Malone v. Laskey AND Another. [1907] 2 K.B. 141, [1907] PDF

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Malone v. Laskey AND Another. [1907] 2 K.B. 141, [1907]...

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Date and Time: Sunday, 17 January, 2021 11:35:00 PM MYT Job Number: 134274221

Document (1) 1. MALONE v. LASKEY AND ANOTHER. [1907] 2 K.B. 141, [1907] 2 K.B. 141 Client/Matter: -None-

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Malone v Laskey Overview TLR 399

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[1907] 2 KB 141, 76 LJKB 1134,

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[1904-7] All ER Rep 304, 51 Sol Jo 356,

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97 LT 324, 23

MALONE v. LASKEY AND ANOTHER. [1907] 2 K.B. 141 [COURT OF APPEAL] SIR GORELL BARNES, PRESIDENT, FLETCHER MOULTON and KENNEDY L.JJ. 1907 March 19, 20. Landlord and Tenant — Liability of Landlord for Injury happening to Stranger during Tenancy — Landlord under no contractual Liability to Repair — Repairs in fact done by Landlord — Negligence of Landlord's Servants in Executing Repairs — Nuisance. The defendants, who were the owners of considerable house property, let a house to a tenant, who subsequently sub-let it to a company, whose manager resided on the premises with his wife (the plaintiff) and his family; the defendants were not liable to do any repairs to the house. In the lavatory of the house was a water tank, which became insecure, owing, as was alleged, to the vibration caused by an engine and machinery upon adjoining premises of the defendants, which were used by them for the purpose of generating electricity for the lighting of their property. Complaints of the insecurity of the water tank were made by the plaintiff and her husband to the tenant, who forwarded them to the defendants. Ultimately the defendants sent two workmen, who were their own servants, to do the necessary repairs, and an iron bracket was fixed underneath the tank to support it. Three months afterwards the bracket fell upon the plaintiff and seriously injured her. The jury found that the bracket fell by reason of the working of the defendants' engine, that the working of the engine amounted to a nuisance, and that the work of repair in putting up the bracket was done in an improper and negligent manner and the apparatus left in a condition dangerous to persons properly using the lavatory:-

Held, first, that the plaintiff had no cause of action against the [*142] defendants on the ground of nuisance, because she had no interest in the premises or right of occupation in the proper sense of the term; secondly, that she could not recover on the ground of negligence, for there was no contractual relation between the plaintiff and the defendants, and the doing of the repairs was a voluntary act on the part of the defendants not done in the discharge of a duty to the plaintiff; and that, as the defendants had no control of the premises, there was no invitation on their part to the plaintiff, but at the utmost an innocent representation as to the state of the premises, which, as they had employed apparently competent men to do the repairs, gave the plaintiff no cause of action.

APPEAL of the defendants from the verdict and judgment in an action tried before Darling J. and a jury. The plaintiff was a married woman, and the defendants were the trustees of the Birkbeck Permanent Benefit

