Warwick Hotel Company Ltd v Bermuda Gas & Utility Company Ltd and Roberts

• Jurisdiction: Bermuda
• Judgment Date: 11 December 1986
• Neutral Citation: BM 1984 CA 21
• Date: 11 December 1986
• Docket Number: Civil Appeal No. 6 of 1986
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

In the Court of Appeal for Bermuda

In the Court of Appeal for Bermuda

Henry, JA

Blair-Kerr, P

da Costa, JA

Civil Appeal No. 6 of 1986

Civil Appeal No. 6 of 1986

Civil Appeal No. 6 of 1986

Warwick Hotel Company Ltd.

Plaintiff/Appellant

and

Bermuda Gas & Utility Co. Ltd.

1st Defendant/Respondent

Lancelot William Livingstone Roberts

2nd Defendant/Respondent

Warwick Hotel Company Limited

Appellant (Plaintiff)

and

Bermuda Gas and Utility Co. Ltd.

1st Respondent (1st Defendant)

Lancelot William Livingstone Roberts

2nd Respondent (2nd Defendant)

Warwick Hotel Company Limited

Appellant

and

Bermuda Gas & Utility Co. Ltd.

1st Respondent

and

Lancelot William Livingstone Roberts

2nd Respondent.

Mr. Smedley, Q.C. and Mr. Hargun for Plaintiff Appellant

Mr. Lightman, Q.C. and Mr. Bell for Defendants Respondents

Overseas Tankship (UK) Ltd v The Miller Steamship Pty CoELR [1967] AC 617

Scott v London & St. Katherine Docks Co (1861-73) AER Rep 246

Temporary Board of School Trustees of Salisbury School District v New Brunswick Contractors Ltd (1951) 3 DLR

AS James Pty Ltd v CB Duncan [1970] VR 705

Queensbridge Motors & Engineering Co Pty Ltd v Edwards [1964] Tas SR 93

Smith v Buckley [1965] Tas SR 210

Rowe v Turner Hopkins & Partners [1980] 2 NZLR 550

Midland Bank Trust Co v Hett Stubbs & KempWLR [1978] 3 WLR 167

Chapman v HearseUNK (1961) 106 CLR 112

The Heron IIELR [1969] 1 AC 350

Victoria Laundry (Windsor) Ltd v Newman Industries LtdELR [1949] 2 KB 298

Parsons Ltd v Uttley Ingham & CoELR [1978] 1 QB 781

Sayers v Harlow UDCUNK [1958] 2 All ER 342

DeMeza & Stuart v Apple, Van Straten Sheno & StoneUNK [1974] 1 Lloyds Rep. 508; [1975] 1 Lloyds Rep. 498

AB Marintrans v Comet Shipping Co Ltd (The Shinjitsu Maru) No. 5UNK [1985] 3 All ER 442

Vesta v ButcherUNK [1986] 2 All ER 488

Lipkin Gorman v Karpnale Ltd.UNK [1987] BCLC 159

McLaren Maycroft & Co v Fletcher Development Co Ltd [1973] 2 NZLR 100

R v BatesUNK [1952] 2 All ER 842

Hall v Brooklands Auto-Racing ClubELR [1933] 1 KB 205

Elder Dempster & Co v Patterson Zochonis & CoELR [1924] AC 522

Law Reform (Liabilities in Tort) Act 1951, s.3

Remoteness of damage — Statutory interpretation — Relevance of short title — Whether defence to claim for breach of contract — Appeal by plaintiff against decision that 2nd defendant was not at fault — Respondent's notices claiming affirmation by 2nd defendant that claim in contract could not succeed against him, and declaration that contributory was available as defence for both defendants — Whether 1st defendant had admitted there was a real risk of fire — meaning of “real risk”— Whether principle of res ipsa loquitur could be applied — Whether 2nd defendant's actions in leaving deep fat fryers unattended were those of a competent and prudent serviceman — Whether 2nd defendant with his knowledge and experience, should have known there was a real risk of fire occurring

