[1954] 1 W.L.B.

835

[COURT OF APPEAL.]

*WATT

v.

HERTFORDSHIRE

COUNTY COUNCIL.

[1952 W. No. 1451.]

Negligence Safe system of work Fireman Fireman injured while
travelling to emergency in vehicle with unlashed jack Necessary
riskObject of saving life or limb justifying taking of abnormal
risksStandard of duty of employers.
Fire Brigade. Volenti non fit injuria.
A fireman was injured by lifting-gear while travelling in a lorry
not specially fitted for carrying the gear to an emergency where a
woman was trapped under a heavy vehicle :
Held, that though the fire authorities were under a duty to
provide proper appliances and to take reasonable care to avoid
exposing their firemen to unnecessary risks, they were not negligent
in requiring the firemen to take abnormal risks which they were
ready to take in order to save life and limb.
Per Denning L.J. In balancing the risk against the measures
necessary to eliminate it, the risk must be balanced against the end
to be achieved.
Dictum of Asquith L.J. in Dabom v. Bath Tramways Motor Co.
Ld. [1946] 2 All E.R. 333, 336, approved.
Decision of Barry J., ante, 208; [1954] 1 All E.R. 141 affirmed.
APPEAL from Barry J .
Since 1939 the plaintiff had been employed by t h defendants,
the local fire authority, as a fireman at Watford fire station. On
July 27, 1951, the plaintiff was on duty at the fire station when
an emergency call was received t h a t a woman was trapped
under a heavy vehicle about 20O or 300 yards away. The subofficer in charge immediately left the station in a pump-escape
vehicle, but before going he gave instructions t h a t the plaintiff's
t e a m should follow him to the scene of the accident transporting
with t h e m in a Fordson lorry heavy lifting gear, namely a
large jack standing on four small wheels and weighing about
two or three hundredweight.
The jack was loaded into the
back of the lorry and was accompanied by the plaintiff and two
other firemen who steadied the jack. The lorry had a plain
floor and sides and there was nothing to which the jack could
have been lashed. Shortly after the lorry had left the fire station
the driver had to apply the brakes suddenly; all three men were
thrown off their balance, the m e n steadying the jack were unable
to hold it, and it slewed forward, catching the plaintiff's ankle
and causing him serious injures.
Three vehicles were in regular use at the fire station, a p u m p escape and a water tender, which were both unsuitable for the
carriage of the jack, and an Austin tender which was used as an
emergency tender and which was properly equipped for the
carriage of the jack, and in which it could be properly secured.
The Austin tender was p u t to other uses and was out of the

C. A.
1954
May 6, 7.
Singleton,
Denning and
Morris L.JJ.

836

T H E W E E K L Y LAW E E P 0 E T 8

C. A.
1954
WATT

v.
HERTFORDSHIRE
COUNTY
COUNCIL.

MAY 28, 1954

station and not available for the carriage of the jack during
about 30 hours in the week; at the time that the emergency call
was received it was not in the station. The Fordson lorry on
which the jack was carried on July 27, 1951, was not one of the
regular vehicles used by the fire authority at the Watford station,
but had been lent to the station for the transport of training
equipment only a few days before the plaintiff's accident. Emergency calls other than fire calls were fairly frequent at the fire
station, but it was rare for the heavy jack to be required, and in
the normal course, if the jack was required when the Austin
tender was not available to carry it, another station would be
notified and would answer the call. On the occasion in question
it would have taken at least ten minutes for assistance to arrive
from the nearest fire station.
The plaintiff claimed that the defendants, his employers,
were negligent in that they (a) failed to load or secure the jack
in such a way that it could not become dislodged; (b) loaded the
jack in such a way that they knew or ought to have known
it was likely that if the lorry pulled up suddenly the jack
would become dislodged and cause injuries to any person riding
on the back of the lorry; (c) permitted and/or caused the
plaintiff to ride on the back of the lorry on to which the jack
had been loaded; (d) caused or permitted the jack to be transported on the lorry which, as the defendants knew or ought
to have known, was not provided with clips, straps, or other
suitable means to secure it; (e) failed to provide any or any
adequate supervision of the loading of the jack on to the lorry;
and it was claimed that the plaintiff's accident was due to negligence and that he was entitled to recover damages against the
defendants.
Barry J., on December 16, 1953, gave judgment in favour
of the defendants, holding that it was not shown that they had
been guilty of any negligence towards the plaintiff or towards
their other employees.
G. G. Baiter Q.G. and H. B. Grant for the plaintiff.
Lord Hailsham Q.C. and Roland Brown for the defendants.
The cases referred to in argument are cited in the judgment of
Singleton L.J.
SINGLETON L.J. stated the facts, and continued: I am in
complete agreement with the judgment of Barry J. 1 but it is
right that I should state my reasons for having formed that
opinion.
The fire service is a service which must always involve risk
for those who are employed in it, and, as Mr. Baker on behalf
of the plaintiff pointed out, they are entitled to expect that their
i [1954] 1 W.L.E. 208; [1954J 1 All E.B. 141.

