England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(Harry Wolton QC: sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand London WC2 Thursday, 18th April 2002

Thursday, 18th April 2002

1. LORD JUSTICE PETER GIBSON: I will ask May LJ to give the first judgment.
2. LORD JUSTICE MAY: On 7th July 1995, Mr Chinery, the claimant, suffered severe injury resulting in paraplegia when he fell down a 700 mm circular capped ventilation duct from the seventh floor south mechanical riser room at St George's House, Wimbledon. The accident occurred when he was working as an employee of Engineering with Excellence Limited, the first defendant appellant, as a lagger. The circumstances of this unfortunate accident were most unusual.
3. The main contractors for the refurbishment of this office block were Laing South East Limited. Balfour Kilpatrick Limited, the second defendants, were sub-contractors to Laing for the mechanical and public health works. This included installing a new air-conditioning system, which required pipe work, duct work, lagging and electrical works. Zeldatree Limited, the third defendants, were specialist duct work sub-sub-contractors to Balfour Kilpatrick Ltd. The first defendants were sub-contractors to Balfour Kilpatrick whose work included carrying out insulation work to newly installed chilled water pipe work.
4. The seventh floor riser room contained two circular air-conditioning ducts, one of 700 mm in diameter and the other rather larger, approximately 900 mm in diameter. The smaller one of these was redundant. Its space was required for other new works. About two days before Mr Chinery's accident, or thereabouts, Mr Ian Rae, the second defendants' site manager, asked Gary Paul, a duct work fitter employed by the third defendants who were working on the site, to remove some ducts from the riser cupboard on the seventh floor so that they could get the new pipes in. Mr Rae originally asked Mr Paul to remove the 700 mm duct at floor level, but this was not practical. So Mr Rae agreed that it should be cut down to what Gary Paul described as "waist height". This was some 700 mm to 900 mm above the floor level. The judge found that it was 700 mm, or thereabouts, above floor level. Gary Paul and two other of the third defendants' fitters accordingly removed the duct leaving it at about waist height. Gary Paul did not give oral evidence, but his statement to the Health and Safety Executive was put in by the first defendants under the Civil Evidence Act. He said in this witness statement that he did not think that anyone would be going into the cupboard so he left the duct open after he had finishing reducing it in height and had shut the cupboard. Later he was asked by someone from the second defendants, he thought it was Ian Rae, to ask Paul Bloomfield, the third defendants' designer, to get a capping end for the duct. Ian Rae said that the cap end was to suit the spiral duct to stop dust going down it. He did not say that anyone would need to stand on it. No-one told him, that is Mr Paul, that this might happen. Paul Bloomfield came to measure for the end cap. Gary Paul's statement indicates that he was aware that additional pipe work was being installed in the riser room. When Gary Paul left the duct at the height it was there was nothing else in the cupboard that suggested that anyone would need to stand on the cap end to get to it. There was no other evidence from the third defendants.
5. The duct itself was made of spirally wound galvanised mild steel sheet 1 mm or slightly less thick. The cap to the end was of similar specification. It sat on a lip and was rivetted to the wall of the spiral duct. We have seen either it, or an example of it, brought into court. Each of the ducts and the cap complied with HVCA duct work specification DW142. The cap was intended as a dust cap. It was not intended to be stood on. Nor is it clear that the duct itself would have been load-bearing if the cap alone had been strengthened. Ducts manufactured to DW142 are not expected to have structural stability to support the weight of a man. If it is thought that ducts will be stood on, it is normal to construct something in the nature of a small gantry.