Page 2 of 9 MALONE v. LASKEY AND ANOTHER. [1907] 2 K.B. 141 Building Society, who were the owners of certain premises known as 44, Southampton Buildings, Holborn, and of other premises adjoining. The writ in the action was indorsed with a claim for damages for nuisance caused by (a) the defective state of 44, Southampton Buildings, and (b) the vibration occasioned by certain machinery of the building society situate in the immediate rear of those premises; also with a claim for damages for negligence in insufficiently repairing a certain water tank in the lavatory of those premises, whereby the plaintiff was seriously injured. The statement of claim alleged that the plaintiff was the wife of Thomas Stratford Malone, and had at all times material resided with him at 44, Southampton Buildings, of which and of certain adjoining property the building society were the owners; that the defendants erected and placed on their adjoining premises large engines and plant for the purpose of generating electricity to light their property, and that they worked the engines and machinery in such a manner as to constitute a nuisance to the occupiers of all adjoining property by reason of the great noise and vibration; that by reason of the vibration the premises in which the plaintiff resided were severely shaken and injured, and that in particular a water tank fixed in the lavatory was rendered unsafe and dangerous to persons using the same; that in consequence of complaints made by plaintiff's husband and other occupiers of the premises the defendants from [*143] time to time sent workmen to repair the damage and make the premises safe for habitation; and that the defendants through their workmen or agents executed the repairs in a negligent and improper manner, and in such a way as to leave the tank in a dangerous and improper condition for those using the lavatory. There was an alternative allegation that, if the repairs were executed properly, the tank again became unsafe and dangerous by reason of the vibration arising from the defendants continuing the nuisance. The statement of claim went on to allege that on May 7, 1905, while the plaintiff was using the lavatory, the supports of the water tank gave way without warning and partly fell, and the bracket supporting the tank struck the plaintiff on the head and back and caused serious and permanent injuries. In particulars subsequently delivered under a Master's order it was said that the negligence complained of consisted in the manner in which the tank was refixed by the defendants' workmen; that the supports used for the tank were not strong enough for the purpose, nor were they sufficiently or securely attached to the main walls of the building; and that the main walls were in so old and defective a condition as to be unable to support the tank without special precautions which were not taken. By their defence the defendants pleaded that the premises had been let by them, and that they were under no liability to repair; they denied all the allegations of nuisance and negligence, and as to the latter they alleged in the alternative that, if they made the repairs (which they denied), they did so at the request of the tenants of the premises, and employed skilled and competent men to do them. At the trial it appeared that in 1899 the defendants, as trustees of the Birkbeck Building Society, let the premises 44, Southampton Buildings, under an oral agreement to a firm of Witherby & Co., who were law stationers, as yearly tenants, and that the tenancy of Witherby & Co. was still in existence at the date of the accident. Under the agreement the defendants were under no liability to repair the premises. In 1901 Witherby & Co. sub-let a portion of No. 44 to the Script Shorthand Company, of which company the plaintiff's husband was the manager and secretary. In that capacity the plaintiff's husband resided with [*144] his wife and family upon the portion so sub-let, his occupation of the premises being apparently part of his remuneration for his services to the Script Shorthand Company. In 1902 the electric light engine and machinery referred to in the statement of claim were first erected on adjoining premises of the defendants, and they had been worked continuously since that date. There was evidence that in 1904 the plaintiff and her husband had Complained to Witherby & Co. of the vibration caused by the working of the engine and of the condition of the water tank in the lavatory, which they alleged to be unsafe, and that these complaints had been forwarded by Witherby & Co. to the defendants. In January, 1905, the defendants sent two plumbers, who were servants of the defendants and members of the permanent staff kept for attending to house property belonging to the building society, to repair

Page 3 of 9 MALONE v. LASKEY AND ANOTHER. [1907] 2 K.B. 141 the water tank. The plumbers put up a bracket to support the tank, and it was this bracket which on May 7 following fell and injured the plaintiff. The following were the questions left to the jury, with their answers: (1.) "Did the bracket fall by reason of the working of the boilers and engines of the defendants?" Answer: "Yes." (2.) "Did such workings cause a vibration amounting to a nuisance?" Answer: "Yes." (3.) "If so, was the injury to the plaintiff the consequence of that?" Answer: "Yes." (4.) "Did the defendants, when they put up the bracket and placed the tank upon it, do this work in an improper or negligent manner, and leave the apparatus in a condition dangerous to anyone properly using the lavatory?" Answer: "Yes." (5.) "If so, was the plaintiff injured in consequence of such action on the part of the defendants?" Answer: "Yes." The jury assessed the damages at 400l., and the learned judge gave judgment for the plaintiff. The defendants appealed.

