Christmas v General Cleaning Contractors

December 10. Haru Jowirt. My Lords, the respondent was
a window cleaner, who had been for 20 years in the employ of
the appellant company—a company whose business it was to
contract with the occupiers of buildings for the cleaning of their
windows.

On December 8, 1948, the appellants sent the respondent to
clean the library windows of the Caledonian Club. The system
which the appellants adopted involved the window cleaner stand-
ing on the sill outside the window to clean those panes which
could not be reached from the inside. There had been some
complaint that some of the windows in the club had been
defective, in that the weights did not properly balance the sash,
with the result that the sash occasionally moved at the slightest
touch; but there had been no complaint relating to the windows
of the library.

The respondent first cleaned such part of the window as could
be reached from the inside, and then, following his employers'
usual practice, he got out on to the sill, which was only 61 inches

A.C. AND PRIVY COUNCIL.

wide and some 27 feet above the basement. Having finished
cleaning the top sash, he pushed it up, the bottom sash then
being a few inches open. It was necessary if the top sash was
to be pushed right up that the bottom sash should remain open
for two reasons: first, because this particular window was a self-
locking window, so that, if the top sash was right up and the
bottom sash right down, the window automatically locked. The
result of the window becoming locked was that it was impossible
to open it from the outside and any man standing on the sill
would thus have found himself locked out. The second reason
was even more important, because the only way in which a man
standing on the sill could support himself if the top sash was up,
was to grip the bottom edge of the top sash by putting his fingers
round it from underneath. It follows, of course, that he could
not put his fingers in this position unless the bottom sash was
open, for if the bottom sash were completely closed, then the
woodwork forming the bottom of the top sash and the woodwork
forming the top of the bottom sash would be immediately
opposite each other and there would be no space behind which
he could put his fingers. I should add that the top sash was on
the outside of the bottom sash.

Whilst the respondent was standing on the sill in this position,
the bottom sash for some reason closed, the woodwork at the
_top of the bottom sash coming down on to the fingers of the
respondent so that he lost his balance and fell, sustaining serious
injuries.

The action was originally brought by the respondent both
against the present appellants and against the club, and judgment
was given in the respondent's favour against both defendants.
The decision against the club was reversed in the Court of Appeal,
and from that decision there has been no appeal to this House.
It remains, therefore, only to consider the position as between
the workman (the respondent) and his employers (the appellants).

In the statement of claim it was alleged that the employers
were negligent in that they failed to provide hooks or safety belts
or ladders, and there was a further allegation, which was not
particularized, stating that they had failed to take any proper
precautions for the safety of their workmen.

The appellants in their defence alleged that the respondent
was himself negligent in failing to equip himself with a safety
belt, in taking no steps to wedge or secure the window, and in
taking no steps to ascertain whether it was safe to rely on the

185

H. L. (E.)
1952

GENERAL
CLEANING
CONTRACTORS
Lp.

v.
CHRISTMAS.

Earl Jowitt.

186

H. L. (E.)
1952
GENERAL
CLEANING
CONTRACTORS
Lp.

0.
CHRISTMAS.

Karl Jowitt.

HOUSE OF LORDS [1953 |

sashes of the window for handhold. They further relied on the
defence which is conveniently expressed in the maxim—volenti
non fit injuria. 7

The evidence before the trial judge made it clear that it was
the regular practice adopted by the appellants' workmen to clean
windows by standing on the sill and holding on to the woodwork
of one of the sashes of the window; and the respondent himself
stated that his real complaint was that the window was defective
in that it had not stayed in the position in which it was put. He
further stated that he had had experience when working on a
window of finding the bottom sash slowly running down, and
added that this happened more frequently in dry weather. He
stated that he had no reason to suppose that the particular
window was unsafe and he asserted that the accident would not
have occurred if the window had not been defective in that it
was improperly balanced.

A Mr. Harrington was called on behalf of the respondent. He
was an associate of the Royal Institute of Chartered Surveyors
and stated that he had investigated accidents to window cleaners
on hundreds of occasions. His evidence was that the only proper
system of window cleaning was to see that the men should wear
safety belts when standing on the sill. It is obvious that a safety
belt is of no value unless some secure hook or staple is provided
to which the safety belt can be fastened. The evidence was that
it was very rare for such hooks to be affixed to buildings and the
evidence did not suggest that there was any other safe method
of affixing hooks.

