B e f o r e :
LORD JUSTICE HARMAN
LORD JUSTICE SACHS
and
LORD JUSTICE WIDGERY
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MICHAEL ALLAN SALSBURY
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-v-
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G.L.C. WOODLAND (Male)
and
TERENCE CUOMBE
and
IAN BERRESFORD WAUGH
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(Transcript of the Shorthand Notes of The Association of Official Shorthandwriters, Ltd.,
Room 392,
Royal Courts of Justice, and 2 New Square, Lincoln's Inn, London, W.C.2)
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Mr. JOHN DAVIES, Q.C., Mr. J.G. LEACH and Mr. J. MARSHALL(instructed by Messrs. Donald, Darlington & Nice) appeared on behalf of the Appellant the First Defendant.
Mr. JAMES FOX-ANDREWS, Q.C. and Mr. JOHN EDWARDS (instructed by Messrs. Gardiner & Co.) appeared on behalf of the Appellant the Third Defendant.
Mr. RODNEY BAX, Q.C. and Mr. S.J. WALDMAN (instructed by Mr. W.H. Thompson) appeared on behalf of the Respondent-Plaintiff.
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HTML VERSION OF JUDGMENT
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Crown Copyright ©
LORD JUSTICE HARMAN: I will ask Lord Justice Widgery to give the first judgment.
LORD JUSTICE WIDGERY: This is an appeal from a judgment of Mr, Justice Paull given on the 1st July, 1968, whereby he awarded to the plaintiff, Mr. Michael Salsbury, damages totalling &6,500 against all three defendants, in respect of personal injury which Mr. Salsbury, the plaintiff, had suffered in somewhat remarkable circumstances. The accident to the plaintiff occurred on the 5th July, 1963, in a road called Dome Hill, at Caterham, in Surrey. The first defendant, Mr. Woodland, had recently bought a house, No. 11 Dome Hill, but had not at this point moved into occupation of it. The garden was somewhat overgrown and it is evident that Mr. Woodland and his wife were minded to have the garden tidied up before they went in. Amongst other duties to be done was the felling of a large hawthorn tree which stood in the front garden and had grown to a height of some 25 feet or more. An agreed plan shows the location of the hawthorn tree; and the following dimensions are perhaps of some consequence. The distance from the public footpath back to the nearest portion of the house was some 40 ft. 7 ins. The hawthorn tree stood at the side of the drive 12 ft. 7 ins. from the house and 28 feet from the road. Running diagonally across the garden was a telephone wire (it was in fact a pair of telephone wires in those days) serving the house. These wires were attached to a telegraph pole on the side of Dome Hill remote from the house and ran across, unsupported, until they reached the eaves of the house at the western end -that is to say the end of the house on the left-hand side of the plan. They were there attached to insulators and they eame down to the instrument in the house. The height of the tree was such that if it was allowed to fall in the direction in which the telephone wires ran one or more of its branches would foul the telephone line. Mr. Woodland appreciated that the felling of this tree was not a job for an amateur like himself, and his wife was considering how expert assistance might be acquired. Some days before the 5th July she had seen in an adjacent road a party of men felling trees. She asked the foreman whether one of his men would come and take down this hawthorn tree for her. The foreman said that he would enquire and next day told Mrs. Woodland that Mr. Coombe (the second defendant) was prepared to do this work. Mrs. Woodland, quite properly, accepted Mr. Coombe as a man of competence and experience appropriate for the job.
To cut the story to its briefest terms, Mr. Coombe reached the stage of felling this tree on the evening of the 5th July at about 5 p.m. He had been told that no stump was to be left. That involved bringing up the roots as well. Having lopped the tree to some extent but not so as significantly to affect its total height, he then dug a trench round the bole of the tree, severed some of the roots, and proceeded by means of a tractor to push and pull the tree with a view to loosening it and causing it to fall.
He was being watched with interest and some apprehension by-Mrs. Woodland, who feared that the tree might damage the house. He was also being watched out of curiosity by a Mr. Sherwood, aged 21, the son of the house next door, No. 13 Dome Hill, and the plaintiff, who was also aged 21, and who was a friend of Mr. Sherwood's and had happened to call at this time.
Mr. Coombe proceeded with his operation, and eventually the tree came down. It seems clear that his method of removing the stump was one which gave him no real control over the direction in which the tree should fall, and as luck would have it it fell towards the telephone wires, and at least one long branch, not less than 25 feet in length, fouled the telephone wires and broke them. One wire was severed at the eaves of the house itself; the other was severed some 18 feet away from the terminal point on the eaves. Both wires remained attached to the top of the telephone pole on the remote side of the road, and the wires thus described a kind of parabola across the road: one wire came down almost vertically and then, as it was said, "snaked" across the road, in the manner which was described, touching the road from point to point: the other wire came down in a large, flatter curve, so that in the centre of the carriageway it was 2 feet above the level of the carriageway.
The plaintiff and Mr. Sherwood, observing that this had happened, decided that something must be done. Their plan seems to have been that Mr. Sherwood would go back into his house and telephone the G.P.O. and the plaintiff would coil up the broken wires and remove the hazard on the highway which they could create. Unfortunately, before the plaintiff had any opportunity to begin to coil the wires at all, a motor-car appeared from the direction of Caterham, driven by Mr. Waugh, the third defendant. This was a Mini car, which was being driven up the road at a speed found by the judge to have been 45 to 50 miles an hour, and accelerating. The speed was criticised in the course of the trial, but the judge found, and I have no doubt rightly, that in the circumstances 45 to 50 miles an hour was not an unreasonable speed.
The plaintiff appreciated that the car might come into collision with the wires across the road. His immediate reaction was to signal the driver to slow down, but it was too late to do that, and the plaintiff realised - in a manner which is not criticised in the judgment - that a collision between the car and the wires was inevitable and that the result upon the wires might be injurious to him because they were close to him, and their behaviour after the collision was no doubt unpredictable. Just at about the time the car struck the wires, the plaintiff, for his own safety, fell face downwards on the grass verge. He seems to have used his hands to break his fall. For a man of 21 to fall in that way upon a grass verge is not an incident likely to give rise to any injury, but unfortunately a further coincidence is that Mr. Salsbury had a defect in his back. The details of this defect were fully investigated at the trial and I find it unnecessary to go into them now. Putting it in simple, layman's terms, he had in his spine what is called an angioma, which I gather is a kind of small tumour. The effect of this relatively unathletic exercise of falling on his face clearly disturbed the angioma, causing it to bleed, and the result of this upon the adjacent spinal cord was to give the plaintiff within two or three days all the symptoms of paraplegia: in other words, both legs went numb below the waist and at one time it looked as though very grave injury had been caused. Happily things did not turn out as badly as that; the plaintiff achieved a measure of recovery; but the extent of his resultant permanent injury is measured by the fact that the learned judge thought it right to award him ^5,000 for general damages.