Montague Lush, K.C., and Ricardo (C. Bray with them), for the defendants. There was, in fact, no evidence of a nuisance by vibration; but, assuming that there was such evidence, it amounted to a private nuisance only. There was no evidence of a public nuisance, in respect of which an individual may sue if [*145] he suffers special damage, as was the case in Tarry v. Ashton. (1) There can be no right of action in respect of a private nuisance except in respect of a proprietary right in premises affected by it. The present case being, at the highest, one of discontinuous nuisance, the only person who could have a right of action in respect of it would be the occupier of the premises affected: Jones v. Chappell (2); Bullen & Leake, tit. Nuisance; Addison on Torts, 7th ed. pp. 362, 408. The plaintiff was not the occupier of, and had no interest in, the premises. The findings of the jury are really inconsistent with one another, for if (as they have found) the damage was occasioned by the negligence of the defendants' servants in not properly fixing the bracket, it cannot be regarded as the result of the nuisance. On the other hand, the vibration could not for the present purpose be looked upon as a nuisance merely because it brought down a bracket which was not properly fixed. With regard to the cause of action based upon the alleged negligence in the fixing of the bracket, the plaintiff can have no right of action, for the defendants owed no duty in the matter to her, there being no contract on their part with her to repair the premises: Cavalier v. Pope. (3) There being no contractual obligation on the defendants to repair the premises, their doing so was a gratuitous act. The doctrine upon which the so-called "trap" cases, of which Indermaur v. Dames (4) is a well-known instance, proceeded is inapplicable to the present case; they are cases in which persons in the possession or control of premises invited the plaintiff to come upon them, there being at the time some trap or defect thereon, as in Miller v. Hancock (5), where the landlord retained possession and control over a staircase which proved defective. The present defendants were not in possession or control of the premises where the accident happened. [They also cited Nelson v. Liverpool Brewery Co. (6); Earl v. Lubbock. (7)] Powell, K.C. (C. Herbert Smith and Ralph Thomas with him), for the plaintiff. The jury in effect found that the bracket was (1) (1876) 1 Q. B. D. 314.

(2) (1875) L. R. 20 Eq. 539.

(3) [1905] 2 K. B. 757; [1906] A. C. 428.

(4) (1867) L. R. 2 C. P. 311.

Page 4 of 9 MALONE v. LASKEY AND ANOTHER. [1907] 2 K.B. 141 (5) [1893] 2 Q. B. 177.

(6) (1877) 2 C. P. D. 311.

(7) [1905] 1 K. B. 253.

[*146] negligently and improperly put up by the defendants' servants, and that by their action the defendants shook it down. Upon the facts and the findings of the jury the plaintiff is entitled to recover, either on the ground of negligence, or of trespass to the person, or of nuisance. As to negligence, a heavy article like a bracket, placed at a considerable height above the floor, is a dangerous thing if insecurely fixed, and persons who, like the defendants, place such an article in such a position and neglect to make it secure are responsible for any injury occasioned in consequence to persons whose coming in the ordinary course o things into proximity to the article so placed they ought to have contemplated: Heaven v. Pender (1); Le Lievre v. Gould. (2) In Rylands v. Fletcher (3) water collected in a reservoir was held to be a dangerous thing, and a heavy article raised some distance above the surface of the ground is at least equally dangerous. [On this point he also cited Midwood v. Manchester Corporation (4); Parry v. Smith. (5)] Cases such as Cavalier v. Pope (6) and Lane v. Cox (7) have no bearing on the present case; they were cases of mere non-repair on the part of the landlord, and acts of nonfeasance stand on a very different footing from acts of misfeasance. If the defendants, on complaints being made, had merely refused to do anything, on the ground that they were under no contractual liability to repair, the case would no doubt have been very different. But as they elected to come upon the premises and do the repairs, those concerned were entitled to suppose that they had done the work properly and made all safe; and to leave the bracket insecurely and insufficiently fastened was laying a trap for persons who might come into proximity to it and upon whom it might fall. Having assumed to undertake the repairs, the defendants subjected themselves to the obligation of using due care in carrying them out, so as not to create a dangerous trap for inmates who might make use of the lavatory. In Skelton v. London and North Western Ry. Co. (8) Willes J. pointed out the difference in this connection (1) (1883) 11 Q. B. D. 503. (2) [1893] 1 Q. B. 491, at p. 497. (3) (1868) L. R. 3 H. L. 330. (4) [1905] 2 K. B. 597. (5) (1879) 4 C. P. D. 325. (6) [1905] 2 K. B. 757; [1906] A. C. 428. (7) [1897] 1 Q. B. 415. (8) (1867) L. R. 2 C. P. 631.