The trial judge stated in the course of his judgment that a
safety belt would have been useless, as there was nothing to
which it could have been attached, and he proceeded as follows:
'"'I find that when they [the appellants] sent the plaintiff [the
'"' respondent] to clean the windows of this club they knew that
'in the case of the windows in the library he would have to
"clean the outside of the window standing on a sill 64 inches
""wide 27 feet above the ground without any handhold except
'"' the top or bottom of one of the sashes of the window, and that
'""he might have to move that sash in the course of cleaning
'' the window, and I find also that they knew that window sashes
"do occasionally move and if they move are liable to cause the
'"hand of the cleaner to be caught between the two sashes or to
'""be knocked off the sash which he is holding. The conclusion
'that I have come to is that the system of work provided for

A.C. AND PRIVY COUNCIL.

"the plaintiff [the respondent] on this occasion was an unsafe
"system of work and that the first defendants [the appellants]
"were negligent.'' The trial judge further found that the
respondent had not himself been guilty of any contributory
negligence and that he had not expressly or impliedly agreed to
do the job at his own risk so as to make the maxim volenti non
fit injuria applicable.

In the Court of Appeal Denning L.J. thought the appellants
had failed to take proper steps to protect the respondent. '' They
'"should,'' he said,® '' have laid out the work more carefully.
'""One way would have been to do the cleaning from a ladder
"instead of from a sill. Another way would have been to ask
'the householder to allow the firm to insert hooks into the
"brickwork so as to attach a safety belt. It is said by the
"employers that these suggestions are not practicable; and that
'it is the usual thing for the men to clean windows by standing
'""on the sill. That answer does not satisfy me. If employers
"employ men on this dangerous work for their own profit, they
"must take proper steps to protect them, even if they are
"expensive. If they cannot afford to provide adequate safeguards,
'then they should not ask them to do it at all. It is not worth
""the risk. That seems to be the view of the London County
"Council, for they have made regulations forbidding a man to
'" stand or kneel on a sill adjoining a highway unless he is hooked
""on by a safety belt. At the hearing of the appeal it was
"suggested that the accident might have been avoided if the
""man had put in a block to prevent the bottom sash coming
'right down as it did. This was, in effect, a suggestion of
"contributory negligence. This was negatived by the judge, and
'"'T agree with him. You cannot blame the man for not taking
'"every precaution which prudence would suggest. It is only
'"'too easy to be wise after the event. He was doing the work
''in the way which the employers expected him to do it and, if
''they had taken proper safeguards, the accident would not have
''happened.'' I agree with Denning L.J. that there was no
sufficient ground for disturbing the finding of the trial judge and
that the respondent had not been guilty of contributory negli-
gence, but I cannot think that this consideration is sufficient to
dispose of the suggestion that a block might have been inserted.

Hodson L.J. considered that the appellants should have
provided either hooks or ladders.

'

8 [1952] 1 K.B. 141, 149, 150.

187

BL. (BB)
1952,

GENERAL
CLEANING
CONTRACTORS
Lp.

0.
CHRISTMAS.

Earl Jowitt.

188

H. L. (E.)
1952

GENERAL
CLEANING
CONTRACTORS
Lp.

v.
CHRISTMAS.

Earl Jowitt.

HOUSE OF LORDS [1953 |

Lloyd-Jacob J. put the matter on a different ground. After
stating that the only question was whether the appellants had
taken reasonable care to provide a safe system of work for their
servants, he proceeds as follows®: '' They admittedly required
'' him to stand upon a ledge 64 inches wide and 27 feet from the
'' sround with no protection from a fall other than a handhold
'' under the bottom edge of a top sash which must necessarily be
'ineffective should the lower sash become closed. If the
'suggestion [is] that alternative dispositions of the window
'* cleaner (such as on a ladder, a cradle, or held by a safety belt)
"are impracticable, a suggestion which I should not be taken as
"accepting, it would appear to be incumbent upon the employer
'to ensure that the involuntary closure of the lower sash during
"the cleaning operation was impossible. No such step was taken
'"' and the failure of the employers in this respect is, in my judg-
'"ment, a failure to take reasonable care.'"'