At the trial, as is understandable, many difficult questions of causation and foreseeability were considered. The case against the three defendants, in a nutshell, was this. It was said that Mr. Coombe, the tree-feller, had been negligent in felling the tree and that that negligence was the cause of foreseeable injury to the plaintiff. It was said, and was found by the learned judge, that the first defendant, Mr. Woodland, was liable for that injury because in the circumstances of this case the judge held that he was liable for the negligence of Mr. Coombe. Thirdly, it was said that the third defendant, Mr.Waugh, was negligent in that when driving up the road he either saw the telephone wires and failed to take evasive action or alternatively was negligent in that he ought to have seen the telephone wires and ought again to have taken evasive action but failed to do so.
Any question of causation resulting from the negligence of Mr. Waugh is a matter which does not arise in this appeal and I am therefore spared the necessity of going into it in any detail. So far as Mr. Coombe is concerned, judgment was obtained against him, I think in default of defence. No issue of his liability was raised here. The appeals of the first and third defendants respectively raise quite different questions and therefore they can conveniently be dealt with separately.
So far as Mr. Woodland, the first defendant, is concerned, he personally committed no negligent act, and it is not challenged that in selecting Mr. Coombe as the means of having this tree felled he selected a person who was apparently competent and fit to do it. The whole basis of the case against Mr. Woodland is that Mr. Coombe was negligent and that Mr. Woodland is responsible for that negligence. Mr. Davies, appearing for the first defendant, was prepared to challenge the judge's finding of negligence on the part of Mr. Coombe, and was prepared to challenge the difficult questions of causation which arose in the course of that issue, but, the Court having concluded that the first defendant's appeal succeeded on a different ground, I need not go into those matters now. The basis of the decision of this Court (which has already been indicated to the parties) on the liability of the first defendant is simply that the first defendant was not responsible for the negligence of Mr. Coombe even if Mr. Coombe was negligent; and it is t& that matter only that I need now direct myself.
It is, of course, trite law that an employer who employs an independent contractor is not vicariously responsible for the negligence of that contractor. He is not able to control the way in which the independent contractor does the work and the vicarious obligation of a master for the negligence of his servant does not arise under the relationship of employer and independent contractor. I think it is entirely accepted that those cases - and there are some - in which an employer has been held liable for injury done by the negligence of an independent contractor are in truth cases where the employer owes a direct duty to the person injured, a duty which he cannot delegate to the contractor on his behalf* The whole question in this case is whether, in the circumstances which I have briefly outlined, the first defendant is to be judged by the general rule, which would result in no liability, or whether he comes within one of the somewhat special exceptions - cases in which a direct duty to see that care is taken rests upon the employer throughout the operation.
This is clear from authority; and for convenience I take from Salmond on Torts, 14th Edition, at page 687, this statement of principle:
"One thing can, however, be said with confidence: the mere fact that the work entrusted to the contractor is of a character which may cause damage to others unless precautions are taken is not sufficient to impose liability on the employer. There are few operations entrusted to an agent which are not capable, if due precautions are not observed, of being sources of danger and mischief to others; and if the principal was responsible for this reason alone, the distinction between servants and independent contractors would be practically eliminated from the law".
I am satisfied that that statement is supported by authority and I adopt it for the purposes of this judgment.
One can compare at once that statement with the statement of principle upon which the learned judge himself relied. At page 22 of his judgment, having referred to some of the considerations to which I have myself already referred, he said this:
"The principal, unlike the employer, is not liable for incidental acts of negligence during the work; for instance, dropping a hammer on someone's head; but he is liable if the very act he orders to be done contains in it a risk of injury to others, and someone is injured as a result of the contractor's negligence as a consequence of that risk. In this case" — he means the instant case —
"there can be no doubt that there was an inherent risk of injury to others when the tree was felled unless proper care was taken to get rid of the risk".
I make two observations upon those words of the learned judge. First of all, the evidence makes it perfectly clear that this tree could be felled by a competent man, using proper care, without any risk of injury to anyone. The undisputed evidence of an expert was that the proper way to fell this tree, in its confined situation, was to lop the branches respectively until there was left a stump of only 8 to 10 feet in height. All that could be done without any danger to anyone, if at any rate all appropriate precautions were taken, and the resultant stump 8 to 10 feet high could then have been winched out of the ground, again without risk to anyone. So when the learned judge refers to this being an operation in which "there was an inherent risk", in my respectful view he is putting the matter too high. If he meant that there was a risk which even due care could not avoid he was, in my judgment, quite wrong upon the undisputed evidence that was before him.
Secondly, I would venture to criticise the statement of principle which the learned judge has applied as being too wide. Taken literally, it would mean that the fare who hired a taxicab to drive him down the Strand would be responsible for negligence of the driver en route, because the negligence would be negligence in the very thing which the contractor had been employed to do. No one is disposed to suggest that the liability of the employer is that high; and although the learned judge reinforced himself by certain observations of Lord Justice Romer in Penny V. Wimbledon Urban District Council (1899 2 Queen's Bench, at page 78), in my opinion the test which he applied was far too stringent.
In truth, according to the authorities there are a number of well-determined classes of case in which this direct and primary duty upon an employer to see that care is taken exists. Two such classes are directly relevant for consideration in this case. The first class concerns what have sometimes been described as "extra hazardous acts" — acts commissioned by an employer which are so hazardous in their character that the law has thought it proper to impose this direct obligation on the employer to see that care is taken. An example of such a case is Honeywill & Stein Ltd. v. Larkin Bros., reported in 1934 1 King's Bench at page 191. Other cases which one finds in the books are cases where the activity commissioned by the employer is the keeping of dangerous things, within the rule in Rylands v. Fletcher, and where liability is not dependent on negligence at all.
I do not propose to add to the wealth of authority on this topic by attempting further to define the meaning of "extra hazardous acts"; but I am confident that the act commissioned in the present case cannot come within that category. The act commissioned in the present case, if done with ordinary elementary caution by skilled men, presented no hazard to anyone at all.
The second class of case which is relevant for consideration of the present dispute concerns dangers created in a highway. There are a number of cases on this branch of the law, a good example of which is Holliday v. National Telephone Company (1899 2 Queen's Bench, page 392). These, on analysis, will all be found to be cases where work was being done in a highway and was work of a character which would have been a nuisance unless authorised by statute. It will be found in all these cases that the statutory powers under which the employer commissioned the work were statutory powers which left upon the employer a duty to see that due care was taken in the carrying out of the work, for the protection of those who passed on the highway. In accordance with principle, an employer subject to such a direct and personal duty cannot excuse himself if things go wrong merely because the direct cause of the injury was the act of the independent contractor.
