Medway v Earl of Jersey

CourtRoyal Court
JudgeHamon, Commr. and Jurats Orchard and Herbert:
Judgment Date13 December 1993
Date13 December 1993
Hamon, Commr. and Jurats Orchard and Herbert:

S.A. Meiklejohn for the plaintiff;

R.A. Falle for the defendant.

Cases cited:

(1) Fairman v. Perpetual Inv. Bldg. Socy., [1923] A.C. 74; (1922), 128 L.T. 386; 39 T.L.R. 54; 92 L.J.K.B. 50, applied.

(2) Hawkins v. Couldson & Purley U.D.C., [1954] 1 Q.B. 319; [1954] 1 All E.R. 97; (1953), 52(1) L.G.R. 117; 118 J.P. 101; 98 Sol. Jo. 44, applied.

(3) Macrae (née Tudhope) v. Jersey Golf Hotels Ltd., 1973 J.J. 2313, considered.

(4) Marney v. Scott, [1899] 1 Q.B. 986; (1899), 15 T.L.R. 320; 68 L.J.Q.B. 736; 47 W.R. 666; 43 Sol. Jo. 417, applied.

(5) Wheeler v. Copas, [1981] 3 All E.R. 405, considered.

(6) Yarmouth v. France (1887), 19 Q.B.D. 647; 4 T.L.R. 1; 57 L.J.Q.B. 7; 36 W.R. 281; on appeal (1888), 4 T.L.R. 561, applied.

Additional cases cited by counsel:

Ancell v. McDermott, [1993] 4 All E.R. 355.

Bell v. Travco Hotels Ltd., [1953] 1 All E.R. 638.

Billings (A.C.) & Sons Ltd. v. Riden, [1957] 3 All E.R. 1.

Bowater v. Mayor &c. of Rowley Regis, [1944] 1 All E.R. 465.

Brown v. Collas & Le Suer (Electrical Contractors) Ltd., 1992 JLR 145.

Browne v. Premier Builders (Jersey) Ltd., 1980 J.J. 95.

Burchell v. Le Cuirot, 1960 J.J. 117.

Caledonian Ry. Co. v. Mulholland, [1898] A.C. 216.

Chapman or Oliver v. Saddler, [1929] A.C. 584.

Davie v. New Merton Board Mills Ltd., [1958] 1 All E.R. 67.

Denny v. Suppliers & Transp. Co. Ltd., [1950] 2 K.B. 374.

Farr v. Butters Bros. & Co., [1932] 2 K.B. 606.

Ferguson v. Welsh, [1987] 3 All E.R. 777.

Gledhill v. Liverpool Abattoir Utility Co. Ltd., [1957] 3 All E.R. 117.

Grant v. Australian Knitting Mills Ltd., [1936] A.C. 85.

Hacon v. Godel, 1989 JLR N-4.

Hacquoil v. George Troy & Sons Ltd., 1970 J.J. 1305.

Heaven v. Pender (1883), 11 Q.B.D. 503.

Jacobs v. L.C.C., [1950] 1 All E.R. 737.

Kealey v. Heard, [1983] 1 All E.R. 973.

Langridge v. Levy (1837), 2 M. & W. 519.

Louis v. Bellée, 1972 J.J. 2049.

Louis v. E. Troy Ltd., 1970 J.J. 1371.

Lucy v. Bawden, [1914] 2 K.B. 318.

Mallett (née Ollivier) v. Wilson, 1979 J.J. 47.

Market Investigations Ltd. v. Minister of Social Security, [1968] 3 All E.R. 732.

Neville v. Jersey Granite & Concrete Co. Ltd., 1950 J.J. 1

O'Kelly v. Trusthouse Forte PLC, [1983] 3 All E.R. 456.

Philco Radio & TV Corp. of Great Britain v. J. Spurling Ltd., [1949] 2 All E.R. 882.

Qualcast (Wolverhampton) Ltd. v. Haynes, [1959] 2 All E.R. 38.

Rushton v. Turner Bros. Asbestos Co. Ltd., [1959] 3 All E.R. 517.

Rutter v. Beck, 1990 JLR 252.

Smith v. Leech Brain & Co. Ltd., [1961] 3 All E.R. 1159.

Stewart v. Reavell's Garage, [1952] 1 All E.R. 1191.

Stopher v. Commodore Shipping Servs. (1982) Ltd., 1985-86 JLR 219.

Tate v. Latham & Son, [1897] 1 Q.B. 502.

Vacwell Co. Ltd. v. B.D.H. Chemicals Ltd., [1969] 3 All E.R. 1681.

Watson v. Priddy, 1977 J.J. 145.

Wilsons & Clyde Coal Co. Ltd. v. English, [1937] 3 All E.R. 628.

Text cited:

Halsbury's Laws of England, 4th ed., vol. 9, para. 351, at 224.

Employment—safety—safe system of work—contract between independent contractor and employer by which contractor to work with employer's equipment contains implied term that equipment fit for purpose

Employment—safety—safe system of work—independent contractor using employer's equipment without knowledge of hidden defect and with insufficient training does not assume risk if uses equipment wrongly but in reasonable manner—employer liable for injury thereby caused to contractor

The plaintiff brought an action against the defendant for damages following an accident which occurred whilst he was undertaking work for the defendant.