There was no evidence that the danger to the workman
occasioned by the use of a ladder would have been less than the
danger of standing on the sill, or that accidents were more
frequent by the adoption of the system of cleaning which involved
standing on the sill than by the use of the ladder system. It may
well be that each system has its own particular risks; and in the
absence of any such evidence the trial judge was clearly entitled
to disregard the allegation that the appellants were at fault in
not providing a ladder. Nor was it suggested in the evidence that
there was any available method of fastening the rope attached to
a safety belt except to a hook inserted into the brickwork; and
it was stated, as I have said, that it is most unusual to find such
hooks inserted in buildings in London.

It may be, in some other case, that evidence will be called
to prove that there is some other method of securing the end of
the safety belt, or indeed that there is some safer method of
cleaning windows for which no hook is available than standing
on a narrow sill, such for example as the provision of a plank
projecting on the outside of the window and in some way secured
on the inside. There was no such evidence called in the present
case.

I am not prepared to differ from the conclusion reached by the
trial judge, that the appellants were not guilty of negligence in
failing to provide hooks to which safety belts could be fastened,
or in failing to see that the work was carried out by means of a
ladder.

® [1952] 1 K.B. 141, 168.

A.C. AND PRIVY COUNCIL.

If, however, they are not liable thus to secure the safety
of their workers they are under an obligation to make the
system which they do employ reasonably safe. It is an
undoubted fact that a sash does occasionally move down at
the slightest touch and the system of work adopted by the
appellants made the worker's safety entirely dependent on
the sash not moving. It does not appear that the appel-
lants had given any instructions to their workers to test the
windows before cleaning them, or that they had applied their
minds to the provision of wedges or blocks to prevent the window
becoming closed. It is clear that any obstruction placed at the
bottom of the window would have prevented the lower sash from
closing, and would thus have avoided the jar on the fingers which
caused the respondent to let go of his hold and thus produced the
accident. That seems to have been the view of the trial judge,
and was certainly the view of Lloyd-Jacob J., and with this view
I am in agreement. I think the trial judge was entitled to find
that the appellants were to blame in not taking all reasonable
steps to see that the system of work which they required their
men to adopt was made as safe as possible.

My Lords, I am in agreement with the reasoning of the Court
of Appeal in reaching their conclusion that the maxim " volenti
""non fit injuria '' does not avail the appellants, and under these
circumstances I would dismiss the appeal.

Lorp Oaxsgy. My Lords, I agree that this appeal ought to
be dismissed.

I agree with Jones J. that it was an unsafe system of work
to employ window cleaners to work outside high self-locking
windows on a sill 64 inches wide 27 feet above ground steadying
themselves solely by a handhold without giving them any orders
to keep one sash open or any appliance to prevent both sashes
closing. I agree with your Lordships that it was not proved in
the circumstances of the present case that it was negligent not
to have provided ladders or safety belt hooks.

In my opinion, it is the duty of an employer to give such
general safety instructions as a reasonably careful employer who
has considered the problem presented by the work would give to
his workmen. It is, I think, well known to employers, and there
is evidence in this case that it was well known to the appellants,
that their workpeople are very frequently, if not habitually,
careless about the risks which their work may involve. It is, in
' my opinion, for that very reason that the common law demands

189

13 (5 BOG (80%)
1952

GENERAL
CLEANING
CONTRACTORS
Lp.

Dv.
CHRISTMAS.

Earl Jowitt.

190

H. L. (B.)
1952

GENERAL
CLEANING
CONTRACTORS
Lp.

a.
CHRISTMAS.

Lord Oaksey.

HOUSE OF LORDS [1953 |

that employers should take reasonable care to lay down a
reasonably safe system of work. Employers are not exempted
from this duty by the fact that their men are experienced and
might, if they were in the position of an employer, be able to
lay down a reasonably safe system of work themselves. Work-
men are not in the position of employers. Their duties are not
performed in the calm atmosphere of a board room with the
advice of experts. They have to make their decisions on narrow
window sills and other places of danger and in circumstances in
which the dangers are obscured by repetition.

