130 / 736
O'Connor J.
said
that, had
the electrician
tested for polarity, the reversed polarity would
have been discovered and the accident would
never have happened. Accordingly the plaintiff
was entitled to succeed against the second defen
dant. The
first defendant was not guilty of
negligence in his choice of independent contrac
tors to do the electrical work. As to his liability
for the electrician's negligence as occupier of
premises his only obligation to the invitor was an
obligation imposed by law to take reasonable care,
he could not be said to be liable to the plaintiff
as occupier of the premises. His Lordship con
cluded that the first defendant had taken reason
able care that persons coming to his flat would be
safe from injury from electricity and that he was
not in breach of any duty owed to such persons,
be they visitors or servants. If the first defendant
had attempted to do the work himself and had
made a mistake he would have had no answer
to an allegation that it was negligent to have
tried to do it himself.
It could not be good law that the occupier
of a flat could not install an electrical circuit
without underwriting the work of the specialist
contractors which he had no means of checking,
should it have been negligently done and cause
injury to a domestic servant. The claim against
the first defendant failed. There would be judg
ment for £3,081 against the second defendant.
(Cook
v. Broderip
and Another,
Solicitors
Journal
[Vol. 112] p. 193).
Solicitors' responsibility for delay
On 13th April 1961 the plaintiff was injured when
a diecasting machine exploded in his employers'
factory. He instructed solicitors in July. In Sep
tember they wrote a letter of claim. In March
1964 they issued writs against the employers and
suppliers and manufacturers of the machine, all
of whom entered appearances in April. Early in
1965 the plaintiff's solicitors asked to inspect the
machine but the employers' reply was that they
wished first to see the statement of claim. The
statement of claim was not delivered until June
1967. It was suggested that a notice of Intention
to proceed was not necessary. The Defendants did
not agree but gave instructions for defences to be
delivered. Before that was done, they applied to
have the action dismissed for want of prosecution
and the Registrar set aside the statement of claim
and dismissed the action for want of prosecution.
An appeal was made to the judge on December
14th 1964 and affirmed the order. The plaintiff
appealed on the grounds, inter alia, that the de
fendants, by accepting service of the statement of
claim, had acquiesced in the delay, and that, when
they applied to strike out, the time for delivering
their defences had expired.
Lord Denning M.R. said that, since the judge's
decision, the Court of Appeal had given judg
ment in three cases; and his lordship hoped that
the principles on which the court acted would
now become understood. It was plain that in
those cases and in the present one the long and
inexcusable delay by the plaintiff's solicitors was
prejudical
to
the -defendants and also
to
the
plaintiff who should have got his compensation
if he was entitled to it. The long delay had not
only done injustice to him but would cause grave
injustice to one or other of the defendants trying
to investigate the cause of the accident at this
stage. The only point which could be argued was
that, owing to the letters written after the state
ment of claim was delivered, there was something
in the nature of waiver or acquiescence. But those
letters, written before there had been
time to
consider the implications, could not be regarded
as waiver or acquiescence such as to disable the
defendants from applying for dismissal for want
of prosecution. The appeal should be dismissed.
In a concurring judgment Danckwerts L.J.
stated that the conduct of the case by the plain
tiff's solicitors amounted to an abuse of the pro
cess of the court. Edmund Davies L.J. also con
curring stated that there was no suggestion that
the plaintiff had caused or contributed to the
enormous and unexplained delay, and it was a
grave step to shut him out from relief for all time.
(Cresswell v. P.O. Sage & Co. Ltd. and Others
Solicitors' Journal
(Vol. 112) p. 173).
Income Tax—Accountant's Default
The taxpayer employed an accountant to make
out his income tax return for him. He had com
plete faith
in
the accountant and signed
the
return without examining it. Nothing had been
suppressed from the accountant, who had all the
relevant books
from which
to make out
the
return. The profits of the taxpayer's business were
substantially understated in the return, and the
Crown claimed that it was entitled to be paid
the loss of tax which had resulted. The Crown's
claim was based on the proviso to s. 47 (1) of the
Income Tax Act 1952 which states that: "Where
any form of fraud or wilful default has been
committed by or on behalf of any person
in
connection with or in relation to income tax .
.
.
additional assessments may, for the purpose of
making good
to
the Crown any
loss of
tax
attributable to the fraud or wilful default, be ...
made at. any time". The taxpayer contended that
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