the accident and the damage to the bicycle cost him $6.60. As a result of his personal injury the plaintiff incurred the expense of $12 in taxi fares to and from the hospital and $4.20 in bus fares on visits to the beach in order to soak his leg in the sea and get rid of the stiffness which resulted from inactivity in the cast. None of these special damages was disputed and they are fair and reasonable. The plaintiff, having suffered no loss of earnings, would not have been eligible for anything had he been able to serve as a juror and so he would not be entitled to anything under that head of special damage.
For the reasons I have given I award judgment for the plaintiff against both [276] defendants jointly and severally in the sum of $1,222.80, of which $22.80 is special damage.
The first defendant has served on the second defendant a notice as prescribed by O.14, r. 26 (a), of the R.S.C. This notice is dated May 20, 1959 and service was effected before hearing of this action began. No appearance to this notice was entered, and the second defendant is presumed to have been aware from the commencement of the hearing that the first defendant was claiming contribution from him in respect of any damages payable by the first defendant and of the costs of the action.
After counsel for the first defendant had been heard on the question of contribution, counsel for the second defendant stated that he did not disagree with counsel for the first defendant on the law which he had submitted was applicable to this question. It was therefore understood and intended by both defendants that the question of contribution would be dealt with in this action. The first defendant claims contribution from the second defendant under the Law Reform (Tortfeasors) Act, 1953, which is similar to the Law Reform (Married Women and Tortfeasors) Act, 1935 [U.K.], s. 6.
It is said for the first defendant that the second defendant should contribute to the extent of 100 per cent and that this should relate to the damages, the plaintiff's costs and the costs of the first defendant. This would amount to a total indemnity. For this the first defendant has relied on the terms of the contract between the two defendants as contained in the letters of October 11, 1957, and October 14, 1957 produced in evidence, and on the fact, as submitted for the first defendant, that the second defendant was bound by paragraph 4(d) of the letter of October 11.
Up to the time that the second defendant, Duguid, had completed his evidence in chief, it is clear that the plaintiff, the first defendant and counsel for the second defendant understood that the second defendant had accepted the terms contained in the letter of October 11 inclusive of the paragraph 4(d) in question. I also understood this to be the position. At this point in the hearing during cross-examination of the second defendant, Duguid for the first time stated that he had never accepted the said paragraph 4(d), that Mr. Orchard, the manager of the Corporation, had orally agreed that the contract was varied by exclusion of that paragraph and that he, Duguid, was not bound by it. Duguid's counsel then stated that he had not received such instruction.
At the stage in this case when Duguid denied that he was bound by the said paragraph 4(d), the position was that the notice of claim to contribution had been served long before hearing, and this issue of variation of contract had not been raised by Duguid in his pleadings, or by cross-examination of the acting manager of the Corporation when he produced the two letters to prove the contract and its terms, or even in Duguid's evidence in chief. Up to then, Duguid's counsel had no instructions concerning it. In support of his claim that his contract was varied, Duguid asserts that the variation was made orally by Mr. Orchard and himself before October 14, 1957, and yet Duguid made no reference to it in his letter dated October 14, 1957. On his re-examination, Duguid further asserted that there was a considerable subsidence of the temporary filling or reinstatement of the [277] excavation at the corner of Jemmotts Lane and that he refilled it at the request of Mr. Orchard and was paid extra for it and not under the terms of the contract. He says that he put in a bill under the heading of "Traffic Control". Orchard does not deny that he may have had a conversation with Duguid subsequent to Duguid's receipt of the letter from Orchard to him, dated October 11, 1957. He does not remember whether this conversation took place. Orchard emphatically denied that he agreed to pay Duguid for refilling subsidence outside of the terms of the contract and in cross-examination by counsel for Duguid he said, "I am positive that I did not tell Duguid that I would not expect him to be responsible under paragraph 4(d) of my letter..." after he had been reminded of the solemn oath under which he testified. I have seen both of these witnesses. I do not believe Duguid. I accept the evidence of Orchard and I find that the contract was contained in the two above-mentioned letters of October 11 and 14, 1957, inclusive of the said paragraph 4(d) of the letter of October 11, 1957. By the term contained in this said paragraph, Duguid was responsible for "the temporary reinstatement of the road to tender it in a fit state for temporary use by heavy traffic, and its maintenance in such a state until its final reinstatement by the Highways and Transport Department. (All surplus soil and rocks to be completely removed from the roadway.)" It is on this responsibility of Duguid for maintenance of the road until final reinstatement and on the authority of Semtex, Ltd. v. Gladstone [1954] 2 All E.R. 206 that the first defendant relies for the submission that the contribution by the second defendant should be 100 per cent.