The risk that sashes may unexpectedly close, as the sashes in
this case appear to have done, may not happen very often, but
when it does, if the workman is steadying himself by a handhold,
his fall is almost certain. If the possibility is faced the risk is
obvious. If both sashes are closed there is no longer the hand-
hold by which the workman steadies himself. If either sash is
kept open the handhold is available and, on the evidence in this
case, is, in my opinion, reasonably safe. But the problem is one
for the employer to solve and should not, in my opinion, be left
to the workman. It can be solved by general orders and the
provision of appropriate appliances. The risk is undeniable and
was not denied by the appellants' director, Mr. Mahoney (p. 159
of the appendix to the printed case, EK. F.). The risk could be
eliminated or lessened by orders that one sash must always be
kept open where the handhold system is adopted and suitable
wedges could be provided. The appellants, knowing the risk,
did nothing and have appealed to your Lordships' House with
the avowed object of having this system declared to be reason-
ably safe. In my opinion, the system as carried on by the
appellants is not reasonably safe and the appellants did not take
reasonable care to ensure that it was.

In the course of the argument questions were raised as to the
adequacy of the pleadings, and attention was called to Viscount
Simon's dictum in Colfar v. Coggins & Griffith (Liverpool) Ld.*°
that a plaintiff in such a case as the present must prove that
the system adopted is not reasonably safe and also prove what
system is safe, but, in my respectful opinion, what the noble
and learned Viscount was dealing with was the evidence which
would go to show that the system adopted was unsafe, that is
to say, by proving a possible safe system. It cannot, in my
opinion, be that as a matter of a law a plaintiff cannot succeed

10 [1945] A.C. 197, 203.

A.C. AND PRIVY COUNCIL.

191

in such a case unless he proves the particular system in which H. L. (E.)

the work can be performed safely.
However this may be, the present case had been decided on
the pleadings and evidence as they stood at the trial, no point

1952

GENERAL
CLEANING

was taken in the notice of appeal or in the printed case before Conrractors

your Lordships' House upon the pleadings, and the absence of
the very element in the system the provision of which, in my
Opinion, ought to have been adopted was alleged by the appel-
lants as evidence of contributory negligence. For these reasons
I think the appeal should be dismissed.

Lorp Reip.. My Lords, it appears that it has for long been
the general practice of window cleaners to clean the outsides of
ordinary two-sash windows while standing on the window sill
outside the window. When the sill is narrow, as it often is, the
window cleaner must have something to hold on to, and it is
unusual for there to be anything for the cleaner to grasp except
part of the window itself. If the window is completely closed
there is nothing to grasp, but if either the top or bottom sash is
even slightly open there is room for the cleaner to insert his
fingers between the wooden bar which forms the bottom of the
top sash and the panes of glass in the lower sash. It might
seem that, even with this hold, the cleaner's position is precarious
and unsafe, but the evidence in this case is not to that effect. A
window cleaner with this hold does not appear to be in greater
danger than men who work in many other trades in exposed
places high above the ground with apparently little to assist them
to keep their balance. But a peculiar danger in window cleaning
arises from the fact that sometimes a sash moves down unex-
pectedly so as to deprive the man of his hold, and the evidence
shows that it is not very uncommon for this to happen and to
cause a serious accident. The respondent in this case was
severely injured by an accident of this kind.

The main case made for the respondent in his pleadings and

at the trial was that this method of cleaning windows is in itself .

so unsafe that a master who requires his servants to adopt it is
in breach of his duty to provide a safe system of working. Two
other methods of doing this kind of work were advocated. In the
first place it was said that it could be done by men standing on
ladders. It was proved that it would have been practicable and
reasonably safe to use this method to clean the outside of the
window where this accident happened: this window was on the
first floor. But there was no evidence about the general

Lp.
0.
Path ele

Lord Oak Oaksey.

192

Hi LL. (E.)
1952

GENERAL
CLEANING
CONTRACTORS
Lp.

v.
CHRISTMAS.

Lord Reid.

