The Courts of Appeal

The basin had the usual arrangements for getting rid of the water, namely, a vent-hole provided with a plug at the bottom of the basin and holes situated near its upper edge to act as an overflow. Through these holes the overflowing water passed down a pipe which connected with the waste-pipe from the hole at the bottom of the basin, some little distance below its upper end.

It was common ground that the basin and fittings above described were of ordinary construction and such as are in common use, and it was proved that on their erection they had been inspected and passed by the officials of the Metropolitan Board of Works in the regular way. The lavatory was intended for the use of the tenants of the upper floors and persons in their employment. The defendant employed one Smith as a caretaker of the building, and part of his business was to see that the lavatory was in good working order. On August 18, 1909, he was on duty until 10.20 P. M.

He gave evidence that at that hour he went to the lavatory and found it in proper order. On the plaintiff arriving on the premises the following morning he found that his stock in trade there (which consisted mainly of school-books) was seriously damaged by water, and on examination it was discovered that the water tap of the basin had been turned full on and the waste-pipe plugged so that there had been an overflow from the basin to the extent of the full supply which the tap was capable of giving, and that this overflow had flooded the rooms below.

There was no direct evidence as to the length of time that the water had been running in this way, but the extent of the overflow was so great that it seems to have been accepted by all parties at the trial that it must have continued for some hours. It was for the damage thus caused to the plaintiff's stock in trade that the action was brought.

On examining the basin it was found that the waste-pipe had been plugged up with various articles, such as nails, penholders, string, and soap, and that the obstruction was situated so far down the pipe that it covered its junction with the waste-pipe from the overflow holes. It therefore blocked both waste-pipes. The manner in which the plugging was effected furnished strong evidence that it had been intentionally done; indeed, the materials had been so tightly rammed together that it was difficult to clear the pipe.

For the purposes of the trial the capacity of the waste-pipes for carrying off the water which the tap was capable of supplying was tested after the pipe had been cleared. It was found that at the ordinary pressure of the system during the daytime the waste-pipes were able to carry off all the water which the tap could supply even when fully open, but that during the night the pressure rose somewhat and that at the night pressure the waste-pipes were not sufficient to take off the whole of the water which the tap could supply.

The plaintiff gave no evidence to shew what fraction of the water which the tap was capable of so supplying during the night would fail to pass away by the waste-pipes if they were clear and unobstructed, but it would seem probable that the amount of the overflow in such circumstances would only be a comparatively small fraction of the water issuing out of the tap and that the major portion would pass off by the waste-pipes.

In his plaint the plaintiff claimed to recover the damage done to his stock in trade as injury caused by water through the carelessness of the defendant, his servants or agents, in the construction, maintenance, management, and control of the lavatory basin and its pipes, &c. , and alternatively as injury arising from a breach by the defendant of an implied covenant for quiet enjoyment.

At the trial he was permitted to add a third alternative whereby he claimed to recover such damage as injury caused by the defendant wrongfully permitting large quantities of water to escape from the said basin and to flow into the premises occupied by the plaintiff. By his defence the defendant denied the allegations of negligence, covenant, and duty, and further denied that if any such covenant existed there had been any breach of it. At the trial evidence was called on both sides and the above facts were proved.

The claim upon implied covenant was obviously unsustainable and was apparently abandoned. The substantial case sought to be made on behalf of the plaintiff was twofold – first, that Smith (for whose actions the defendant was responsible) was guilty of negligence in leaving the tap turned on and in omitting to discover that the waste-pipe was choked; and, secondly, that the defendant was guilty of negligence in not placing a lead safe with an outlet pipe on the floor of the lavatory underneath the basin.

Smith was called as a witness on behalf of the defendant and gave evidence that the basin was in proper condition when he left it on the evening before, and the tap turned off, and, as will presently be seen, the jury accepted his evidence. With regard to the second point, namely, whether it was necessary or usual to put a lead safe in such a lavatory, the evidence was very conflicting, the views of the various expert witnesses called for the parties differing widely. The learned judge summed up very carefully and at considerable length, calling the attention of the jury to the whole of the evidence given.

In the course of his summing up he directed them that "if this" (i. e. , the plugging up) "were a deliberately mischievous act by some outsider, unless it were instigated by the defendant himself, the defendant would not be responsible. He would not be responsible for a malicious act under those circumstances, because he could not guard against malice. " This direction was in substance repeated in that part of the summing up which dealt with the question of the necessity of placing a lead safe in the lavatory.

