Harris v Worrell et Al
| Jurisdiction | Barbados |
| Judge | Rocheford, J. |
| Judgment Date | 09 December 1983 |
| Neutral Citation | BB 1983 HC 85 |
| Docket Number | No. 1008 of 1981 |
| Court | High Court (Barbados) |
| Date | 09 December 1983 |
High Court. (Civil Jurisdiction)
Rocheford, J. (Ag.)
No. 1008 of 1981
Mr. E.L. Hinds and Mr. E. Jackman of Messrs. Peter Evelyn & Co. for the plaintiff.
Mr. M.O. Pierce for the first defendant.
Mr. E.D. Mottley, Q.C., and Mr. L. Haynes for the second defendant.
Tort - Damages — Personal injury
On the 7th June, 1981 the plaintiff, a child then about 3 1/2 years old, was on the public highway known as No. 2 Bird River Gap, Deacons Road in the parish of St. Michael, when a portion of a guard wall or fence immediately adjoining the said highway collapsed and fell on her, knocking her to the ground and causing her serious injury. The guard wall was situated at the front of a house. These premises were owned by the first defendant and tenanted by the second defendant. The plaintiff, acting through her mother and next friend claims damages against the first and second defendants jointly and severally, founding her action in nuisance and/or negligence.
The first defendant denies negligence and nuisance and pleads the negligence of the plaintiff, alternatively trespass by the plaintiff. The second defendant also denies negligence and nuisance and claims an indemnity and/or contribution by the first defendant.
The plaintiff in reply denies that she was guilty of negligence or trespass and that if she did trespass on the premises, both defendants owed her a duty of common humanity.
Evidence for the plaintiff was given by her next friend, two eyewitnesses and a surgeon. Evidence was also given by the defendants. I have made the following findings. The wall was in a state of disrepair and dangerous. The second defendant knew that it was dangerous. There were no warning signs. The persons on the highway at the time of the accident were the plaintiff, a male friend of her mother and a lady who was employed at premises situated on that highway. The gentleman was walking in the same direction as the plaintiff, on the opposite side of the road from the wall and a little ahead of the plaintiff. The plaintiff was neither playing on the highway nor trespassing on the premises of the defendants. The lady was walking in the opposite direction, towards the plaintiff. As the plaintiff was alongside the wall it fell on to her.
The case of Tarry v. Ashton (1876) 1 Q.B.D. 314 enunciated the principle that if the occupier of premises adjoining a highway knows that a structure is dangerous, he will be liable for damage caused by its fall on to the highway. Accordingly I find the second defendant, occupier, liable in damages to the plaintiff for the injury caused to the plaintiff by this public nuisance.
With respect to the first defendant, landlord she said in answer to counsel for the second defendant — “I paid for repairs to the house. It came out of the rent. Mr. Blackman is in charge.” In answer to counsel for the plaintiff she said — “I expected Mr. Blackman to look after repairs to the wall for he had done so to the house, a window broken by a neighbour. Mr. Blackman could have done it, he had the money and could do that.”
There is also the evidence of the second defendant in answer to counsel for the plaintiff, which evidence I have accepted — “Mr. Blackman told me that I should not have fixed the window, I should have left it for him.”
I find that the first defendant impliedly reserved the right to enter on and view the premises and do all necessary repairs and that through her agent Mr. Blackman she did effect repairs to the premises. It was held in Heap v. Ind Coope and Allsopp [1940] 3 All E.R. 634 that a landlord is liable in damages to a person injured while proceeding along a highway if he has expressly reserved the right to enter on and view the premises and do all necessary repairs. There the right was expressly reserved. Here I find that it was impliedly reserved. The words of Lord Somerville in Mint and Another v. Good [1950] 2 All E.R. 1159 at page 1162 are relevant –
“Counsel for the defendant referred to those words, ‘the landlord has expressly reserved to himself’. It seems to me that the same principle must apply if a landlord has reserved to himself the right, whether he has done so impliedly or expressly. I can't envisage any principle by which a landlord should be in one position in the case of an express reservation and in a different position in the case of an implied reservation.”
Accordingly I find the first defendant liable in damages to the plaintiff for the injury caused to the plaintiff by this public nuisance.
Counsel for the second defendant submitted that, for the business efficacy of this contract, there was an implied agreement by the first defendant to indemnify the second defendant against this civil liability. He referred to the judgment of Lord Somerville in Mint and Another v. Good, already cited in this judgment, at page 1163 which reads as follows,
“It seems to me...
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