This again is not a case in that class. It is not a case in that class because in the instant case no question of doing work in the highway, which might amount to a nuisance if due care was not taken, arises. In my judgment, the present case is clearly outside the well-defined limit of the second class to which I have referred. Mr. Bax accordingly invited us to say that there is a third class into which the instant case precisely falls and he suggested that the third class comprised those cases where an employer commissions work to be done near a highway in circumstances in which, if due care is not taken, injury to passers-by on the highway may be caused. If that be a third class of case to which the principle of liability of the employer applies, no doubt the present facts would come within the description. The question is, is there such a third class?
Reliance is placed primarily on three authorities. The first is Holliday's case, to which I have already referred. Holliday's case was a case of work being done in a highway by undertakers laying telephone wires. The injury was caused by the negligent act of a servant of the independent contractor who was soldering joints in the telephone wires. The cause of the injury was the immersion of a defective blow-lamp in a pot of solder, and the pot of solder was physically upon the highway -according to the report, on the footpath. Lord Halsbury, holding the employers responsible for that negligence, in my view, on a simple application of the cases applicable to highway nuisance to which I have already referred, put his opinion in these words at page 399:
"Therefore, works were being executed in proximity to a highway, in which in the ordinary course of things an explosion might take place".
Mr. Bax draws our attention to the phrase "in proximity to a highway" and submits that that supports his contention on this point. I am not impressed by this argument, because the source of danger in Holliday's case was itself on the highway and also because I do not think it follows (although one need not decide the point to-day) that in the true highway cases to which I have referred the actual source of injury must arise on the highway itself. Mr. Bax said that in Holliday it would have been ridiculous if there had been liability because the pot of solder was on the highway but no liability if it was 2 feet off the highway. That is an observation with which I entirely sympathise; but I can find nothing in Lord Halsbury's use of the word "proximity" to justify the view that there is therefore a special class of case on the lines submitted by counsel.
The second case relied upon is Tarry v. Ashton, which is reported in 1875 1 Queen's Bench at page 314. This was a case where a building adjoining the highway had attached to it a heavy lamp which was suspended over the footway and which was liable to be a source of injury to passers-by if allowed to fall into disrepair. It fell into disrepair, and injury was caused. The defendant sought to excuse himself by saying that he had employed a competent independent contractor to put the lamp into good repair and that the cause of the injury was the fault of the independent contractor. Mr.Bax argues that that case illustrates the special sympathy with which the law regards passers-by on the highway. He says this demonstrates that the law has always been inclined to give special protection to persons in that category and so supports his argument that any action adjacent to the highway may be subject to special rights. But in my judgment that is not so. Tarry v. Ashton seems to me to be a perfectly ordinary and straightforward example of a case where the employer was under a positive and continuing duty to see that the lamp was kept in repair. That duty was imposed upon him before the contractor came and after the contractor had gone; and on the principle that such a duty cannot be delegated the responsibility of the employer in that case seems to me to be fully demonstrated. I cannot find that it produces on a side-wind, as it were, anything in support of Mr. Bax's contention.
The last case to which I will refer on this point is Walsh v. Hoist & Co. Ltd., reported in 1958 1 Weekly Law Reports at page 800, a decision of this Court. In that case the occupier of premises adjoining the highway was carrying out works of reconstruction which involved knocking out large areas of the front wall. He employed for this purpose a contractor, and the contractor employed a sub-contractor. It was obvious to all, no doubt, that such an operation was liable to cause injury to passers-by by falling bricks unless special precautions against that eventuality were taken. Indeed very considerable precautions were so taken. However, on a day when the only workman employed was an employee of the sub-contractor one brick escaped the protective net, fell in the street and injured a passer-by. The passer-by-plaintiff brought his action against the occupier, the contractor, and the sub-contractor, relying on the doctrine of res ipsa loquitur. In my judgment, the only thing that was really decided by that case was that on those facts the precautions which had been taken against such an injury rebutted the presumption of negligence which might otherwise have arisen under the doctrine of res ipsa loquitur. No attempt appears to have been made in argument to distinguish the liability of the occupier as compared with that of the contractor or sub-contractor, and it certainly was not material to the decision. But Mr. Bax relies upon it for dicta which unquestionably are helpful to him. He refers first to the judgment of Lord Justice Hodson (as he then was), who, having stated the doctrine of res ipsa loquitur, goes on to deal with the relevant positions of the parties. He says:
"So far as the Board is concerned" — the Board were the occupiers — "the law as stated by Lord Justice Romer in Penny v. Wimbledon Urban District Council is applicable":
and he gives the quotation:
"'When a person, through a contractor, does work which from its nature is likely to cause danger to others, there is a duty on his part to take all reasonable precautions against such danger, and he does not escape from liability for the discharge of that duty by employing the contractor if the latter does not take these precautions'".
Then Lord Justice Hodson observes that no question of collateral negligence arose in the instant case and accepts the proposition, without further enquiry, that if negligence were established each of the defendants would be liable.
Lord Justice Sellers touched on the same point. At page 812 he said this:
"As the Electricity Board had authorised work to be done adjoining the highway which might without due precautions cause injury to anyone on the highway, the authorities already cited by my Lords show that the Board would be liable for the negligence of the contractors or sub-contractors in failing to take due precautions. Likewise, the contractors would be liable for any negligence in the performance of their duties delegated to sub-contractors".
Mr. Bax says, with force, that if that be the law then he needs no more in this case. But in my judgment, having considered this matter with such care as I can, I can find nothing in the authorities to which Lord Justice Sellers refers which justifies a conclusion in the terms which he uses; and, as I have already said, this decision was obiter because the case turned on the absence of negligence and not upon any nice question of which of the defendants might have been liable if negligence had been proved.
Accordingly, in my judgment, there is no third class of cases of the kind put forward by Mr. Bax; and it was for those reasons that I concurred in the Court's decision, already announced, that the appeal of the first defendant should be allowed and the judgment against him set aside.
I turn now to the position of the third defendant. It was submitted before the learned judge that the negligence of the third defendant consisted in his driving up to the wires which were draped across the road and failing to stop or slow down when he either had seen them or should have seen them. The vital question, in my judgment, was whether it was right to say that he ought to have seen them — whether any careful motorist in his position would see them.
To assist the learned judge in reaching a conclusion he had a plan of the road and he had some very good photographs, particularly those numbered "6" in the bundle before this Court, which show the nature of the road most vividly and show amongst other things that the surface was of untreated concrete and therefore light in colour. The photographs also show that the area is a wooded area and that the sides of the road are heavily wooded right up to the footpath. In addition, albeit at a rather late stage of the trial, the learned judge was shown a sample of the wire in question; and of course he had had a full description in the evidence of how the wires were draped across the road. It was really, as I see it, for him to conclude from those factors whether he could say that any careful motorist would have seen the wires in time to slow up and avoid an accident.
