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[1954] 1 W.L.B.

835

[COURT

OF

APPEAL.]

*WATT v. HERTFORDSHIRE COUNTY COUNCIL.

C. A.

[1952 W.

No. 1451.]

1954

May 6, 7.

Negligence Safe system of work Fireman Fireman injured

while

travelling to emergency in vehicle with unlashed jack Necessary riskObject of saving life or limb justifying taking of abnormal

risksStandard

of duty

Fire Brigade.

Volenti

non

of

fit

employers.

injuria.

Singleton,

Denning and

Morris L.JJ.

A fireman was injured by lifting-gear while travelling in a lorry

not specially

fitted

for

carrying the gear to an emergency

where a

woman was trapped under a heavy vehicle : — Held, that though the fire authorities were under a duty to provide proper appliances and to take reasonable care to avoid exposing their firemen to unnecessary risks, they were not negligent in requiring the firemen to take abnormal risks which they were ready to take in order to save life and limb.

Per Denning L.J. In balancing the risk against the measures necessary to eliminate it, the risk must be balanced against the end to be achieved. Dictum of Asquith L.J. in Dabom v. Bath Tramways Motor Co.

Ld. [1946]

2 All E.R. 333, 336, approved.

 

Decision of Barry J.,

ante, 208; [1954]

1 All

E.R.

141 affirmed.

APPEAL from

Barry

J.

Since 1939 the plaintiff

had been employed by th

defendants,

the local fire authority,

as

a

fireman

at Watford fire station.

On

July

27, 1951, the plaintiff

was on

duty

at

the

fire station

when

an emergency call was received that a woman was trapped

under

a heavy

vehicle

 

about

20O or

300 yards

away.

The

sub-

officer

in

charge

immediately

left

the

station

in

a

pump-escape

vehicle, but

before

going he gave instructions that the

plaintiff's

team

should follow

him

to

the

scene of the

accident

transporting

with them

in

a

Fordson

lorry heavy

lifting

gear,

namely

a

large

jack

standing

on

four

small

wheels

and

weighing

about

two or three hundredweight. The jack was loaded into the

back

of

the

lorry

and was accompanied

by

the plaintiff

and

two

other

firemen

who steadied the jack.

The

lorry

had

a

plain

floor

and

sides

and

there

was nothing to which

the

jack

could

have been lashed.

Shortly

after

the lorry had left

the

fire station

the driver had

to apply the brakes suddenly;

all three men

were

thrown off their balance, the men steadying the jack were

 

unable

to

hold

it,

and

it

slewed

forward,

catching

the

plaintiff's

ankle

and causing him serious injures.

 
 

Three

vehicles were in regular use at the

fire station,

a pump-

escape carriage of the jack,

and

a water

tender,

which

were both

unsuitable

for

and an Austin tender which was used

as

the

an

emergency

tender

and

which

was

properly

equipped

for

the

carriage of the

jack,

and

in

which

it could

be properly

secured.

The Austin

tender

was

put

to

other

uses

and

was

out

of

the

836

THE

WEEKLY

LAW

EEP0ET8

MAY 28,

1954

C.

A.

station

and

not

available

for

the

carriage

of

the

jack

during

1954

about

30 hours in

the week;

at

the time

that

the emergency

call

was received it was not in the station. The Fordson lorry on

WATT

  • v. which the jack was carried on July 27, 1951, was not one of the

  • HERTFORD- regular vehicles used by the fire authority at the Watford station,

SHIRE

COUNTY

COUNCIL.

but

had

been

lent

to

the

station

for

the

transport

of

training

equipment only a few days before the plaintiff's accident.

Emer-

gency

calls other

than fire

calls were fairly

frequent

at

the fire

station,

but

it

was rare for the heavy jack to be required,

and in

the normal course, if the jack was required when the Austin

tender

was not

available to carry

it,

another

station would

be

notified and would answer the call.

On the occasion in question

it would have

taken at least ten minutes for assistance to arrive

from the nearest fire station.

 
 

The

plaintiff

claimed

that

the

defendants,

his

employers,

were negligent in that they

(a) failed

to load

or secure the

jack

in such

a way that it could not become dislodged;

(b) loaded

the

jack

in

such

a

way

that

they

knew

or ought

to

have

known

it

was

likely

that

if

the

lorry

pulled

up

suddenly

the

jack

would become dislodged and cause injuries to any person riding

on the back of the lorry; (c) permitted and/or caused

the

plaintiff

to

ride

on

the

back

of

the

lorry

on

to

which

the

jack

had been loaded;

(d) caused or permitted

the

jack

to

be trans-

ported

on

 

the

lorry

which,

as

the

defendants

knew

or

ought

to

have

known,

was

not

provided

with

clips,

straps,

or

other

suitable

means

to

secure

it;

(e) failed

to provide

any

or any

adequate

supervision

of

the loading

of the

jack

on

to

the

lorry;

and it was claimed

that the plaintiff's accident was due to negli-

gence and

that

he was entitled

to recover damages against

the

defendants.