6. Mr Chinery was installing lagging to chilled water air-conditioning pipes at a high level in this riser room. To do this he was standing, somewhat precariously no doubt for some time, on the angle of some existing pipe work. As he was descending to get to the floor, he stood on the cap of the reduced ventilation duct. Having suffered severe injuries he was not able to give exact details of how it happened; but the cap was incapable of carrying his weight and he fell through it from the seventh floor nearly to the first floor. He brought proceedings for personal injury against the first, second and third defendants. It was agreed that he should receive £1,050,000 as damages against the three defendants. The agreement may have included an element of contributory negligence on his part. It was left to the defendants to apportion the amount which he received between themselves. They were unable to reach agreement and so the question of apportionment was determined by Mr Harry Wolton QC, sitting as a Deputy Judge of the High Court in the Queen's Bench Division, whose judgment is dated 18th January 2001. He decided that the first defendants, Mr Chinery's employers, were 70% responsible and that the second defendants were 30% responsible. He exonerated the third defendants. The first defendants appeal against this finding, contending that the Deputy Judge was wrong not to find that the third defendants were to some extent to blame. Henry LJ gave permission to appeal on the papers, indicating that a nil contribution from the third defendants struck him as a questionable result.
7. The Deputy Judge said that there was no issue as to the adequacy of the cap to the ventilation duct through which the claimant fell. It was not strong enough to bear the weight of a man and had not been designed to do so. There was evidence from a consulting engineer, Mr Mottram. He said that the nature and the position of the cap constituted a trap, and the Deputy Judge agreed with him. The claimant had given evidence that he thought that the cap was safe to stand on and that he would have expected a sign to denote any lack of safety. There was also employed by the first defendant a Mr Bird, who was a lagger who was, as the Deputy Judge found, senior to the claimant having been employed on the site and by the first defendants for a considerably greater time than the claimant. There was also a Mr Wooley, who was a director of the first defendant company with overall responsibility for the works being carried out by his company at the Wimbledon site. The claimant had never received any instruction from Mr Wooley and had not seen Mr Bird do any risk assessment of the task upon which the claimant was engaged. The Deputy Judge found that there was a ladder, but that it was in use by Mr Bird at the time of the accident. Mr Wooley gave evidence that he had nothing to do with sending the claimant and Mr Bird to the riser room and that it was not uncommon for other people to direct his labour force on site without consulting him. He was not aware that they were working on the seventh floor. He did not necessarily visit every section of the site in which his men were working. Of this the Deputy Judge said:

"If Mr Woolley considered that it was in order to let his employees be sent to do jobs of which he knew nothing and in respect of which he would not be in a position to make any risk assessment, then it must have been incumbent upon him to ensure that those employees were both sufficiently experienced and were sufficiently safety trained and safety conscious to ensure that, so far as was reasonably possible, they were safe in carrying out any tasks that they should be required to perform and that they would ensure that their place of work was sufficiently safe for them to work in."

8. Mr Wooley also said that if he had seen the riser room and the work that the claimant was required to do, he would have taken the matter up with the second defendants because, as he said, the access was not good enough. Mr Wooley accepted that if he himself had gone there, the accident would not have happened.
9. The Deputy Judge considered that there was a very heavy burden on Mr Wooley, and consequently upon the first defendants, to show that sufficient care was taken as to the claimant's experience and ability to be left to work on his own initiative. He found that this burden had not been discharged. Alternatively, if Mr Bird was to be regarded as effectively in charge of the claimant, then Mr Bird did not take any care insofar as the claimant was concerned with his work in the riser room and did not ensure that the method or system of work was safe or that the work place was safe. Accordingly the Deputy Judge found that the first defendants were liable. [This finding was not challenged on this appeal. Indeed the first defendants had accepted this from the outset of the trial. The issue concerns the matter of apportionment with other defendants.]
10. Turning to the second defendants, the Deputy Judge recorded that Mr Rae had said that it was normal practice to cover an open duct and the cap was no more than a dust cap. If he had thought that there was a danger of someone standing on the cap, he would probably have put a notice on it. He did not anticipate that somebody would stand on it. The Deputy Judge found that it was Mr Rae who confirmed to the third defendants that the duct should be cut off at the level at which it was and that it should be capped in the same way as had been originally contemplated. The second defendants' contract manager stated that he would have expected the cover to be in accordance with the standard DW142. The Deputy Judge concluded that, if the cover on the duct was not safe for a man to stand on, and if this situation constituted a trap, then the second defendant must be liable to some extent to the claimant. Mr Rae had authorised what was potentially a trap. He knew that the riggers employed by the first defendants were going to be working in the room after the duct had been capped in this way and with the strength of which he was aware. Accordingly he found the second defendants liable to the claimant.