As regards oral evidence on this issue, namely, whether the wires were capable of being seen by a careful motorist, a number of witnesses were asked for their views upon the matter; but I find the result quite inconclusive. The third defendant's case was that he knew nothing about the accident at all, and naturally he was not able to give any evidence as to whether he could have seen the wires. Questions were put to him on a hypothetical basis and he was asked whether he thought he would have seen the wires; but I find his answers of no value at all - and so indeed did the learned judge. Equally, Mr. Sherwood and the plaintiff were asked whether they thought the motorist ought to have been able to see the wires, and they gave (as is to be expected) cautious answers, sometimes saying they thought perhaps he would and sometimes they thought perhaps he would not. Nothing turns on that, in my judgment, because in the end the learned judge had to decide for himself whether he thought, having seen the wire and having had the locus described to him, the wire ought to have been seen by the motorist. It is quite clear that in the early part of the trial the judge was inclined to think that the wire could be seen; but when the specimen of wire was put before him the transcript makes it clear that he had considerable doubts on the subject, and I understand the doubts, because when one looks at the wire at close hand it is of very narrow gauge and I fully appreciate the impression which was made on the learned judge when he saw it.
The learned judge then canvassed the possibility of having a view. At one time he thought that he might be helped if he had a view and if wires of similar gauge were draped across the road. There was a somewhat inconclusive exchange between judge and counsel as to the possibility of arranging such a view. In the end the matter seems to have been left, when the judge reserved judgment, that if he wanted a view with a demonstration of the wire he would ask for it; and then, almost as an afterthought, in the last sentence that he uttered he said that perhaps he would have a look at the place himself. In fact he did: he went down in his car, he tells us in his judgment, and saw the scene from the viewpoint of the third defendant. No attempt was made to arrange a demonstration with wires draped on the road, but the judge was able to see a pair of telephone wires of the appropriate kind which still ran from the telephone post to No. 15 Dome Hill.
The view made a considerable impression on the judge. At page 4 of his judgment, at letter "B", he said:
"I want to say that I have been to the site in my car without any representative of any of the parties being present, approaching the house from the same direction as the third defendant was approaching it at the time of the accident. I bring this fact in at this stage in my judgment as I must confess it somewhat altered my conception as to the garden in which the hawthorn tree grew";
and then he went on to deal with the evidence of the dimensions of the garden. It is quite evident that those dimensions which had been put before him in evidence had not given him the same picture of the relevant positions of the tree and the telephone wires which his eye gave him when he went to see the site.
But more important is his conclusion about what the third defendant could have seen, and for this purpose one must go to page 31.
"The actual telephone wire was not produced until nearly the end of the case. Various witnesses had given evidence as to whether they thought the actual wire ought to have been seen; this was before the wire was produced. Although I allowed such evidence to be given, I confess I did not pay much attention to what others thought; I essentially had to make up my own mind on the matter. When the wire was produced it was certainly a great deal thinner than I had expected and I began to wonder very seriously whether wire of that thickness could reasonably be seen, when draped across the road, in sufficient time to slow down or stop even although there were two wires in the positions I have indicated. So much in a case of this sort depends on such factors as the nature of the surroundings and the colour of the road itself. It was because of this that I finally determined that I ought to accept the invitation to see the road for myself. Having seen the road, the surroundings, and the telephone wires of exactly the same type stretching across the particular highway from the pole to house No. 15, I feel I am in a better position than I was to make up my mind on that point".
He then goes on to point out that he realised that the lighting and cloud-cover might have been different upon the day of the accident; and his conclusions are contained in the last paragraph on page 32. He said:
"I should make it clear that before I myself saw the scene I was inclined to think that a reasonable driver driving at a reasonable speed might not have seen the wire at all until at any rate he was too near to pull up. I am satisfied, having seen the scene, that the moment the plaintiff saw him accelerating in such a way that he realised there would be danger from the whipping of the wire Mr. Waugh ought already to have seen, even if he had not actually seen, the wire and to have taken steps to make it apparent that he was slowing down to the point where there was no danger from the wire".
It is crystal-clear that the learned judge's conclusions on this question of negligence were largely dependent upon the impression which his view had made upon him. In those circumstances Mr. Fox-Andrews, for the third defendant, submits that the judgment against his client should be set aside, for two main reasons. First he contends that the view was an irregular view, that it vitiates the judgment, and that this Court should order a new trial accordingly. Alternatively he submits that even if the view is regarded by this Court as regular, yet on the evidence as a whole, including the view, a judgment in favour of the third defendant should have been entered.
I take those two points individually. As regards the judge's power to have a view, there is authority for this in Order 35 rule 8 (1) of the Rules of the Supreme Court, which reads:
"The judge by whom any cause or matter is tried may inspect any place or thing with respect to which any question arises in the cause or matter".
The rule is in those general terms.
The circumstances in which a view should be held are the subject of directions in a case called Goold v. Evans & Co., a decision of this Court, which is reported in 1951 2 .Times Law Reports at page 1189. I refer to the judgment of Lord Justice Denning (as he then was) at page 1191, which is in these terms:
"It is a fundamental principle of our law that a judge must act on the evidence before him and not on outside information; and, further, the evidence on which he acts must be given in the presence of both parties, or, at any rate, each party must be given an opportunity of being present. Speaking for myself, I think that a view is part of the evidence, just as much as an exhibit. It is real evidence. The tribunal sees the real thing instead of having a drawing or a photograph of it. But, even if a view is not evidence, the same principles apply. The judge must make his view in the presence of both parties, or, at any rate, each party must be given an opportunity of being present. The only exception is when a judge goes by himself to see some public place, such as the site of a road accident, with neither party present".
I respectfully adopt those observations as being the correct approach to this question. I would also say in general that a view is something which should be conducted by the judge by appointment, in the presence of representatives of both sides. However, the expression "view" is used indifferently to describe two very different things. Sometimes it refers to what Lord Denning speaks of as a judge going to see some public place, where all that is involved is the presence of the judge using his eyes to see in three dimensions and true colour something which had previously been represented to him in plan and photograph. The other way in which the word "view" is frequently used is to describe some kind of demonstration in which the events of the accident are reconstructed or simulated; and in my judgment it would be exceedingly dangerous for a judge to attend anything which could be described as a demonstration except in strict accordance with the principles laid down by Lord Justice Denning - in the presence of representatives of both sides. Different considerations apply to a "view" in the true meaning of the word, where all that is required is that the judge should go to the place to see what it looks like, he having been already given in evidence the available assistance in the form of photographs and a plan, which all judges are given. A view of that kind is constantly held by a judge by himself without reference to parties at all. It is a commonplace for a judge on Circuit to find it convenient to see the locus of a road accident in respect of which he is trying a case at the Assizes; and it appears from the decision in Hare v. British Transport Commission (1956 1 Weekly Law Reports page 250) that no less an authority than Lord Goddard, when Chief Justice, had an unaccompanied view of platform 13 at Euston Station, and he clearly thought there was nothing wrong or irregular in what he was doing. In my judgment, a judge who intends to have a "private" view, if one may so describe it, is well advised to tell the parties he is going to do so. This enables them to warn him if there has been some change in the local surroundings which might otherwise mislead him. If he chooses to go by himself and in fact is not subject, through any cause, to being misled by a change in surroundings, I can see nothing wrong in it, and indeed I would think it regrettable if this important facility were withdrawn from a judge in appropriate cases.
