Wilson v Tyneside Window Cleaning Co

An employer owes a single personal duty to take reasonable care for employees’ safety and to conduct operations without exposing them to unnecessary risk. The duty applies when work is performed on premises controlled by a third party. Control is nevertheless an important circumstance in deciding what reasonable care requires.

The employer need not invariably inspect every workplace or remove every defect. The adequacy of precautions depends on the nature of the premises, established trade practice, the employee’s skill and knowledge, whether the danger is patent, and the system for reporting unsafe work. Reasonable care does not ordinarily require repeated warnings to an experienced worker about a patent danger already fully understood.

The plaintiff was an experienced window cleaner employed by the defendants. While working from a ladder at brewery premises, he pulled the sole remaining handle on a stiff and visibly rotten sash window. The handle came away, causing him to fall and suffer serious injury.

Donovan J dismissed his negligence claim at the York Assizes. He found that the plaintiff knew window handles could not safely be trusted and had been instructed to leave and report any window which appeared unsafe. No contributory negligence was alleged.

The plaintiff appealed. He contended that the employer’s personal duty required an inspection of premises controlled by a third party, steps to make the window safe, and a system involving specific or repeated warnings and instructions. The central issue was whether reasonable care required those precautions in the circumstances.

1. Appeal dismissed unanimously. Pearce LJ, Parker LJ and Jenkins LJ agreed that the defendants had not failed to take reasonable care for the plaintiff’s safety.

2. Per Pearce LJ, the categories commonly described as safe premises, safe plant and a safe system are manifestations of one duty. The employer must take reasonable care to conduct operations without exposing employees to unnecessary risk. That duty applies both on the employer’s premises and on premises controlled by a stranger.

3. The employer’s lack of control does not eliminate the duty. It is, however, an important circumstance when deciding how the duty must be discharged. Reasonable precautions available on the employer’s own premises may be impracticable on premises controlled by another person. The applicable question remains whether the employer took reasonable steps in all the circumstances.

4. The proposition that an employer owes no duty concerning third-party premises was doubted. The approach in Biddle v Hart [1907] 1 KB 649 was preferred: an employer using another person’s premises or plant may owe a duty of reasonable care, although previous satisfactory dealings and the absence of warning signs may demonstrate that the duty was discharged.

5. The defendants were not required to inspect every window before each quarterly cleaning. There was no evidence of such a trade practice, and defects could arise continually. The risks could reasonably be addressed by employing properly trained workers, providing appropriate equipment, warning them adequately, and instructing them to leave and report windows which appeared unsafe.

6. Reasonable care did not require repeated warnings about the possibility of handles coming away. The plaintiff was highly experienced, knew the precise and patent danger, and knew that he should test handles and avoid relying on them where failure could cause injury. The position might differ for an insidious or unseen occupational danger.

7. Per Parker LJ, where the employer cannot fully secure premises controlled by a third party, greater care may be required in devising the system of work. On these facts, however, neither periodic supervision nor a universal instruction to open suspect sash windows from inside was shown by trade practice or other evidence to be required of a prudent employer.

The appeal was dismissed. There was no order as to costs, save that the appellant’s costs were to be taxed under the Legal Aid and Advice Act.

• Court of Appeal: The plaintiff’s appeal was dismissed unanimously. Donovan J’s dismissal of the negligence claim was upheld.
• York Assizes: Donovan J dismissed the plaintiff’s claim on 14 June 1957, having assessed damages contingently at £4,320.