HOUSE OF LORDS [1953 |

applicability of this method, and it seems fairly obvious that it
would not be practicable in a large number of cases. The main
objection to using it where it is practicable is that it takes longer
and is more expensive to clean windows in this way than by
standing on the sill. The other method advocated is to support
the man on the sill by a safety belt. Such a belt must be
attached to two hooks—one on either side of the window—and
these hooks must be firmly attached to the building so as to
support his whole weight if he slips. It was not disputed that,
to get sufficient strength, the shaft of the hook must be driven
right through the wall of the building from the outside and then
anchored in some way on the inside of the wall: No evidence
was led about the cost or difficulty of doing this, but it is plainly
an operation which could not be carried out by a window cleaner,
and, if this is to be the only alternative to using ladders, I think
that I must assume that vast numbers of these hooks would be
needed: the evidence shows that such hooks have only been
provided in a very small proportion of existing buildings. The
evidence is that even where hooks are available the men generally
do not use them.

A plaintiff who seeks to have condemned as unsafe a system
of work which has been generally used for a long time in an
important trade undertakes a heavy onus: if he is right it means
that all, or practically all, the numerous employers in the trade
have been habitually neglecting their duty to their men. The
evidence in this case appears to me to be quite inadequate to
establish either that the window sill method is so inherently
dangerous that it cannot be made reasonably safe by taking
proper precautions, or that the ladder method or the safety belt
method are as a general rule reasonably practicable alternatives.

That brings me to what I have found to be the most difficult
part of the case. The evidence does prove that the window sill
method is often dangerous if no precautions are taken, and in
this case no precautions were taken; and if the respondent is to
succeed it must, I think, be on the ground that it was the duty
of the appellants to devise for the window sill method a proper
system of precautions and instruct their servants to follow that
system, and that, if they had done so and their orders had been
obeyed, this accident would, or at least would probably, have
been prevented. No such case is made in the pleadings and no
attempt was made to prove it at the trial. The best that ean be
said is that the pleadings can perhaps be read so ag not to

A.C. AND PRIVY COUNCIL.

exclude it, and there are a number of bits of evidence which, if
eked out with common knowledge, lend support to it. I would
not think it proper or fair to the appellants to consider this case
were it not for the fact that the appellants' counsel in effect
asked us to treat the case as a test case and enlighten employers
in the trade as to their duty. In the circumstances I think that
I can properly consider this case on such evidence as there is to
support it.

The need to provide against the danger of a sash moving
unexpectedly appears to me to be so obvious that, even if it
were proved that it is the general practice to neglect this danger,
I would hold that it ought not to be neglected and that precau-
tions should be taken. It is at this point that lack of evidence
causes difficulty, for there is no evidence as to what would be
reasonably practicable or effective precautions. But I cannot
believe that there would be any great difficulty in devising a
simple method of preventing the lower sash from closing. I do
not know what the best method would be. Generally the
plaintiff ought to put forward some method which can be tested
by evidence. But in this case I am assisted by the fact that the
appellants in their defence allege negligence against the respon-
dent '*. . . (b) if he knew of the said defect, [the tendency of
"this window to move easily] in taking no or no adequate steps
""to wedge or secure the said window; (c) if he did not know of
""the said defect, in taking no or no adequate steps to ascertain
"" whether it was safe to rely on the sashes of the said window for
'"handhold.'' This is in line with the impression which I get from
the evidence, that a simple test would show whether a sash is
loose or not and that if it moved at all easily it could be wedged
or something could be placed across the window sill which would
prevent the sash from closing fully. It does appear from the
evidence that very simple tests after the accident showed that
this sash was loose and ran down very easily. I think that this
ought to have been discovered before the accident, and I think
that I am entitled to assume that if it had been discovered some
simple and effective precaution could have been taken. But I
must confess that even in this case I make this assumption with
some reluctance in the absence of evidence and I would not be
prepared to do so in a less clear case.

The question then is whether it is the duty of the appellants
to instruct their servants what precautions they ought to take
and to take reasonable steps to see that those instructions are
carried out. On that matter the appellants say that their men

193

HAL. (BS
1952

GENERAL
CLEANING
CONTRACTORS
Lp.

v.
CHRISTMAS.

Lord Reid.

194

Ec Mee 68 |
1952

GENERAL
CLEANING
CONTRACTORS
Lp.