I have been troubled in the present case as to whether there was not something special here, because for some time I was disturbed that the judge should have reached such a conclusive decision in his mind as a result of the view. I thought at one time that he must have seen something which we do not know about and which may have influenced his mind. But in the end, having considered it carefully, I have come to the conclusion that this is an ordinary case and that the mere fact that the view was helpful to the judge is not a reason for saying it was irregular. I have come to the conclusion that this is an ordinary case in which the judge was helped by the view, that it did cure some misconception which his mental picture of the locus had conjured up, and I see nothing wrong with it. So much for that point.
Finally, there is the question of whether the judgment ought nevertheless to be set aside as being against the weight of evidence. Here, speaking for myself, my mind has worked along much the same lines as the learned judge. When I looked at the specimen of wire and tried to visualise the third defendant driving down this road at 45 to 50 miles an hour, I found it very difficult to say that a careful driver in that situation would have seen this wire in time to take evasive action; and that, as I have already indicated, was the view that the judge seems to have reached at the close of the hearing. If I felt that in this the judge had no advantage which we do not enjoy and that I was able to consider the matter equally as well informed as he, I might well have had considerable difficulty in saying that his judgment on this point should be upheld. But of course he had an advantage which we do not enjoy, in this view to which I have referred. It is quite clear that that view made a great difference to him. For all I know it would have made a great difference to me. In those circumstances I do not feel able to say that this is a case in which we are as well able to assess the matter as was the judge, and thus to form our own view.
After anxious consideration I have come to the conclusion that the appeal of the third defendant should be dismissed.
LORD JUSTICE HARMAN: This appeal arises out of what without prejudice may be called an extraordinary chapter of accidents. The first defendant, having become the owner of No. 11 Dome Hill, Caterham, a suburban house with a small garden in front, found it much encumbered with trees - saplings for the most part but one a large overgrown hawthorn. The first defendant commissioned his wife to clear the front garden. This involved removing the hawthorn tree, which was 25 feet high and stood within 10 feet of the house and 28 feet or thereabouts of the public road. There were telegraph wires stretching from a pole on the further side of the road across the garden to the house and at one point approaching the hawthorn tree. Now the only safe way of removing this tree was, as expert evidence showed, to lop it all round until it was no more than 8 to 10 feet high and then to remove the roots with a monkey winch. But the second defendant, who was an experienced tree-feller and whom the first defendant's wife was well justified in employing for this purpose, did not use that method at all. He felled the tree with a complete disregard for its proximity either to the house or to the telegraph wires: he used a lorry and he pushed and he pulled. He did some lopping but he did not lop the largest branch, which went out laterally towards the telegraph wires, and as a result, when the tree did eventually fall, it happening to fall towards the telegraph wires caught them and brought them down, with the result that they fell across the highway. They did not snap at the telegraph pole but at the house or thereabouts.
Now there were two young men, one of whom was the plaintiff, standing on the grass verge of the highway just outside the front garden and watching these proceedings; and the wires came down quite near them. They determined that one of them, who lived in the house next door, No. 13, should go and ring up the General Post Office and that the plaintiff should set about coiling up the wires and getting them out of the highway. At that moment along comes the third defendant in his car from Caterham at 45 to 50 miles an hour. This I might say was a derestricted road and therefore the pace was held not to be unreasonable. He was about 50 yards or so away when the plaintiff saw him. The plaintiff realised that he was accelerating. Deeming it hopeless to give him warning, he threw himself to the ground on the verge just as the third defendant's car came opposite to him, when he found himself looking at the third defendant. The third defendant, still accelerating, hit the wires violently and got them caught up in his car. He nevertheless went straight on, and afterwards denied all knowledge of the event and said he was not there at all, which was quite plainly a lie.
Now as ill-fortune would have it the plaintiff, owing to an extremely rare condition in the spine which I need not further describe for this purpose, suffered from severe injury through the mere fact of throwing himself to the ground, although he was not in the upshot struck by the wire. His companion was struck but was not injured by the wire. As to the second defendant, he admits negligence and has let the action go by default. The appeal is by the first and third defendants, both of whom the judge held liable, although in different proportions.
Now as to the first defendant, he through his wife employed an apparently competent independent contractor to do the work and therefore on general grounds he is not liable for that contractor's negligence. There are, of course, exceptions to that rule. They are I think well-defined exceptions. I read first from the judgment of Lord Justice Atkin in Belvedere Fish Guano Co. v. Rainham Chemical Works, at page 504 of 1920 2 Kings Bench. He says:
"In my judgment it follows from the facts stated that these defendants are liable to the plaintiffs. It will be sufficient to refer to Pickard v. Smith and Penny v. Wimbledon Urban District Council as establishing the appropriate principle of law":
and then he cites:
"'When a person, through a contractor, does work which from its nature is likely to cause danger to others, there is a duty on his part to take all reasonable precautions against such danger, and he does not escape from liability for the discharge of that duty by employing the contractor if the latter does not take these precautions'".
I emphasise the words
"from its nature is likely to cause danger".
That is further illustrated by the judgment of the Court of Appeal in Honeywill's case (already referred to by my Lord), where, giving the judgment of the Court, Lord Justice Slesser said this at page 196 of 1934 1 King's Bench:
"It is well established as a general rule of English law that an employer is not liable for the acts of his independent contractor in the same way as he is for the acts of his servants or agents, even though these acts are done in carrying out the work for his benefit under the contract".
On the next page there is this passage:
"....the ultimate employer is not responsible for the acts of an independent contractor merely because what is to be done will involve danger to others if negligently done".
Now this act did involve danger to others because negligently done. But it was a perfectly simple job to remove this tree without causing any danger to anybody and it was not work which was inherently dangerous so as to come within that exception.
The second exception is a special one - that of work on the highway. There, liability for independent contractors arises because those who have statutory authority to dig up a highway themselves owe a duty to the public using that highway, and the fact that they have a statutory authority to excavate does not absolve them from that duty even though they employ an independent contractor to do the work. It is not a vicarious liability at all but a direct one; and this explains Penny's case (1899 2 Queen's Bench) on which the learned judge relied. One may compare Hardaker v. Idle District Council (1896 1 Queen's Bench, at page 347) and Holliday's case, already mentioned (1899 2 Queen's Bench, at page 398).
Mr. Bax sought to prove a third exceptional case, namely, acts done near a highway; but I do not think that the cases he cited (which have already been discussed by my brother Widgery) bear out his contention. The observation of Lord Justice Sellers in Walsh v. Hoist & Co. (1958 1 Weekly Law Reports 800) seems to support it but it is obiter dictum and applies to different circumstances and is in my judgment too widely stated.