[*147] between acts of omission and commission, and said: "If a person undertakes to perform a voluntary act, he is liable if he performs it improperly, but not if he neglects to perform it. Such is the result of the decision in the case of Coggs v. Bernard." (1) The defendants were not, it is true, in occupation or control of the premises when the accident happened, and therefore the case is not, so far, on the same footing as the cases in which persons in occupation or control of premises on which there was a trap invited the plaintiff to come on the premises. But the same principle really applies. The defendants assumed control of the premises for the purpose of doing the repairs, and, having undertaken and affected to do such repairs as were necessary, they in effect invited those whom they must know in the ordinary course of things would use the lavatory to do so, and impliedly represented that they might safely use it; they thereby incurred a duty to those persons of not negligently leaving the place in a latently

Page 5 of 9 MALONE v. LASKEY AND ANOTHER. [1907] 2 K.B. 141 dangerous state. Collis v. Selden (2) is not an authority against the plaintiff's contention; that case was decided on demurrer at a time when the rules of pleading were much stricter and more technical than they now are, and turned on a point of pleading, the declaration being held to be bad because it did not state any facts from which a duty towards the plaintiff could be implied. The reasons for the decision were thus stated by Willes J.: "The declaration is not founded upon any duty of the occupier of the house to protect persons lawfully coming there against any hidden danger of which the defendant knew or ought to have known; but it is founded on alleged carelessness in doing an act, namely, hanging a chandelier. The chandelier is to be regarded as movable property, and the declaration should have shewn either that it was a thing dangerous in itself and likely to do damage, or that it was so hung as to be dangerous to persons frequenting the house. If that averment had been made and proved, the case might fall within the class to which Sullivan v. Waters (3) belongs - as a trap to persons using or likely to use the way, whether public or not." These observations seem to indicate that, on proper (1) (1703) 2 Lord Raym. 909; 1 Sm. L. C. (11th ed.) 173. (2) (1868) L. R. 3 C. P. 495. (3) (1864) 14 Ir. C. L. R. 460.

[*148] averments, there would be a cause of action in such a case as the present. The bracket, being a heavy article, was, in the situation in which it was, a thing dangerous in itself, and it was so put up as to be dangerous to persons using the lavatory, and whom the defendants must have contemplated as likely to use it. [They also cited on this point Corby v. Hill (1); Gallagher v. Humphery. (2)] Apart from negligence, the plaintiff is entitled to recover in respect of trespass to the person. The jury have found that by the vibration of their engines the defendants shook down the bracket, the legal result of which is the same as if they had dropped it out of their own hands upon the plaintiff. As regards the liability founded upon nuisance, it is not necessary that the person aggrieved should be the tenant of the premises or should have an interest in the property, and the action is maintainable without shewing that any injury has been caused to the property itself: Benjamin v. Storr. (3) [FLETCHER MOULTON L.J. That was a case of a public nuisance, which involves very different considerations.] Lush, K.C., in reply. [He was directed to confine his argument to the point whether the defendants, by doing the repairs, represented that the place was safe.] There are only three classes of case in which the Courts have laid down that, apart from any contractual obligation, such an action will lie, and they all turn upon the existence of a duty on the part of the person sought to be made liable. The first is where the act committed amounts to a public nuisance, which is a breach of duty alike to the public and to the person who sustains a particular injury from it. The second is where something that has been called a "noxious thing" is left in a position in which an unknown person may come in contact with it; the thing so left must, however, fall within the class of noxious things. The third class is where a person, having the control of premises, invites another to come upon the premises, in which case he will be liable to the person invited if the latter is injured by reason of a trap upon the premises, the existence of which was (1) (1858) 4 C. B. (N.S.) 556. (2) (1862) 10 W. R. 664. (3) (1874) L. R. 9 C. P. 400.

[*149] known, or ought to have been known, to the person inviting. In the last class control of the premises is an essential condition of liability, and it was the retention by the owner of the control of the staircase in Miller v. Hancock (1) which made him liable. There being no initial duty on the part of the defendants, the fact that they interfered by doing the repairs did not create a duty on their part. There was no invitation by the defendants to the plaintiff, and in the absence of control, there was no representation by them as to the state of the premises. Even if doing the repairs amounted to a representation, it was an innocent representation, and in the absence of deceit gave no right of action. Assuming that it could possibly be held that both control and invitation existed here, the proper test under the circumstances is not whether the defendants knew or ought to have known that the bracket was unsafe, but whether they exercised reasonable care in doing the work of repair. [He also cited Scholes v. Brook. (2)]

Page 6 of 9 MALONE v. LASKEY AND ANOTHER. [1907] 2 K.B. 141 SIR GORELL BARNES, PRESIDENT. In this case the plaintiff sues the defendants for damages for injuries sustained by her under circumstances which I will state sufficiently fully to indicate the point that we have to decide. The premises on which the accident happened belong to the Bi...