Editorial Committee of the Cambridge Law Journal

Tort. Negligence. Independent Contractor. Inspection and Approval of Work by EmployersHeld to Negative Liability of Contractor. Buckner v. Ashby &Horner, Ltd. [1941] 1 K. B. 321Author(s): J. D. G.Source: The Cambridge Law Journal, Vol. 8, No. 1 (1942), p. 105Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge LawJournalStable URL: http://www.jstor.org/stable/4503381 .

Accessed: 18/06/2014 00:21

Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .http://www.jstor.org/page/info/about/policies/terms.jsp

.JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range ofcontent in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact support@jstor.org.

.

Cambridge University Press and Editorial Committee of the Cambridge Law Journal are collaborating withJSTOR to digitize, preserve and extend access to The Cambridge Law Journal.

http://www.jstor.org

This content downloaded from 195.78.108.60 on Wed, 18 Jun 2014 00:21:02 AMAll use subject to JSTOR Terms and Conditions

Notes on Recent Cases Notes on Recent Cases 105 105

where it is said with reference to the dictum of Brett L.J., 'This seems to set at naught the fundamental principles on which extradition rests, because it denies the common law right to be at liberty if no offence against the law of England has been committed. The Extradition Act provides the only way in which that right may be broken in upon.'

The apprehension, to-day, of fugitive offenders within the British Empire depends on the Fugitive Offenders Act, 1881, which, by section 2, provides that a fugitive offender found in any part of His Majesty's dominions may be apprehended under an endorsed or provisional warrant and returned in the manner provided by the Act. If under a warrant for the arrest of one person a constable, by mistake, arrests another person, he is afforded no protection by the warrant against an action for false imprisonment, even though he had reasonable ground for suspecting that the person arrested was the one to whom the warrant related.

R. C.

TORT-NEGLIGENCE-INDEPENDENT CONTRACTOR-INSPECTION AND APPROVAL OF WORK BY EMPLOYERS HELD -TO NEGATIVE LIABILITY OF CONTRACTOR.

Buckner v. Ashby & Homer, Ltd. [1941] 1 K. B. 321.

A & Co., the defendants, contracted with the London Corporation to roof in a passage-way. The Corporation did not supervise the work, but required that on completion it should be inspected and passed by their inspector. The defendants left the sole-plate of a pillar in a dangerous position on the floor of the passage, which was dark by day, and at night was lit by a dimmed electric bulb, which illuminated the entrance to the premises of X, but did not illuminate the passage floor.

The plaintiff, B, an employee of X, tripped over the sole-plate and was injured in consequence.

Atkinson J. held that A & Co. were not liable. He found that (1) the sole-plate was unnecessarily dangerous, considering the inadequate conditions of lighting, and (2) B was not guilty of contributory negligence. Applying Donoghue v. Stevenson [1932] A. C. 562, he held that as the inspection of the work by the Corporation had taken place, there was 'an intervening conscious agency which might and should have averted the mischief ' (at p. 335), and A & Co. owed no duty to B. He also held that the effective cause of the injury was the inadequate lighting of the passage; for this A & Co. were not responsible, as they were entitled to assume that the Corporation were in control of the lighting. The relevant principle here was that expressed by Lawrence J. in Brown v. Ctoerill (1934) 51 T. L. R. 21: ' Are the terms of the contract such that an ordinarily prudent person would consider that his liability was at an end after the approval of the other party to the contract ? '

The Court of Appeal affirmed this decision on the facts, du Parcq L.J. (at p. 338) emphasizing that a new principle of law was not being laid down. Goddard L.J. was careful to point out that the intermediate inspection by the employers would not invariably remove the duty owed by the contractors to B. Had their work created something in the nature of a trap not apparent to those who inspected and approved the work, such inspection and approval would not have broken the nexus of liability.

The decision adds a little more to the appreciation of the significance of Donoghue'e case, and would appear finally to discredit Earl v. Lubbock [1905] 1 K. B. 253, though the misconceptions created by that case might disappear, were it pleaded differently, at the present day.

J. D. G.

where it is said with reference to the dictum of Brett L.J., 'This seems to set at naught the fundamental principles on which extradition rests, because it denies the common law right to be at liberty if no offence against the law of England has been committed. The Extradition Act provides the only way in which that right may be broken in upon.'

The apprehension, to-day, of fugitive offenders within the British Empire depends on the Fugitive Offenders Act, 1881, which, by section 2, provides that a fugitive offender found in any part of His Majesty's dominions may be apprehended under an endorsed or provisional warrant and returned in the manner provided by the Act. If under a warrant for the arrest of one person a constable, by mistake, arrests another person, he is afforded no protection by the warrant against an action for false imprisonment, even though he had reasonable ground for suspecting that the person arrested was the one to whom the warrant related.

R. C.

TORT-NEGLIGENCE-INDEPENDENT CONTRACTOR-INSPECTION AND APPROVAL OF WORK BY EMPLOYERS HELD -TO NEGATIVE LIABILITY OF CONTRACTOR.

Buckner v. Ashby & Homer, Ltd. [1941] 1 K. B. 321.

A & Co., the defendants, contracted with the London Corporation to roof in a passage-way. The Corporation did not supervise the work, but required that on completion it should be inspected and passed by their inspector. The defendants left the sole-plate of a pillar in a dangerous position on the floor of the passage, which was dark by day, and at night was lit by a dimmed electric bulb, which illuminated the entrance to the premises of X, but did not illuminate the passage floor.

The plaintiff, B, an employee of X, tripped over the sole-plate and was injured in consequence.

Atkinson J. held that A & Co. were not liable. He found that (1) the sole-plate was unnecessarily dangerous, considering the inadequate conditions of lighting, and (2) B was not guilty of contributory negligence. Applying Donoghue v. Stevenson [1932] A. C. 562, he held that as the inspection of the work by the Corporation had taken place, there was 'an intervening conscious agency which might and should have averted the mischief ' (at p. 335), and A & Co. owed no duty to B. He also held that the effective cause of the injury was the inadequate lighting of the passage; for this A & Co. were not responsible, as they were entitled to assume that the Corporation were in control of the lighting. The relevant principle here was that expressed by Lawrence J. in Brown v. Ctoerill (1934) 51 T. L. R. 21: ' Are the terms of the contract such that an ordinarily prudent person would consider that his liability was at an end after the approval of the other party to the contract ? '

The Court of Appeal affirmed this decision on the facts, du Parcq L.J. (at p. 338) emphasizing that a new principle of law was not being laid down. Goddard L.J. was careful to point out that the intermediate inspection by the employers would not invariably remove the duty owed by the contractors to B. Had their work created something in the nature of a trap not apparent to those who inspected and approved the work, such inspection and approval would not have broken the nexus of liability.

The decision adds a little more to the appreciation of the significance of Donoghue'e case, and would appear finally to discredit Earl v. Lubbock [1905] 1 K. B. 253, though the misconceptions created by that case might disappear, were it pleaded differently, at the present day.

J. D. G.

This content downloaded from 195.78.108.60 on Wed, 18 Jun 2014 00:21:02 AMAll use subject to JSTOR Terms and Conditions