I agree, therefore, that this is a case within the general rule and that the first defendant is not liable.
As to the third defendant, the main difficulty before us (though not of course in the court below) was the fact that the judge took a view in the absence of the parties and without their consent. This is said to require a new trial. Now I confess to a very serious anxiety about this point, because I have always thought that views should be taken in the presence of the parties or their representatives and that nothing should be done without their consent. There has been much discussion about that point, and also about the point whether that which appears on a view is evidence in the case. I am satisfied, partly by what I have heard, partly by the statement made by Lord Justice Denning in Goold's case already read by my Lord, that if the view be a mere look by the judge at a public place which is done for the purpose of clarifying his mind as to what can be seen by the onlooker, he may, although it is undesirable that he should, go and have a view unaccompanied and unannounced. It is dangerous, of course, to take such a course. Circumstances change: surroundings change: it is very dangerous to suppose that things are much as they were three years ago or whatever it is. But here there is not any suggestion that there had been any change in the physical circumstances, nor that there was anything which the judge saw which materially altered that which he would have seen. If, of course, there had been something in the nature of an attempt to reconstruct the circumstances, then I agree that it certainly would not have done for the judge to go without both sides being present. If there had been some attempt to lay the wire across the road then it would have been fatal. As it was, all that the judge did was to take his car along and have a look down the road more or less from the place where the third defendant had looked. I see nothing wrong in that, and I think that what he saw becomes part of the evidence in the case.
It is said that the whole issue in the case turned on this view and that the judge's mind was obviously completely changed by it. He had been inclined to suggest that the plaintiff had not satisfied the burden of proof that the third defendant ought to have seen these wires. He changed his mind and came to the conclusion not only that he ought to have seen them but that on the balance of probability he did see them. I think he relied for that on the fact that after the third defendant had hit them he went recklessly on and was a reckless kind of person who would behave in a most outrageous manner. It is quite true that the view had a great influence on the judge's mind. But is it to be said that a view is only to be allowed if it is going to have no effect on a judge's mind? I do not think that is possible, and therefore we must accept that the judge, having an advantage which we did not have, namely the evidence of his own eyes, came to the conclusion that there was at least negligence, if not worse, on the part of this third defendant and so held him liable. This is a decision on fact and one with which I think we cannot interfere.
Though the case has been in many ways incomplete and unsatisfactory, in the absence of any discussion on the causation points, yet, having taken the form which it has, I think we can only dismiss the appeal so far as the third defendant is concerned; and I would so hold.
LORD JUSTICE SACHS: This case is concerned with the consequences that flowed from the removal of a spreading hawthorn tree, roots and all, from a lawn in the garden in front of the first defendant's house. It was an old tree, and its branches or spurs forked out at about head height, in the usual way that hawthorn trees do spread out. One or more of the branches reached a little above the level of the first floor eaves of the house. The situation of the tree in the garden has already been fully described by my Lord Justice Widgery.
The removal of that tree was obviously not fraught with the slightest risk to property or indeed to anyone doing the work if that work was done in a standard way, commencing with the sawing off of the branches at a suitable point and letting them drop simply on to the lawn. Unfortunately, by some near-miracle of incompetence, the woodman engaged by the occupier to do the work — the second defendant, a properly selected independent contractor — caused that hawthorn to fall against some telephone wires, and that started the chain of happenings that has resulted in the present claim.
Like my Lords, I am somewhat relieved that one has not to discuss in this particular appeal the issue of causation. It does not arise, having regard to the view that this Court is taking of the claim against the first defendant and the fact that it has been specifically disclaimed by the third defendant.
The first question to be considered in this Court is whether this is a case in which the occupier is liable for the negligence of the independent contractor. The general rule as to such liability is well known, and is well stated in Salmond on Torts, 14th Edition, at page 685, which provides a convenient and compact text from which to take the law.
"The general rule is that although an employer is responsible for the negligence and other wrongdoing of his servant, he is not responsible for that of an agent who is not a servant but an independent con-r tractor. There are, however, certain cases in which an employer is liable for the acts of an independent contractor";
and a little later it is as regards the cases thus referred to stated that in them the employer is "under a primary liability and not a secondary one". Similarly, in Winfield on Torts, 8th Edition, at page 649, the principle is put in this way:
"....the true question in every case in which an employer is sued for damage caused by his independent contractor :is whether the employer himself was in breach of some duty which he himself owed to the plaintiff".
I reject as ill-founded any suggestion that the law on this subject was, in passing, revolutionised by the decision of Thomson v. Cremin, an invitor and invitee case, decided in 1941, which first came to be reported in 1953 2 All England Reports at page 1185. That decision was of limited ambit, and as regards that ambit it was, soon after being brought into the full light, supplanted by section 2 (4) (b) of the Occupiers Liability Act, 1957.
There having been a full examination of the authorities by my Lord Justice Widgery, I do not propose to discuss them further individually but simply to state the conclusions to be drawn from them as a whole. There are indeed certain categories of cases in which an occupier is under such a primary duty to others that he in effect warrants the safety of his property against those who are injured by what happens upon it, or alternatively is personally responsible for having any work on it done in a competent manner even if he has selected a competent independent contractor. Those categories, which I do not propose to attempt to list exhaustively, include one where the occupier is under a statutory duty to have work cither safely or properly done or to keep his property in safe or proper repair. They include another where the dangers are created by work done upon a public highway, whether by a public authority or others; and this is a category discussed under that precise and limited heading in Salmond on Torts, 14th Edition, at page 691. It is there treated as being a separate and narrow category, and rightly so to my mind - on the assumption, of course, that the phrase "upon a highway" or "in a highway" includes the air space above it and the ground below it. This is a category into which the present case does not fall.
Then there is another category where the work done is so inherently dangerous, or, as it is sometimes termed, "extra hazardous", in relation either to those on a highway or to neighbours generally, that the public interest demands absolute responsibility. Typical instances include work done with or the manufacture of explosives or inflammable material. It is into that category that the case was placed by the trial judge.
As regards work done on land close to a highway, there is, to my mind, a sharp distinction between cases in which the work done is inherently dangerous and cases where there is no such danger though there may be risks entailed if the work is done incompetently. The dividing line between the two classes of case may sometimes be difficult and involve questions of degree; but generally speaking this is a matter of common sense as to what, in plain English, is "inherently dangerous" having regard, inter alia, to the distance from the highway of the place where the work is being done.
In the present instance it seems clear to me (differing, with respectful regret, from the trial judge) that there was nothing "inherently dangerous" in the operation of removing this particular hawthorn tree. Any competent workman could do it perfectly safely and without the slightest risk to the telephone wires, to the house, or to any other property, if he tackled it in what Dr. Desch stated was the standard way: nor could any occupier of land normally foresee that there was any danger involved in such an operation or that a competent woodman could be prone to what Dr. Desch described as "extreme stupidity". As Dr. Desch himself indicated, the whole position as regards "inherent danger" might be very different if the case was concerned with the removal of some 60-foot tree. The appropriate operation in the instant case was, incidentally, as different from what is usually termed "tree-felling" as a hawthorn tree differs from the single-trunk, tall trees to which, of course, the word "felling" is normally an appropriate word to apply.