0.
CHRISTMAS.

Lord Reid.

HOUSE OF LORDS [1953 |

are skilled men who are well aware of the dangers involved and
as well able as the appellants to devise and take any necessary
precautions. That may be so but, in my opinion, it is not a
sufficient answer. Where the problem varies from job to job it
may be reasonable to leave a great deal to the man in charge,
but the danger in this case is one which is constantly found, and
it calls for a system to meet it. Where a practice of ignoring an
obvious danger has grown up I do not think that it is reasonable
to expect an individual workman to take the initiative in devising
and using precautions. It is the duty of the employer to consider
the situation, to devise a suitable system, to instruct his men
what they must do and to supply any implements that may be
required such as, in this case, wedges or objects to be put on the
window sill to prevent the window from closing. No doubt he
cannot be certain that his men will do as they are toid when they
are working alone. But if he does all that is reasonable to
ensure that his safety system is operated he will have done what
he is bound to do. In this case the appellants do not appear to
have done anything as they thought they were entitled to leave
the taking of precautions to the discretion of each of their men.
In this I think that they were in fault, and I think that this
accident need not have happened if the appellants had done as
I hold they ought to have done. I therefore agree that the appeal
should be dismissed.

Lorp Tucker. My Lords, the plaintiff's claim in this action,
so far as the first defendants (the present appellants) are con-
cerned, was based upon an alleged failure to take reasonable care
to provide a reasonably safe system of work for the plaintiff, who
was engaged on their behalf with one other in cleaning the
windows of the Caledonian Club in London. It is perhaps more
accurate to say that this is what he had to prove in order to
succeed, because para. 3 of his statement of claim alleged a
breach of duty '' to provide a safe system of work and effective
"supervision of the said cleaning'' or negligence in certain
specified respects. This form of action is frequently spoken of
as being based on "' a failure to provide a safe system of work,''
but this language is misleading since it omits what is an essential
element in the cause of action, viz., negligence. Window clean-
ing is obviously a hazardous operation and—except in the case
of the absolute obligations imposed in certain circumstances
under the Factory Acts—there is no absolute obligation upon
employers to devise a system for their employees which will be

A.C. AND PRIVY COUNCIL.

free of risk. Their only duty is to take reasonable steps to provide
a system which will be reasonably safe, having regard to the
dangers necessarily inherent in the operation. In deciding what
is reasonable, long-established practice in the trade, although not
necessarily conclusive, is generally regarded as strong evidence
in support of reasonableness.

It was said by Goddard L.J. in the Court of Appeal and by
Viscount Simon in this House in the case of Colfar v. Coggins
& Griffith (Liverpool) Ld." that in these cases the plaintiff must
allege and prove specifically what is the defect in the system of
which he complains. In other words, it is not sufficient that
the system adopted was in fact unsafe, he must show something
which could reasonably have been done or omitted which would
have made the system reasonably safe and that this failure was
the cause of his accident. t

In the present case the plaintiff went to trial relying on two
specific allegations, viz. (1) the failure to supply safety belts and
hooks to which they could be attached; (2) the failure to supply
ladders. He called as a witness in support of his case a chartered
surveyor who had inspected the window in question. He was
allowed, without objection, to give '' expert '' evidence—based
upon his experience gained from giving evidence in similar cases
—to the effect that the "' proper '' method was to use safety belts.
He agreed, of course, that unless proper attachments were fixed
to the building such a method was useless and that in the absence
of such attachments, which were very rarely found on buildings,
it was customary in the trade for windows to be cleaned from
the sill by handhold as in the present case. He said nothing
about the use of ladders, and in fact there was very little evidence
in the case as to the circumstances in which ladders are used in
the trade.

The plaintiff stated that ladders were only used on this build-
ing for those windows which could not be opened. He had had
more than 20 years' experience of window cleaning but gave no
evidence as to when it is customary to use ladders for external
cleaning.

Ladders were referred to in three places in the defendants'
evidence. At p. 121 of the appendix to the printed case at G,
Mr. O'Gorman, the defendants' manager, was asked, in cross-
- examination: '' Do you ever consider the provision of ladders
''for your men, for such windows where there are no hooks for

11 (1948) 76 Lil.L.Rep. 1, 4 (C.A.); [1945] A.C. 197, 203.