11. As to the third defendants, they had done what they were asked to do and this was approved by Mr Rae on behalf of the second defendants. They completed the work to the standard DW142. It was contended on behalf of the second defendant that Mr Rae relied on the expertise of Mr Paul in allowing the duct to be cut off at a higher level. Of this, the Deputy Judge held that, although Mr Paul may have been responsible as to how the job was done, the ultimate responsibility as to the consequences of that work must have been that of the second defendants. Secondly, even if the duct had been cut off at floor level, the method of work and the materials employed would have remained the responsibility of the second defendants. Mr Rae had approved this without any consideration as to the consequences for safety. There would still have been a trap, but the standard DW142 remained constant. The Deputy Judge held in effect that the third defendants were not obliged to carry out further and more expensive work than they had been authorised to do. A safe cap or other means of enabling someone to stand at that level would have been more expensive. The Deputy Judge acquitted the third defendants of liability to the claimant.
12. As to apportionment, the Deputy Judge said that he did not find it easy to apportion liability between the first and second defendants. He took as his starting point the fundamental responsibility of the employer for the safety of his employee. He considered that Mr Wooley adopted a somewhat cavalier attitude towards Mr Chinery's safety. He did not seem to the judge to have been in any way concerned. He considered that the first defendants must bear the greater proportion of liability to the claimant. Mr Rae was careless and could have acted to ensure that no trap existed and so avoided the accident. He did not give sufficient consideration to the risks involved with a lightweight cover to the duct in a confined space and when he knew that other persons were going to have to work in the area. He should have applied his mind to these matters. With these considerations in mind he made the 70:30 apportionment between the first and second defendants to which I have referred.
13. The Deputy Judge did not specifically refer in his judgment to the expert opinion of Mr Gosnell, an engineer instructed on behalf of the third defendants. His opinion was that it was the second defendants' responsibility to instruct the third defendants where the duct was to be removed, the extent to which it was to be removed and the method of capping. He considered that the duct should have been stripped back to high sixth floor level rather than to low seventh floor level. Terminating the duct at low level and closing the opening with a flat capping presented an obvious platform. It was highly probable that, either during the works or at some time in the future, someone would stand on the duct. He said that it is common practice to cap redundant ventilation ducts using thin gauge sheet metal. It is not standard practice to construct a cap to a standard appropriate for its use as a platform. The strength and method of supporting the existing duct were unknown. Consequently, it would have been unsafe to design the cap on the premise that it would take the weight of a man without also reinforcing the section of the duct above the gantry grating and the duct supports below the gantry. He expressed the view from experience that the second and third defendants would be aware that it was highly probable that at some point in the life of the installation someone would stand on the capped end of the duct.
14. There was a joint statement following discussions between Mr Mottram and Mr Gosnell. They were agreed that duct work manufactured in accordance with DW142 is not designed nor fabricated in a way which makes it capable of supporting a person's weight. DW142 does not give guidance on the design of end caps, nor any other fittings used in the assembly of ventilation duct work, which makes them suitable for supporting a person's weight. Their agreed view was that it would have been foreseeable that someone might use the capped duct as a stepping point to gain access to the chilled water pipe work at high level in the riser room, directly above the position of the duct. They also agreed that, for that reason, the duct should have been cut at a level below the steel mesh floor, as was the case some time following the accident.
15. The first defendants' grounds of appeal contend that the Deputy Judge was wrong to acquit the third defendants and that this error undermined the exercise of discretion on apportionment. The Deputy Judge was wrong to disregard authorities and, in particular, to ignore the Court of Appeal decision of Plant v Clive Adams [2000] BLR 137. It is contended that the Deputy Judge failed to address certain evidence, including Mr Gosnell's view that the second and third defendants would be aware that it was highly probable that at some point in the life of the installation someone would stand on the capped end of the duct. That foresight should have been attributed to the third defendants as well as the second defendants. It is also contended that the Deputy Judge was wrong to be influenced by the potential cost to the third defendants of producing a cap to the ventilation duct which was safe.