887

[1954] 1 W . L . E .

equipment shall be as good as reasonable care can secure. An

emergency arose, as often happens. The sub-officer who had
given the order, was asked in re-examination: '' From your point
" of view you thought it was a piece of luck, with this unfor" tunate woman under the bus, that the Fordson was available
" and you could use it? (A.) Yes. It is recognized in the
" service that we use our initiative at all times, and in doing so
" any reasonable step you take is considered satisfactory if it I S
" a question of saving life. You have to make a sudden decision."
It is not alleged that there was negligence on the part of any
particular individual, nor that the driver was negligent in driving
too fast, nor that the sub-officer was negligent in giving the order
which he did. The case put forward in this court is that as the
defendants had a jack, it was their duty to have a vehicle fitted
in all respects to carry that jack, from which it follows, I suppose,
that it is said that there must be a vehicle kept at the station
at.all times, or that if there is not one the lifting jack must not
be taken out; indeed, Mr. Baker claimed that in the case of a
happening such as this, if there was not a vehicle fitted to carry
the jack the sub-officer ought to have telephoned to the fire
station at St. Albans and arranged that they should attend to
the emergency. St. Albans is some seven miles away, and it
was said that an extra ten minutes or so would have elapsed if
that had been done. I cannot think that that is the right way
to approach the matter. There was a real emergency; the woman
was under a heavy vehicle; these men in the fire service thought
that they ought to go promptly and to take a lifting jack, and
they did so. Most unfortunately this accident happened.
What is the duty owed by employers? It has been stated
often, and never more clearly than it was by Lord Herschell in
Smith v. Baker & Sons,2 in these words: " It is quite clear that
" the contract between employer and employed involves on the
" part of the former the duty of taking reasonable care to provide
" proper appliances, and to maintain them in a proper condition,
" and so to carry on his operations as not to subject those
" employed by him to unnecessary risk."
The employee in this case was a member of the fire service,
who always undertake some riskbut, said Mr. Baker, not this
risk. Is it to be said that if an emergency call reaches a fire
station the one in charge has to ponder on the matter in this
way: " Must I send out my men with the lifting jack in these
" circumstances, or must I telephone to St. Albans, seven miles
" away, to ask them to undertake the task? " I suppose he must
think about his duty; but what would a reasonable man do,
faced as he was? Would the reasonably careful head of the
station have done anything other than that which the subofficer did? I think not. Can it be said, then, that there is a
duty on the employers here to have a vehicle built and fitted to
2 [1891] A.C. 325, 362; 7 T.L.E. 679.

C. A.
1954
WATT

v.
HBHTFOUDSHIRB
. COUNTY
COUNCIL.
Singleton L . J .

T H E W E E K L Y LAW KEPOETS

838
C. A.
1954
WATT

u.
HERTFORDSHIRE
COUNTY
COUNCIL.

Singleton L.J.