195

H. L. (£.)
1952

GENERAL
CLEANING
CONTRACTORS
Lp.

0.
CHRISTMAS.

Lord Tucker.

196

H. L. (B.)
1952

GENERAL
CLEANING
CONTRACTORS
Lp.

0.
CHRISTMAS.

Lord Tucker.

HOUSE OF LORDS [1953 |

"safety? '' He answered: '' Not unless they are all windows
'""which require the use of ladders. With an ordinary window
'"' with what is a reasonably safe sill to stand on, we allow him
"to clean it in that fashion."

At p. 146 at B the following appears in the cross-examination
of Mr. Mahoney, a director of the defendant company. Q. "' On
'that view, it is possible to send a lorry with two or three ladders
'"and cleaners for each ladder.'' <A. '' Yes, but we would not get
""a job.'' Q. '' Why not?'' <A. '' We would have to price our
''job according to whether long or short ladders..." Q.
"" Would you agree that it would be much safer on a high building
'""to clean the windows by ladder than by putting men up on the
'sills with no safety belts and no hooks?'' A. "I agree, but
"" we do not price for a job with long ladders if it is not necessary.
""Tf the windows call for long ladders all our competitors . . .''
At p. 147, dealing with the report which had been made when the
building was inspected prior to the contract for periodical cleaning
and what such report should have contained, he was asked at HE:
Q. '' And accordingly that this was a building where safety belts
"" or ladders were essential for safety?'' A. '' No.'' Q. '' No?"
A. " Because these windows are sash windows opening in the
"normal way, and any window cleaner sent, even with long
"ladders, will still go and clean them by standing outside on the
""sill.'' There were clearly matters in this evidence which might
have been further investigated. So far from this being done the
witness was interrupted at vital points and the position with
regard to the circumstances in which ladders are customarily
used and the comparative safety and cost of the different methods
was never investigated.

In this state of the evidence Jones J., the trial judge, said:
'""It is conceded that the first defendants did not provide the
'"' plaintiff with any ladder and that, though he might have
'" equipped himself with a safety belt provided by them, such a
"" belt would have been useless as, to the knowledge of the first
'" defendants, there was no hook or other place to which the
'belt could have been attached. It is not suggested that the
"first defendants provided any other safety apparatus, and I find
'"that when they sent the plaintiff to clean the windows of this
"club they knew that in the case of the windows in the library
'""he would have to clean the outside of the window standing on
"a sill 6} inches wide 27 feet above the ground without any
'"handhold except the top or bottom of one of the sashes of the

A.C. AND PRIVY COUNCIL.

'"" window, and that he might have to move that sash in the course
"of cleaning the window, and I find also that they knew that
" window sashes do occasionally move and if they move are liable
"to cause the hand of the cleaner to be caught between the
"two sashes or to be knocked off the sash which he is holding.
" The conclusion that I have come to is that the system of work
" provided for the plaintiff on this occasion was an unsafe system
"of work and that the first defendants were negligent, as is
"alleged in para. 3 of the statement of claim."'

Now, I do not read this as amounting to a condemnation of
the defendants' system on the ground of failure to supply safety
belts or ladders which were the issues on which the parties had
gone to trial, but as a finding that in the absence of ladders or
safety belts the defendants should have done something else. The
question at once arises: What precisely should they have done
and where was the evidence about it? These cases must be
decided upon evidence and the evidence should be confined to
the specific allegations in the pleadings so that defendants can
know what is the case with which they have to deal before their
system is condemned. In the present case they asked for further
and better particulars, under para. 3 (c) of the statement of
claim, '' of the allegation that the defendants failed to supply
"proper or safe apparatus by specifying what apparatus the
"* defendants should have supplied but did not.'' The particulars
delivered were as follows: '' The plaintiff says that as the defen-
""dants failed and neglected to provide or see that any of the
"apparatus specified under (a), (b) and (c) of this paragraph
'' [which related to safety belts and ladders] was provided it was
"the duty of the defendants to provide some other proper or safe
'' apparatus for the purpose but such other apparatus is unknown
"to the plaintiff.'' The nature of this further apparatus was not
elucidated by the evidence at the trial nor was it specified by the
learned judge. In this connexion it must, however, be noted that
in para. 8 (d) of the statement of claim there was a general
allegation that the defendants had '' failed to take any or any
'' proper precaution for the safety of the plaintiff.'' Further
particulars of this allegation were not asked for.