16. The second defendants supported at trial (and support in this court) the case against the first defendants essentially to the effect found by the Deputy Judge. They pointed out that the riser cupboard was normally kept locked and, accordingly, it would only ever have been open to those with the specific purpose of carrying out work. They then had the responsibility of seeing that the work was safely carried out. As to the third defendants, the second defendants contend that the third defendants should have placed a sign over the capped duct indicating that the cap and the duct were not load bearing.
17. The third defendants supported the case against the first defendants, submitting that there was a disregard for statutory and common law duties of an employer and that a finding of 80% could well have been made. As to the third defendants themselves, the accident occurred in the riser cupboard on the seventh floor. This was a small space that was kept locked and to which access was only obtainable through the second defendants. The cupboard served no purpose other than to be the space through which pipes and ducts ran. The second defendants instructed the third defendants to cut off the duct at the level at which it was cut off and to make and fit a dust cap. The dust cap complied with the appropriate standard and was entirely appropriate. The second defendants' engineers inspected the work completed by the third defendants. There was no concealed danger so far as they were concerned. They had asked for a dust cap and they had got what they asked for. They did not ask for or expect a weight bearing cap. It is not known whether a stronger cap by itself would have prevented the accident. The second defendants knew exactly what the third defendants had done before they gave the first defendants' employees access to the riser cupboard. Any steps necessary to make the claimant's work in the riser cupboard safe should have been taken by his own employers or by the second defendants. What subsequent sub-contractors might be doing in the riser cupboard was better known to the second defendants than could have been to the third defendants. More importantly, those activities were in the second defendants' control. There was no evidence that the third defendants ought to have supposed that other sub-contractors' employees would be allowed access to the riser cupboard without anyone in authority considering whether, and subject to what precautions, it was safe for them to do so.
18. In the case of Plant Construction v Adams & others [2000] BLR 137, temporary propping required by excavation work to an industrial building which had been instructed on behalf of the employer was inadequate and dangerous. The sub-contractor engaged to carry out the sub-structure work appreciated this and drew it to the attention of the employer's engineers. Nevertheless, excavation work proceeded and, following a period of heavy rain, the whole of the roof in the area collapsed causing substantial damage. The issue concerned the extent of the sub-contractor's duty to warn. It was held that the sub-contractor was contractually obliged to carry out temporary works supporting the roof in the way in which, and to the design by which, they were so instructed by the employer. The factual extent of the performance required by the implied term that they would perform their contract with the skill and care of an ordinary competent contractor depended on all the relevant circumstances. Since crucially the temporary roof support works were obviously dangerous and were known by the sub-contractor to be dangerous, their implied obligation carried with it an obligation to warn of the danger which they perceived. This was not negatived or reduced by the fact that the design and details of the temporary works were imposed by the employer, nor that others were responsible or at fault. Their duty extended to giving proper warnings about the risk. It is to be observed that the facts of that case are far removed from those in the present appeal. This appeal concerns only liability, or potential liability, in tort.
19. Mr Lamb QC on behalf of the first defendants accepts that the court was bound to find that the second and third defendants should have foreseen that others would work in the duct cupboard and that someone might stand on the capped duct. There is no material difference between a duct cut off at floor level and at waist height. Gary Paul should have appreciated this. He knew what it was that he was putting place. He should have warned the second defendants that what he was asked to install was a trap and dangerous. There is no distinction that should be drawn between the responsibility of the second and third defendants. The judge should not have regarded the third defendants as simply carrying out instructions from the second defendants. The cost of a proper cap should not have been taken as relevant. Mr Lamb seeks a finding that the judge should have found that the claimant would have succeeded against the third defendants and that the apportionment of liability between the three defendants should be adjusted. He contends for a one-third apportionment between each. He made reference to the framework directive, which provides, amongst other things, that the improvement of workers' safety should not be subordinated to purely economic considerations. All those who work on building sites should have regard to the safety of those who work there.