JUDGMENT

The Plaintiff Appellant is the owner and operator of the Inverurie Hotel. Among the cooking facilities at the hotel on November, 1, 1979, were two gas fired deep fat fryers which were not functioning properly. The First Defendant Respondent operates a business which includes the servicing and maintenance of gas appliances. The Plaintiff Appellant contacted the First Defendant Respondent by telephone with a view to having the deep fat fryers put into proper working order and the First Defendant Respondent sent one of its servicemen, Mr. Roberts, the Second Defendant Respondent to the hotel for this purpose. Mr. Roberts, having taken certain steps designed to correct the fault in the fryers reported to him relit the burners with a view to testing whether those steps were successful, and went to a nearby office in the hotel where he telephoned his wife and sat reading a newspaper. His intention he said was to remain there for the 5 or 10 minutes which he considered would be required for the oil in the fryers to reach a proper cooking temperature if the units were operating correctly. While he was away the oil in the fryers caught fire. Despite efforts made to extinguish it the fire spread and damaged the hotel. The Appellants brought an action to recover damages from the Respondents. That action was originally founded in contract and in tort for negligence, but the claim in tort was abandoned and the trial proceeded on the basis of breach of contract. At the conclusion of the trial the learned trial judge expressed himself as ‘satisfied that, whatever the cause of the fire, its outbreak cannot be fairly regarded as due to any failure upon Mr. Roberts part to demonstrate the ordinary care and skill of an experienced serviceman’, and dismissed the claim. This is an appeal against that decision. There is also a Respondents' notice which seeks affirmation of the judgment, as regards the Second Respondent on the ground that the claim in contract cannot succeed against him, and as regards both Respondents on the ground that the defence of contributory negligence was, contrary to the learned trial judge's finding, available to them and that the Appellant was solely or substantially responsible for any damage or loss sustained.

It should be observed at the outset that there is no evidence of a contract between the Appellant and Mr. Roberts. Once the claim in negligence was abandoned therefore, the action against Mr. Roberts was bound to fail. Accordingly in so far as the appeal seeks to set aside the judgment dismissing the claim against Mr. Roberts it is bound to fail and must be dismissed.

The first ground of appeal is as follows:

‘Having accepted that in balancing the risks of fire against the precautions necessary to prevent it ‘even a perception of slight risk would be enough to cast upon him a duty to stay put’ the Learned Judge erred in his conclusion that Roberts should not reasonably have had in mind the perception of such a slight risk. In reaching that conclusion the Learned Judge failed to have regard to, or alternatively failed to give sufficient weight to:

• (a) The admissions made by the Defendants/Respondents in the pleadings; and

• (b) The admissions made by the Defendants' witnesses in their evidence.’

In support of this ground counsel for the Appellant pointed first to the averment in paragraph 6 of the reamended Statement of Claim ‘that the 1st Defendant know of or ought to have been aware of, the danger of explosions and fire arising out of the use of propane gas and gas appliances and the risk of fire in deep fat fryers’ and to paragraph 4 of the re-amended Defence which states

‘The First Defendant admits that there is a danger of explosion and fire arising out of the use of propane gas and gas appliances and that there is a risk of fires in deep fat fryers. The first Defendant makes no admission as to the extent of such risk.’

Counsel submitted that this is a clear admission of the risk of fire and that it was not open to the learned trial judge to find to the contrary.

It seems to me that, inasmuch as paragraph 4 of the reamended Defence contains a statement by the First Defendant only, the position of the two Defendants must be separately considered. In Overseas Tankship (U.K.) Ltd. v The Miller Steamshup Co. Pty.(1967) A.C. 617 Lord Reid in delivering the judgment of the Privy Council distinguished between a real risk and a mere possibility and described a real risk as ‘one which would occur to the mind of a reasonable man … and which he would not brush aside as farfetched’. In my view the last sentence of paragraph 4 of the reamended Defence would permit the First Defendant to show by evidence that the extent of the risk involved was such as to make it far fetched or a mere possibility rather than a real risk. Accordingly the paragraph did not constitute an admission by the First Defendant that there was a real risk of fire and did not preclude the learned trial judge from finding that there was none. As regards the Second Defendant however, in the absence of any allegation against him in paragraph 6 of the Statement of Claim he cannot by silence be taken to have made an admission that there was a risk of fire. The distinction between the two Defendants may have been of some importance if the claim in negligence had been pursued against both, but only the claim in contract against the First Defendant was pursued and that Defendant, as I have indicated, was not precluded from leading evidence to show that any risk of fire was far fetched or minimal and not a real risk.

Counsel also pointed to the statements contained in paragraphs 10 (i), 10 (j) and 12 of the reamended Defence as constituting admissions as to the risk of fire and precluding the learned trial judge from finding that ‘nothing had occurred which should have alerted Mr. Roberts to even a slight risk of fire during the 5–10 minutes absence which he then anticipated as necessary to elapse before the oil could heat up to the temperature of 350°.’ Paragraph 10 (i) of the Defence was abandoned and need not therefore be considered. But even so it seems to me that the statement in that paragraph that ‘The Plaintiff knew or ought reasonably to have known that the occurrence of a flash fire in a deep fat fryer in a commencial kitchen is not uncommon’ while constituting an admission as to the fore-seeability generally of a fire, would not preclude the First Respondent from proving or the learned trial judge from finding that the risk of fire was so negligible that it did not constitute a real risk. As I have previously indicated, Lord Reid in Overseas Tankship (U.K.) Ltd. v The Miller Steamship Co. Pty(1967) A.C. 617 appears to have made a distinction between a slight risk which remains a real risk albeit slight and a risk which is so minimal that it is not a real risk and does not therefore require that any steps be taken to avoid it. Thus at p. 642 he...