 
 

Barry

J.,

on December

16, 1953, gave judgment

in

favour

of the defendants, holding that it was not shown that they had

been guilty of any negligence towards the plaintiff or towards their other employees.

G.

G. Baiter

Q.G. and

H.

B.

Grant for the

plaintiff.

Lord Hailsham

Q.C. and Roland Brown

for the

defendants.

The cases referred to in argument are cited in the judgment of

Singleton

L.J.

 

SINGLETON

L.J.

stated

the

facts,

and

continued:

I

am

in

complete

agreement

with

the judgment

of

Barry

J. 1

but

it is

right

that

I

should

state

my

reasons

for

having formed

that

opinion.

The

fire

service is

a service which

must

always involve risk

for those who are employed in it, and, as Mr. Baker on behalf

of the plaintiff

pointed out, they are entitled to expect that their

 

i

[1954] 1 W.L.E. 208;

[1954J

1 All

E.B. 141.

[1954] 1 W.L.E.

887

equipment

shall

be

as good as reasonable

care can secure.

An

C.

A.

emergency arose, as often happens.

The sub-officer who had

 

1954

 

given the order, was asked in re-examination: '' From your point

 

"

of

view

you thought

it

was

a piece

of luck,

with this

unfor-

WATT

v.

 

" tunate

woman under the bus, that

the Fordson was available

HBHTFOUD-

" and you could use it? (A.) Yes. It is recognized in the

service that

we use our initiative

at

all times,

and

in doing

so

 

SHIRB

 

"

.

COUNTY

COUNCIL.

" any reasonable step you take is considered satisfactory

if

it

IS

Singleton

L.J.

" a question of saving life.

You have to make a sudden decision."

 

It

is not alleged that

there was negligence on the part of

any

particular individual, nor that the driver was negligent in driving

 

too fast, nor that the sub-officer was negligent in giving the order

which he did.

The case put forward

in this court

is that

as

the

defendants

had a jack,

it was their

duty

to have a vehicle

fitted

in all respects to carry that jack, from which it follows, I suppose,

 

that

it

is

said

that

there must

be

a vehicle kept

at

the

station

at.all times, or that

if there

is

not

one the lifting jack must

not

be taken out; indeed,

Mr.

Baker

claimed that

in

the

case

of

a

happening

such as this,

if

there was not

a vehicle fitted

to carry

 

the

jack

the

sub-officer

ought

to

have

telephoned

to

the

fire

station

at

St. Albans and arranged that

they

should

attend

to

the emergency. St. Albans is some seven miles away, and it

 

was said

that

an extra

ten minutes

or

so would

have

elapsed if

that had been done. I cannot think that that is the right way

to approach the matter.

There was a real emergency; the woman

was under a heavy vehicle; these men in the fire service thought

that

they ought to go promptly

and

to take

a lifting

jack, and

they

did

so.

Most

unfortunately

this accident

happened.

What

is

the

duty

owed by employers?

It

has been

stated

often,

and never more clearly

than it was by Lord Herschell

in

Smith

v. Baker & Sons, 2

in these words:

"

It

is quite clear

that

" the contract between employer and employed involves on the " part of the former the duty of taking reasonable care to provide " proper appliances, and to maintain them in a proper condition,

"

and

so

to

carry

on

his

operations

as

not

to

subject

those

" employed by him to unnecessary risk."

 
 

The

employee in this case was a member

of the fire service,

who always undertake some risk—but, said Mr. Baker, not this

risk.

Is

it

to

be

said

that

if an emergency

call reaches

a

fire

station the

one in charge

has

to ponder

on the matter

in

this

way:

" Must

I

send

out my

men with the lifting

jack in

these

" circumstances, or must I telephone to St. Albans, seven miles "

away, to ask them to undertake the task? "

I suppose he must

think

about

his

duty;

but

what

would

a reasonable

man

do,

faced

as

he

station

have

officer

did?

was?

Would

the reasonably

careful

head

of

the

done

anything

other

than

I think

not.

Can

it

be said,

that

which

then,

that

the

there

sub-

is

a

duty

on the

employers here to have a vehicle built

and

fitted to

2 [1891]

A.C. 325, 362;

7 T.L.E.

679.

  • 838 THE

WEEKLY

LAW

KEPOETS

 

MAY 28,

1954

C.

A.

carry this jack

at

all times,

or

if

they

have not,

not

to

use

the

1954

jack

for

a

short journey of 200 or 300 yards ?

I

do not think

that

that

will do.

WATT

 

Asquith L.J.,

in Daborn v.

Bath

Tramways

 

Ld.,

u.

Motor Co.

HERTFORD-

 

said 3 :

"I n

determining

whether

a

party

is

negligent,

the

SHIRE

COUNTY

" standard

of

reasonable

care

is

that

which

is

reasonably

to

COUNCIL.

A relevant

 

circumstance

Singleton L.J.