20. Mr Burton QC for the second defendant supports the first defendants' appeal on the grounds put forward at trial. Their case at trial against the first defendants was that their liability was obvious on numerous particular grounds which are set out in their trial skeleton argument. It could have been, he submits, as high as 80% as between the first and second defendants.
21. Mr Burton before us this morning elaborated the details of this. The third defendants, he submits, were specialist duct workers. Mr Rae accepted Mr Paul's advice that the duct could not be cut off at ground level. The third defendants failed to put a warning sign on the capped duct when they should have, and failed to strengthen the cap when they had a responsibility for its design and installation. They did not consider the possibility that someone might stand on the capped duct. It was just as reasonably foreseeable by the third defendants as by the second defendants that what was envisaged was dangerous. This was the view indeed expressed by the third defendants' own expert, Mr Gosnell.
22. Mr Burton points to a letter from the Health and Safety Executive dated 4th June 1997 in which it is asserted that the third defendants were aware that further work was likely to take place in the riser room and that someone would use the capped duct as an access platform. Several options were available to the third defendants. The trend of authority and European Regulations is to require employers to make a suitable and sufficient assessment of risks for employees and non-employees alike. He points to paragraph 3(2) of the Management and Health and Safety at Work Regulations 1992 while accepting that these Regulations by themselves do not give rise to a civil liability.
23. In summary, Mr Burton submits that it is difficult to see why the third defendant should not have been held liable to the claimant, as he accepts the second defendants correctly were. He submits that the 30% liability attributed to the second defendants should properly be shared between the second and third defendants.
24. Mr O'Brien QC for the third defendants accepts that the capped duct was a trap to the claimant but not, in his submission, to anyone else since everyone else relevant knew that the cap was not load bearing. He suggests that a question of reliance may be helpful. No-one relied on the third defendant for anything, he submits. The decision as to the cut off level was made by Mr Rae or one of his engineers. There was a join in the ducting at that level at which it was eventually cut off. The nature and quality of the capping was, he submits, chosen by the second defendants to the extent that Mr Rae said that he would expect the third defendants to follow DW142. Forensically it was accepted that DW142 was the appropriate standard. Putting in a stronger cap alone would not have helped because the duct itself was not strong enough. The third defendants did not determine whether their work had been properly done because it was inspected on behalf of the second defendants, among other things, to see that the room was fit for the next operation. Everyone at the second defendants knew that the cap should not be stood on. No-one looked to the third defendants to make communication of that fact to the first defendants. This was a locked room. No-one looked to the third defendants to control who was to come into the room after they had done their work.
25. Mr O'Brien emphasises what he submits is the large extent of the responsibility of the first defendants. He submits that the one third split for which Mr Lamb contends is manifestly absurd. The judge's apportionment should be upheld unless the court were to tinker up the first defendants' responsibility to 80%. The third defendants were doing the job they were asked to do without knowing what subsequently had happened. They were entitled to suppose that no-one else would be given access to the room until appropriate arrangements were made to make it safe. There was no real evidence that a written warning would have been effective. The logic of the case against the third defendants is that they would be liable for ever. The height of the cut off was determined by the second defendants' engineers. The room, he said, was locked. No-one was looking to the third defendants to coordinate the activities of others. The second defendants' engineers inspected the completed work of the third defendants to make sure that it was ready for the laggers. So there was an actual inspection by the second defendant of the place where the claimant was to work. There was nothing that the third defendants could have told him that the second defendants did not already know. Mr O'Brien emphasises that the judge held that Mr Rae was aware of the strength of the capping.
26. Mr O'Brien then referred us to a number of authorities, but I do not find the any of them helpful in the determination of the case. I simply record what they were. He first referred to Buckner v Ashby and Horner [1991] 1 KB 321; then to Duncan v Cammell Laird [1943] 2 All.E.R. 621; Carroll v Kepic (1955) 1 DLR 53; Taylor v Rover [1996] 1 WLR 1491. There was reference by more than one counsel to the decision of this court in Perret v Collins [1999] PNLR 7.