MAY 28, 1954

carry this jack at all times, or if they have not, not to use the
jack for a short journey of 200 or 300 yards ? I do not think that
that will do.
Asquith L.J., in Daborn v. Bath Tramways Motor Co. Ld.,
said 3 : " I n determining whether a party is negligent, the
" standard of reasonable care is that which is reasonably to
" be demanded in the circumstances. A relevant circumstance
" to take into account may be the importance of the end to be
" served by behaving in this way or in that. As has often been
" pointed out, if all the trains in this country were restricted
" to a speed of five miles an hour, there would be fewer accidents,
" but our national life would be intolerably slowed down. The
" purpose to be served, if sufficiently important, justifies the
" assumption of abnormal risk."
The purpose to be served in this case was the saving of life.
The men were prepared to take that risk. They were not, in
my view, called on to take any risk other than that which
normally might be encountered in this service. I agree with
Barry J. that on the whole of the evidence it would not be
right to find that the employers were guilty of any failure of the
duty which they owed to their workmen. In my opinion the
appeal should be dismissed.
DENNING L.J. It is well settled that in measuring due care
you must balance the risk against the measures necessary to
eliminate the risk. To that proposition there ought to be added
this: you must balance the risk against the end to be achieved.
If this accident had occurred in a commercial enterprise without
any emergency there could be no doubt that the servant would
succeed. But the commercial end to make profit is very different
from the human end to save life or limb. The saving of life or
limb justifies taking considerable risk, and I am glad to say
that there have never been wanting in this country men of
courage ready to take those risks, notably in the fire service.
In this case the risk involved in sending out the lorry was
not so great as to prohibit the attempt to save life. I quite
agree that fire engines, ambulances and doctors' cars should not
shoot past the traffic lights when they show a red light. That
is because the risk is too great to warrant the incurring of the
danger. It is always a question of balancing the risk against
the end. I agree that this appeal should be dismissed.
MORRIS L.J. I also agree. The accident in this case came
about as a result of a somewhat unusual concatenation of
circumstances. There had for a very long time been no call for
the use of the jack. Any such call, according to the evidence,
was extremely rare. It so happened that a call came at a time
when the Austin vehicle which would normally have carried the
[1946] 2 All E.E. 333, 336.

839

[1954] 1 W.L.E.

jack was otherwise engaged. I do not think it can be said to have

been unreasonable to have had the Austin vehicle for use in the
way that was arranged. Had the station been a larger station,
had there been unlimited resources, unlimited space and an
unlimited number of vehicles, it might be that another fitted
vehicle would have been available; but that was not reasonably
.practicable or possible. What happened was that when the call
for the jack came the sub-officer had to decide what to do, and I
do not think that it would have been in accordance with the
traditions of the wonderful service with which we are concerned
if he had said that he could do nothing other than call on St.
Albans. What he decided to do was in accordance with the
practice of the fire service.
I would refer also to what the assistant chief officer in the
London Fire Brigade said in regard to this matter. He spoke
about the provision of jacks, and pointed out that in London there
are 29 sets of lifting gear, one being provided for every two
stations, and then this passage occurs: " Can you always under" take that that one vehicle will be available for the transport
"of a jack? (A.) No. (Q.) In your view is it reasonably
" practicable for a fire service to adapt all of its vehicles for the
'' transport of jacks? (A.) No, I would not think it was reason" able. (Q.) You have been a station officer, have you not?
" (A.) I have. (Q.) Supposing you found yourself in charge of a
" station, and supposing the equipment available was not that
" most suitable for the purpose, but you found that human life
" was in danger and you might save it by adopting a method not
" entirely suitable, what, in your view, would be your duty as a
" station officer? (A.) I have had that experience, and I did
" not hesitate to get the equipment there as quickly as possible."
As I have said, I think this sub-officer acted in accordance
with the traditions of the service, and I cannot for one moment
think that the employers can be held responsible as having failed
in the performance of their duties. I agree that the appeal fails.
Appeal dismissed.
Leave to appeal to the House of Lords refused.
Solicitors: Denis Hayes for F. S. Ellis & Co., Watford;
Berrymans.
M. M. H.

C. A.
]954
WATT

v.
HERTFORDSHIRE
CODNTY
COUNCIL.

Morris L.J.