The plaintiff, an independent contractor, was hired by the defendant to undertake gardening work in his extensive gardens. He was allowed to use equipment owned by the defendant, including a motorized mower and trailers which could be towed behind it to transport garden materials. Employees of the defendant also worked in the gardens but did not supervise the plaintiff's work. The plaintiff was not familiar with driving such a mower and it appeared that although he was instructed how to drive it, these instructions were inadequate and no guidance was given or made available as to the weight the mower was capable of towing safely. There was no written contract between the parties.

Whilst working in the gardens, the plaintiff loaded a large trailer with heavy materials and with the mower attempted to tow it along a steep path which led diagonally up a much steeper slope. In the course of this he stopped the mower on the path. When he restarted, the wheels spun, the mower slipped backwards, the plaintiff lost control and the mower and trailer fell down the slope, overturning and causing the plaintiff serious injuries. It appeared that he had been driving in accordance with the instructions that had been given to him.

The plaintiff brought the present proceedings and expert evidence was adduced as to the technical specifications of the mower and the manner in which it had been used. It appeared that it was not designed primarily for towing and even on a level surface should not have been used to tow such a large trailer, nor such a heavy weight, although employees of the defendant, who were familiar with driving the mower, had often done so and would apparently have driven up the steep path as the plaintiff had done if called upon to do so. It appeared that under these conditions, it was highly questionable whether the mower had sufficient traction and an experienced driver should have known this.

The plaintiff submitted that (a) it was an implied term in the contract between the parties that any equipment provided by the defendant would be fit for the use for which it was intended to be put; (b) the defendant owed the plaintiff a duty to take reasonable care to prevent his being injured by any unusual dangers on the defendant's property of which the defendant ought to have known and had failed in his duty in not warning the plaintiff of the limited towing capacity of the mower; and (c) the plaintiff had not known of the danger of overloading the trailer and in these circumstances had not himself acted unreasonably.

The defendant submitted in reply that (a) the plaintiff had been provided with the equipment with no assertions as to its capabilities or limitations and he had therefore to use it at his own peril; (b) since the danger of overloading the trailer had been obvious, the plaintiff had voluntarily assumed the risk of injury; and (c) the fact that the defendant's experienced employees could drive up the path with such a load did not justify the plaintiff's attempting to do so and he had accordingly acted unreasonably in doing so and had thereby precluded the defendant's liability.

Held, giving judgment for the plaintiff:

(1) The oral contract between the parties regarding the work the plaintiff was to undertake included an implied term that the equipment provided by the defendant would be fit for the use to which it would be put (page 415, lines 17-26).

(2) Taking into account the towing capability of the mower, the excessive size and weight of the loaded trailer and the conditions in which it was towed, the equipment as used had a hidden defect, a "defect" being anything which rendered it unfit for the use for which it was intended, when used in a reasonable way and with reasonable care. Moreover, the plaintiff had not known of this defect, having no knowledge of the mower's towing capacity and having had insufficient training as to how to drive it. In these circumstances, he had not acted unreasonably in loading and towing the trailer as he had and the defendant was accordingly liable to him (page 417, lines 4-10; page 423, line 44 - page 424, line 37).

HAMON, COMMR.: The Background Facts Mr. Wilson John Medway is the plaintiff in this action. He is 32 years of age. He was educated at Victoria College and left at 18 hoping to take up a career as an arboriculturalist. As a preliminary to this goal he commenced work in 1979 with Public Works, hoping to gain some practical experience prior to commencing a course in England but he had an accident while high up in a tree where he was lopping branches. This was caused, apparently, by a lack of care by those who were superintending the work and he fell some 40 ft. He escaped serious injury but the experience deterred him from his goal. He had studied some horticulture on dayrelease (but had very little practical knowledge of heavy agricultural machinery) and he left Public Works at the end of 1981. He worked here and there as a gardener and, growing in confidence, decided to set up his own business, "J.M. Garden Maintenance." His advertisement proclaimed the firm as "Garden Landscape and Maintenance Contractors" and stated that it "offered a complete and competitive gardening service." He employed staff but had very few of his own tools, other than the normal run of equipment such as chainsaws, bush cutters, a rotavator and lawn mower. He had carried out some work for Lord Jersey's son, Charles Villiers, and it may have been as a result of that work (no one was quite certain) that he was employed by Lord Jersey, who is the defendant in this action.

The defendant lives at Radier Manor, which is a substantial property of gardens and wooded côtils. The great storm of 1987 caused severe damage to these woods and some two hundred trees were lost. Lord and Lady Jersey, being keen gardeners, decided to tackle the havoc that the storm had wreaked. They employed full-time gardeners and their head gardener at the time (he has since left their employment), Mr. "Mick" Le Couillard, gave evidence before us.

The gardeners had enough work without the added burden of the tree clearance and planting, although they had cleared a considerable number of trees by this time. Mr. Medway was duly employed as an independent contractor to carry out...

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