Referring to the contention of the defendant that the damage was caused not by the absence of a safe but by deliberate mischief, he said: "If it was, then the defendant would not be responsible because the person who deliberately tried to flood the place could overcome the precautions. He could stop the plug of the basin, he could stop the overflow, and could very easily stop the escape from the lead floors. Nobody is expected to guard against deliberate malice or mischief. " We are of opinion that this was the malicious act of some person. " The paper also shewed the calculation by which the sum of 156l.

was arrived at, which is omitted as not being relevant for the purpose of this appeal. It shews that the damages were calculated on the basis of compensating for the whole of the damage to the plaintiff's stock through the flooding. These questions were not happily framed. For example, the word "negligence" in 1 (a) is used twice, and evidently refers to two different things in the two places where it occurs. In the earlier part of the question it must refer to negligence in the construction of the apparatus, but in the latter part it must refer to negligence in user.

But this is not the most serious defect in these questions. There is also a fatal omission. The judge had directed the jury that if the act was malicious the defendant would not be liable unless he instigated it, which was not even suggested. Yet this issue was not put to them, nor, indeed, was any question asked bearing upon it. It is evident that this omission puzzled the jury. The course they took was, on the whole, one directed by common sense.

They found a verdict upon that vital issue, although it had not been separately left to them, and they then proceeded to answer the questions specifically put to them. As their language shews, these questions related solely to the issue of negligence – the first asking as to its existence, the second as to the damage being a consequence of it, and the third as to the amount of that damage. It is difficult to understand the answer of the jury to the second question, in view of the finding that the act was malicious, because if the act was malicious the negligence in not providing the lead safe could not be, legally speaking, the cause of the damage.

But there can be no doubt of the meaning of the finding as to the act having been malicious, and therefore their Lordships consider that the only reasonable interpretation to be put upon the answer to the second question is that the jury thought that the negligence in omitting to provide a lead safe was physically the cause of the damage in the sense that the provision of a lead safe would have prevented the damage if the overflow had been due to negligence or accident.

Their Lordships are of opinion that there was abundant evidence to support the finding of the jury that the plugging of the pipes was the malicious act of some person, and indeed it is difficult to see how upon the evidence any other conclusion could reasonably have been arrived at. The answers to question 1 (a) and (b) were also answers which the jury were competent to give upon the evidence, and no objection can be taken to them. By their answer to 1 (a) the jury shew that they appreciated in an exceptionally clear way the nature of the question for their decision.

In the face of the evidence as to its being an ordinary practice not to have such lead safes, and as to the lavatory being of ordinary construction and approved of by the water authorities, it would have been difficult, if not impossible, to give any finding of general application as to the duties of a house owner with regard to water fittings of this kind. Indeed, no such general finding could as a matter of law be sustainable. The degree to which it is incumbent upon a householder to provide automatic protection against careless user must depend on the nature of the user.

In a laboratory for instance, where the fitting would only be used by trained persons in the course of careful scientific work, such automatic safeguards against overflow might not be needed, whereas in a lavatory, where the user was more indiscriminate, it might be reasonable to have elaborate protective devices. But in this case the jury viewed the place, and their finding is a cautious one entirely within their competence. They found that it was negligent to omit to provide a lead safe on the floor of this particular lavatory.

Their Lordships are satisfied that a finding so express and so carefully limited cannot be impugned. It is clear that on these findings the plaintiff did not make good his claim as a claim in an ordinary action of negligence. To sustain such a cause of action it must be shewn that the negligence is the proximate cause of the damage. The proximate cause of the damage here was the malicious act of a third person. The only negligence which the jury found in this case was the omission to provide against accident by placing a lead safe under the lavatory.

Such automatic devices are security against accident or negligent user, but they are inoperative against intentional and mischievous acts. The person who did the malicious act in this case was obliged to do three distinct things to secure the success of his plan, namely, to open the screw tap to its utmost limit, to block the waste-pipe from the bottom of the basin, and to block the waste-pipe from the overflow holes. It cannot be doubted that the presence of a lead safe would have formed no obstacle to his plan, because the outlet from that safe could have been blocked up as easily as the two waste-pipes.