" be demanded in the circumstances. "

to

take into

account

may

be the importance

of the

end

to

be

"

served by behaving in this way or in that.

As has often

been

 

" pointed

out,

if

all

the

trains

in

this

country

were

restricted

 

"

to a speed of five miles an hour, there would be fewer accidents,

"

but

our national life would be intolerably slowed down.

The

" purpose

to

be

served,

if

sufficiently

important,

 

justifies

the

" assumption of abnormal

risk."

 
 

The purpose to be served

in this

case was the

saving of

life.

 

The men were prepared

to take

that risk.

 

They were not,

in

 

my

view,

called

on

to

take

any

risk

other

than

that

which

normally

might

be

encountered

in

this

service.

I

agree

with

Barry

J.

that

on

the

whole

of

the

evidence

it

would

not

be

right

to find

that

the employers were guilty of any failure

of the

duty

which

they

owed to

their

workmen.

In

my

opinion

the

 

appeal should be dismissed.

 
 

DENNING

L.J.

It

is well settled

that in measuring due care

you

must

balance

the

risk

against

the

measures

 

necessary

to

 

eliminate the risk.

To that proposition there ought to be added

 

this:

you must balance the risk

against the

end

to

be

achieved.

 

If this accident had occurred in a commercial enterprise without

any emergency

there could

be

no doubt

that

the servant

would

 

succeed.

But the commercial end to make profit is very different

 

from the human end to save life or limb.

The

saving of life

or

limb justifies

taking

considerable

risk,

and

 

I

am

glad

to

say

that there have never been wanting in this country men of

courage ready to take those risks, notably

in

the

fire service.

 
 

In

this

case the

risk

involved

in

sending out

the

lorry

was

not

so great

as

to

prohibit

the

attempt

to

save life.

 

I

quite

 

agree that fire engines, ambulances and doctors' cars should not

shoot past the traffic

lights when they

show

 

a

red

light.

That

is because the

risk

is

too great

to warrant the incurring of

the

 

danger.

It

is always

a question

of

balancing the risk

against

the end.

I

agree that this appeal should be dismissed.

MORRIS

L.J.

I

also agree.

The accident in this case came

about

as

a

result

of

a

somewhat

unusual concatenation of

 

circumstances.

There had for

a very

long time

been no call

for

 

the

use

of

the

jack.

Any such call, according to the evidence,

 

was extremely rare.

It

so happened that

a

call

came

at

a time

when the Austin vehicle which would normally have carried the

» [1946]

2 All

E.E.

333, 336.

 

[1954]

1

W.L.E.

 

jack was otherwise engaged.

I

do not think it

can be said to have

been unreasonable to have had

the Austin vehicle for

use in

the

 

way that was arranged.

Had

the station been

a larger

station,

had there been unlimited resources, unlimited

space

and

an

 

unlimited

number

of

vehicles,

 

it

might

be

that

another

fitted

vehicle would have been available; but that was not reasonably

.practicable or possible.

What happened was that when the call

for the jack came the sub-officer

had to decide what

to do,

and

I

839

C.

A.

]954

WATT

v.

HERTFORD-

SHIRE

CODNTY

COUNCIL.

Morris L.J.

do not think that it would have been in accordance with the

traditions of the wonderful service with which we are concerned

if he had said that he could do nothing other than call on St.

Albans.

What

he

decided

to

do

was

in

accordance

with

the

practice of the fire service.

 
 

I

would refer

also

to

what

the assistant

chief

officer

in

the

London Fire Brigade said in regard to this matter.

 

He

spoke

about the provision of jacks, and pointed out that in London there

are

29

sets

of

lifting

gear,

one being provided for every

two

stations, and then this passage occurs: " Can you always under-

"

take

that

that

one vehicle will be available

for

the

transport

"of a jack? (A.) No. (Q.) In your view is it reasonably

" practicable

for

a fire service

to

adapt

all

of

its

vehicles for

the

'' transport of jacks?

(A.) No,

I

would not

think

it was reason-

"

able.

(Q.)

You have been

a station

officer,

have you not?

"

(A.)

I

have.

(Q.) Supposing you found yourself in charge of a

" station,

and

supposing the equipment

available was not

that

"

most

suitable for the purpose,

but you found

that human

life

"

was in danger and you might

save it by adopting a method

not

" entirely suitable, what,

in your view, would

be your duty

as a

" station officer?

(A.)

I

have had

that

experience,

and

I

did

" not hesitate to get the equipment there as quickly as possible."

As

I

have said,

I think this sub-officer

acted in accordance

with the traditions of the service, and I cannot for one moment

think that the employers can be held responsible as having failed

in the performance of their duties.

I agree that

the appeal fails.

Appeal

dismissed.

Leave

to appeal

to

the

House

of Lords

refused.

Solicitors:

Berrymans.

Denis

Hayes

for

F.

S.

Ellis

&

Co.,

Watford;

M.

M.

H.