It follows that as regards this particular case the first defendant is not responsible for the astonishing negligence of the second defendant, and the former's appeal must succeed.
I would add an observation that when coming to the above conclusion I derived no assistance at all from any distinction between "collateral and casual" negligence and other negligence. Such a distinction provides too many difficulties for me to accept without question, unless it simply means that one must ascertain exactly what was the occupier's duty and then treat any act that is not part of that duty as giving rise to no liability on his part. How, in the case of Walsh v. Hoist (already cited), could one distinguish between a falling half-brick and a falling cold chisel?
Again, I would observe that Mr. Bax, in his attempt to bring the instant case into what might be called a special and new category, was constrained to urge that an occupier would be liable if an independent contractor, engaged to fell a tree 100 yards or so away from a highway and remove it from the occupier's property, chose, out of a large number of different routes to an exit gate, the only one that lay close to a highway and then allowed the tree to roll into the road. That seems to me to indicate what unnecessarily absurd results would follow from assenting to the proposition urged on behalf of the plaintiff.
Turning now to the question of the third defendant's appeal, the first and much-pressed complaint related to the trial judge having visited on his own the scene of the incident - which, so far as the third defendant was concerned, was the public highway along which he had been driving. It was not a case of a view of some machinery in action, or a demonstration of the performance of some task. It was the latter type of case that was being dealt with in Goold v. Evans, where both Lord Justice Denning and Lord Justice Hodson (as they then were) based their decisions on the trial judge having watched the execution of some operation. Lord Justice Denning (as already mentioned by my Lord) stated specifically that there was an exception when the judge himself goes to see some public place, such as the site of a road accident, with neither party present; whilst Lord Justice Hodson said this in his judgment: "What I think happened in this case was something more than a view, because the view took place and an operation was performed, purporting to be the same operation as that which had been carried out when the plaintiff was injured". As to how the trial judge in this particular case came to make the visit has been in this Court a matter of an unfortunate conflict of recollection. The trial judge himself stated clearly what his recollection was when, in a passage already mentioned, he said (page 31 of the judgment): "It was because of this" — that is to say the difficulties — "that I finally determined that I ought to accept the invitation to see the road for myself". There is no doubt that he thought that both parties had agreed to such a course.
Mr. Fox-Andrews, when first addressing this Court on the point, urged that there had been a misunderstanding, and put forward a version of events which he very frankly agreed was not borne out when eventually the relevant tape-recording was brought, at a late stage in this appeal, before this Court. I would, however, say this: to my mind on such matters it is the judge's version which the Court would normally accept - as is the case with judge's notes of evidence: the only exception is when there has clearly been some mistake. I would also add this, that in this particular case, at the time when the judge stated that he was likely to visit the scene on his own there appears to have been - to put it at lowest - no objection by any party to that course being taken; and it is only rarely that an objection can be taken later to a matter which results at the highest in an irregularity.
I, however, prefer, like my Lords, to decide this matter on broader grounds. This was a visit to a public place which had as its purpose to follow and apply the evidence taken at trial. It was the sort of view where in any event no one in practice asks any questions and where the presence of counsel and solicitor, with perhaps some attendant witnesses, is a considerable and otiose expense. It is the sort of visit to a public place which everyone who has had experience of Circuit life is aware not infrequently takes place, particularly at the week-end. It may be, and often is the case, that the trial judge takes the trouble specifically to go to the place on his own. Sometimes, however, one cannot avoid a particular route which is over the scene of the accident: it may be on the way to Court from Lodgings, or it may be on the way to some centre of hospitality. But on the latter occasions is the judge supposed to avert his eyes or (as Mr. Fox-Andrews would have it) to close his mind to what he sees? If in London the scene was Norfolk Street, should he wait for an escort, at some expense, to be provided by counsel and solicitors on his way to Temple Station? In my judgment, the suggested doctrine of "judicial blinkers" provides no attractions.
The provisions of Order 35 rule 8 have already been recited. For my part, I am not prepared to import anything into it which necessitates undue expense or disruption of work. It is a matter of discretion as to whether the judge should take some representatives of the parties with him, whether he should invite them, or whether he should say, if they want to come, "I do not think it necessary". Great care must, of course, be taken to ensure that no injustice can result from a visit on his own. He must be sure that there have been no material changes in the locality or what is on it since the date of the relevant incident.
Knowing how plans and photographs may give an incomplete impression of a place, it may, indeed, often be wise to go and have a look in order to get a first-hand impression of the locality as a whole — to obtain a clearer and three-dimensional picture, so that, in effect, the evidence falls into place. It must be remembered that all he is doing is to appreciate the evidence already given in the light of a static background. Such visits by judges alone have a long history. Lord Justice Denning referred to the matter in Goold v. Evans. Lord Justice Widgery has also mentioned the visit paid by Lord Goddard, when Lord Chief Justice, to Euston Station — and there can be but few who had more practical experience of such matters, both as a "circuiteer" and as a judge. He gave no advance notice of his going to Euston Station. It is also to be noted that over the scores of years since the passing of the Judicature Act there is no report of a view on his own by a judge of some public place having been impugned in any court. It is, of course, wise, when practicable, to give advance notice of a visit. It is wise, if there has been a visit before closing speeches, to inform counsel of that. But it is not always practicable; and it would be no credit to the law if judges were not allowed to visit public places without an expensive legal panoply accompanying them.
Be it noted that I have been careful to refer only to a visit to public places, because it is only that with which we are to-day concerned. Some other day one may also have to deal with the case of what can be seen from public places - as, for instance, if there were some incident in litigation relating to the rigging of the "Discovery", which one passes every day - assuming that on the evidence the rigging was the same as at the time of some accident and there was no issue as to its condition. That, however, is not for decision as yet.
To my mind the judge was right here in the course that he took, which was eminently sensible. I am indeed much struck by the inability of Mr. Fox-Andrews to raise any realistic point tending to show a possibility even of injustice having arisen. The time of the year was the same; and, as the latest tape-recording shows (as also did the judgment itself) the trial judge, as one would expect, made full allowance for all the factors which could relate to matters such as cloud conditions, weather conditions and so forth. To my mind, even if this had been a case of an irregularity having occurred there is not the slightest scintilla of prejudice to the third defendant. The judge acted within his discretion and he acted rightly. That is the basis of my decision.