In the Court of Appeal Denning L.J. upheld the judgment on
the ground of failure to use ladders or to ask the owner of the
premises to allow the defendants to insert hooks into the brick:
work so as to attach a safety belt. Hodson L.J. took the same
view and so interpreted the judgment of Jones J. Lloyd-Jacob J.,

A.C. 1953. 13

197

H. L. (B.)
1952

GENERAL
CLEANING
CONTRACTORS
Lp.

Us
CHRISTMAS.

Lord Tucker.

198

is aly (toe)
1952

GENERAL
CLEANING
CONTRACTORS
BD.

v.
CHRISTMAS.

Lord Tucker.

HOUSE OF LORDS [1953 |

who was the third member of the Court of Appeal, said ?: "' If
'' the suggestion [is] that alternative dispositions of the window
'" cleaner (such as those on a ladder, a cradle, or held by a safety
''belt) are impracticable, a suggestion which I should not be
'' taken as accepting, it would appear to be incumbent upon the
''employer to ensure that the involuntary closure of the lower
''sash during the cleaning operation was impossible. No such
'" step was taken and the failure of the employers in this respect
'is, in my judgment, a failure to take reasonable care."'

My Lords, I am quite unable to accept the proposition that
it was reasonably practicable for the defendants to insist on being
allowed to insert hooks into the brickwork of the building. They
would have no right to do so without permission and to insert and
properly secure the number of hooks required for the windows of
a building of this size would be an undertaking quite beyond
what could reasonably be expected of a firm of window cleaners.
There was no evidence that any window cleaners had ever
undertaken such a task.

With regard to ladders, the evidence was not, in my opinion,
sufficient in this case to justify a finding against the defendants
based upon their failure to supply ladders for the particular
operation upon which the plaintiff was engaged.

Such being the position with regard to the matters pleaded
and relied upon in evidence at the trial, can the judgment in
favour of the plaintiff be upheld?

My Lords, I have felt considerable doubt on this matter. It
is true that in some cases there may be precautions which are
so obvious that no evidence is required on the subject, but in a
case like the present it is eminently desirable before condemning
a system in general use that it should be clearly established by
evidence that some other and safer system is reasonably prac-
ticable and that its adoption would have obviated the particular
accident which has occasioned damage to the plaintiff. The
provision of a block or wedge for insertion in defective windows
would not, on the plaintiff's evidence, have prevented this
accident, since he had not discovered that the window in question
was in any way defective and accordingly would have had no
occasion to use the wedge, unless he had been instructed that
wedges must be used in all windows of this type whether defective
or not.

Notwithstanding my doubts I am not prepared to dissent from

'

12 [1952] 1 K.B. 141, 158.

A.C. AND PRIVY COUNCIL.

199

the view that the operation of cleaning this particular type of H. L. (E.)

self-locking window from a sill 64 inches wide was so dangerous
that it was incumbent upon the defendants to ensure that the
closure of the lower sash would be impossible before any employee
was allowed to clean such windows from the sill by the hand-
hold method. In fact, the defendants' inspection of the premises
had not even revealed the existence of this self-locking device and
consequently they had given no special instructions or taken any
other step to minimize what should have been a very obvious
peril. This was, I think, the basis of the judgment of Lloyd-
Jacob J., and on this ground—and this ground alone—I agree
that this appeal should be dismissed.

I desire to add that, in my opinion, there is nothing in this
case to justify the inference that in all circumstances the cleaning
of windows from the sill by the handhold method is always to be
condemned as constituting a breach of the duty to take reason-
able care to provide a reasonably safe system of work. On the
other hand, this case does illustrate the necessity for planning
the work on a job of this kind and adopting a system appropriate
to the different types of window and sill which may have to be
dealt with, having regard to the tendency of windows to stick or
'""creep '' in varying weather conditions even if they may not be
"" defective '' for ordinary purposes.

Appeal dismissed.