Semtex, Ltd. v. Gladstone was a case of master and servant, a case of pure vicarious liability and a case in which the sole cause of the injuries was the negligence of the servant. In the present case the Corporation was the employer of an independent contractor and the liability of the Corporation is not properly vicarious; see Daniel v. Rickett, Cockerel & Co., Ltd., & Raymond and Salmond On Torts, 12th Edn., p. 147, para. 45, where it is stated as follows:
"The liability of the employer of an independent contractor, however, is not properly vicarious: the employer is not liable for the contractor's breach of duty; he is liable because he has himself broken his own duty. He is under a primary liability and not a secondary one."
Here the Corporation was not only under a duty to take care but also to see that care was taken. In the presence of this strict liability the Corporation cannot be regarded as an innocent party even for the purpose of contribution and in spite of Duguid's contractual responsibility above referred to. This is so because of the principles laid down in Stapley v. Gypsum Mines, Ltd. in relation to apportionment, where it was said by Lord Reid ([1953] 2 All E.R. 478 at p.486):
"A court must deal broadly with the problem of apportionment and in considering what is just and equitable must have regard to the blameworthiness of each party, but the claimant's share in the responsibility for the damage cannot, I think, be assessed without considering the relative importance of his acts in causing the damage apart from his blameworthiness." [278]
I understand this to mean that the damage should be apportioned in accordance with the proportions in which the parties are to blame (see Clerk & Lindsell On Torts, 11th Edn., p. 417).
On March 28, 1958, when the plaintiff fell in this hole and received his injury, the work was still in progress a few hundred feet away on the same road. Both the Corporation and Duguid were engaged alternately in this work. Duguid cut the track, the Corporation then laid and tested pipes in this track and Duguid refilled and swept away the excess soil. None of the pipe track had yet been finally reinstated by the Department of Highways and Transport. Both defendants were primarily liable to take proper care and the Corporation was liable to see that proper care was taken. Both of them with their servants still actively engaged on the same road could have seen the hole into which the plaintiff fell and either refilled it or warned of its presence. In the cases of Daniel v. Rickett, Cockerell & Co., Ltd., & Raymond and Jones v. Manchester Corpn. [1938] 2. All E.R. 631 there existed this primary liability in both defendants; these cases are not overruled by the decision in Semtex, Ltd. v. Gladstone.
I think, therefore, that there should not be 100 per cent contribution. The Corporation is responsible and to blame, although I think that it is less to blame than Duguid because of his contractual responsibility with the Corporation for temporary reinstatement and maintenance thereof at the time of the accident. Having regard to their responsibility, it is just and equitable that the first defendant contribute one-third and the second defendant two-thirds of the damages and the plaintiff's costs of this action to be taxed, and I do so order. Costs are at the discretion of the court. There is authority by which the one defendant may be ordered to pay the costs or part of the costs of the other defendant in a proper case.
On behalf of the first defendant it was submitted that the order for contribution should include contribution by the second defendant to the costs of the first defendant. I have considered this submission but I do not think that the order for contribution should extend to the first defendant's costs in this case. In coming to this decision I have taken into account the pleadings, the primary liability of each defendant as well as the responsibility of each and the general course of the trial. Each defendant will bear his own costs. [279]
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