Turning from there to the facts, these need only be dealt with quite briefly having regard to what has been said by my Lords. The trial judge came to a conclusion against the third defendant on the issue of liability on two rather separate grounds. The first was that the act of this young man in driving into these wires was one out of reckless devilment — that he did in fact see the wires and therefore it mattered not whether an ordinary man ought to have seen them. The second point that he decided was that it was negligent for the young man not to see them if he did not see them. As regards the "pure devilment" point, he stated this (if I may take the briefest relevant passage from his judgment):
"One conclusion that can be drawn (and if necessary I shall draw it) is that being the sort of young man he is, he deliberately charged the wire for fun, smiling at himself for having made the plaintiff throw himself down on the ground..."
Later, when there was a discussion as to costs, he emphasised that that was in fact the view that he took.
As regards that issue, the third defendant was accelerating, a powerful factor leading to the plaintiff throwing himself on the ground. The third defendant then made off: he ran away in circumstances which need no further elaboration in this judgment. He told a pack of lies, which were fully exposed in court: indeed the trial judge undoubtedly regarded him as an unmitigated liar. It is true that one cannot find negligence because a man is a liar, but the matters to which I have referred do form (as has often been said in another Division of this Court) material from which a guilty conscience can be inferred and which could, therefore, form one element to be taken into consideration by a trial judge on this question of a deliberate running into the wires. I myself would have hesitated long on paper to make such a finding against a young man. But that there are young men prepared to act in devilment in this way is unfortunately the fact in this world, and reluctant though I would have been as a judge to come to that conclusion I would hesitate even longer to overturn an assessment of the experienced trial judge, who has seen the witnesses and weighed up the matter so carefully.
As regards negligence, there is little that I feel inclined to add to what has already been stated. The whole point of the view was to assist an assessment of the likelihood of a wire of this particular size and composition being seen against the background of that road surface in those surroundings by a car approaching at 45 to 50 miles an hour. The judge had obviously taken, very fairly, the view upon paper (if I may so put it) which my Lord Justice Widgery has mentioned. Having seen the position more clearly with the aid of the view of the public place, he came to a conclusion which was adverse to the third defendant; and I for one, having regard to the great advantage which the trial judge had, would be most reluctant to disturb his conclusion. I am indeed not prepared so to do, and accordingly would dismiss the appeal of the third defendant.
(Discussion on costs followed)
JUDGMENT on COSTS:
LORD JUSTICE HARMAN: In the court below the plaintiff succeeded against both those defendants who are appealing here and therefore, of course, got judgment with costs. In this Court he has again succeeded against the third defendant and therefore he recovers his costs of the appeal - that is to say of that defendant's appeal - against that defendant. So far no complications arise. There was a submission before us in regard to the first defendant, because that defendant has succeeded here and therefore if there were no complications he would get his costs here and below of his proceedings. But the plaintiff is a legally aided person and it is said firstly that the liability of the plaintiff to pay costs ought to be quantified having regard to the words of the Legal Aid and Advice Act, and secondly that he should recover any costs that he is ordered to pay from the unsuccessful third defendant. I for myself cannot accept that plea at all. It does not seem to me to be a Bullock case. There is no dilemma here such as there is in that class of case, and I do not think that anything but the simple order is right.
There remains the question of quantum. A figure has been suggested to us as the limit beyond which the first defendant will not ask to go. The plaintiff will recover £6,500 and therefore he has means with which to pay. It has been suggested to us that his contribution towards the first defendant's costs here and below ought to be limited to £1,500. That having been agreed by the parties it is not one which the Court thinks it ought to disapprove. What we should have arrived at or whether we would have arrived at any figure will remain wrapped in obscurity. So that the order so far as that is concerned will be that the plaintiff will pay the first defendant's costs here and below with a limit of £1,500; and the money paid into court by the first defendant - £500 - as a condition of appeal will be paid out to the first defendant. And I suppose the other defendant paid money into court?
MR BAX: Yes, my Lord. I was going to ask, if it be convenient now, that the third defendant's appeal be dismissed with costs and that the sum paid into court pursuant to the order of the court below by the third defendant may be paid out to the plaintiff's solicitors in part satisfaction.
LORD JUSTICE HARMAN: Yes, and of course the Law Society will recover their party-and-party costs.
MR BAX: Yes, my Lord — the difference. And I ask for an order for Legal Aid taxation.
LORD JUSTICE HARMAN: That is right, Mr. Davies, is it?
MR DAVIES: My Lord, I take it that this is the correct form: the order will be for the payment out of &500 with accumulated interest to the first defendant's solicitors without further authority?
LORD JUSTICE HARMAN: You always say that in the Queen's Bench. We never do it in the Chancery Division. I dare say you trust your solicitors more than we did!
MR FOX-ANDREWS: My Lord, in so far as my learned friend's application for payment out of the sum of money brought in by the third defendant is concerned, might I at this stage apply to your Lordships for leave to appeal to the House of Lords?
LORD JUSTICE HARMAN: This is the time to apply, I agree.
(Their Lordships conferred)
It is objected that though there were very interesting questions (as I thought, at any rate) as to causation and so on, none of those points were agitated before us and your appeal really was a question whether the judge was justified in having a view or not.
MR FOX-ANDREWS: Well, my Lord, if I might just say this in support of my application, I do not know how much weight I am properly entitled to place upon it but in my Lord Justice Widgery's judgment in respect of one matter he did say that he had had some anxiety, and your Lordship in the opening part of your Lordship's judgment said that you had had serious anxiety. In those circum stances, so far as the question of the view is concerned it does raise, I would have respectfully submitted, a matter of very great importance — a matter that has not as yet, as far as I know, been the subject of a decision by the House of Lords although it has been the subject of decision, as we have seen, by the Court of Appeal.
LORD JUSTICE SACHS: You are fine sticklers over irregularity but you have not a rag of merit on irregularity because on the facts, as I understood all three judgments, even if there was an irreg ularity we would not have allowed the appeal.
MR FOX-ANDREWS: That is not quite true, my Lord. Your Lordship has had no anxiety at all ------
LORD JUSTICE SACHS: You can always get the Lords to take a different view.
LORD JUSTICE HARMAN: They not infrequently do.
(Their Lordships conferred)
LORD JUSTICE HARMAN: We shall not give leave.
MR FOX-ANDREWS: In those circumstances I think it must follow that I cannot resist the application that my learned friend for the plaintiff makes for the money in court to be paid out.
MR BAX: My Lord, that application having been made I am instructed formally to apply to your Lordships for leave to appeal to the House of Lords against the first defendant upon the point on which your Lordships have given judgment.
(Their Lordships conferred)
LORD JUSTICE HARMAN: No, I do not think so.
(First Defendant's appeal allowed. Plaintiff-Respondent to pay costs of First Defendant here and below limited to £1,500. £500 paid into court by First Defendant to be paid out (with accumulated interest) to First Defendant's solicitors without further authority. Third Defendant's appeal dismissed with costs. Sum paid into court by Third Defendant to be paid out to Plaintiff's solicitors in part satisfaction. Taxation of Plaintiff-Respondent's costs under Legal Aid and Advice Act. Applications by Third Defendant and Plaintiff for leave to appeal to House of Lords refused)