27. In my judgment no point of principle arises in this case. As I said in my judgment in the Plant case, the extent of a contractor's or sub-contractor's responsibility to warn of dangers on a construction site depends on all the relevant circumstances. Here Mr Rae, the second defendants' senior project manager, instructed Mr Paul, who was a fitter, to arrange for the duct to be capped. As a matter of fact, it seems to me that the lawyer's question is the same as the question on the ground, that is whether in all the circumstances Mr Paul should have given a warning or whether Mr Bloomfield, the third defendants' designer, should have either given a warning or designed something different. Mr Rae knew what was going to happen in the riser room subsequently. Mr Paul and Mr Bloomfield did not, other than by supposition. Critically, to my mind, Mr Paul was a fitter with no supervisory function. He should, I think, in the circumstances of this case, be regarded as in a position of an operative of the second defendants. Mr Bloomfield was a designer, and it is to be supposed that it was he who decided how in detail capping should be done. Although it is accepted that the material from which the cap was made was not explicitly specified (in that the choice made was suitable for a dust cover), the evidence appears to indicate that the choice was made probably by the third defendants, presumably by Mr Bloomfield, and further that he designed the detailed way in which that cover was to be fixed. It seems to me that the evidence of Mr Gosnell should be accepted as referable to Mr Bloomfield, if not to Mr Paul, to the effect that the third defendants would in general terms be aware that it was highly probable that at some point in the life of the installation someone would stand on the capped end of the duct. The third defendants through Mr Bloomfield have something of a contractual design responsibility, but in my judgment he was not obliged unilaterally to decide to design something fundamentally different from what he had been asked to design. The highest that it could be put is that he was obliged to appreciate and warn that what he had designed would not support a man's weight and that steps of some kind should be taken to guard against the kind of accident which in fact unfortunately happened.
28. I have hesitated as to whether a submission to that effect should succeed so as to establish a liability of the third defendants to the claimant. In the end I have concluded that, on the particular facts of this case, it should not. True it is that an employee of the third defendants may be said to have designed the cap, but the third defendants had nothing to do with the activities which were to take place in this room, nor as to their supervision subsequently. Critically, I think, they had nothing to do with any further steps or works which were to be done in the room before the lagging work was to take place. The judge was entitled to hold, on the evidence, that Mr Rae knew that riggers employed by the first defendants were going to be working there after the dust cap had been installed, and he knew the way in which the dust cap had been installed and he knew its strength. The cross-examination of Mr Wooley constrained him to accept that the cap plainly should not have been stood on. The same necessarily applied both to Mr Rae and to the second defendants' engineers.
29. As between the second and third defendants, I think that the responsibility for seeing that the room with its capped duct was safe for laggers lay entirely with the second defendant - one at least of these engineers inspected and approved the work - and that a claim by the claimant against the third defendants would fail. Although the risk that someone might tread on the capped duct may, in the view of an expert, have been foreseeable, I consider that in this case the third defendants were in the position of a sub-contractor who did was what asked of them but who had no obligation to see that further steps were taken by others, in particular the second defendant. The second defendants were themselves in control of the use of the room; they knew that the duct capped was not strong enough to be stood on; and they themselves had the responsibility with the first defendants for ensuring that the claimant could safely use the room.
30. In these circumstances, I do not consider that there was a breach by the third defendant of any duty of care to the claimant. It was not their responsibility to carry forward what they had done to produce a safe place and system for the claimant's work. I do not understand, in these circumstances, that the first defendants suggest that the apportionment as between themselves and the second defendants should be changed. If there were such a suggestion I am not persuaded that the judge's apportionment should be changed.
31. For these reasons I would dismiss this appeal.
32. LORD JUSTICE JUDGE: I agree.
33. This appeal involves a decision on particular facts. In my judgment the critical facts are that Zeldatree was asked by Balfour Kilpatrick to provide a cap adequate to prevent dust falling down the duct. That is what they did, through Mr Bloomfield, who designed the cap, and Mr Paul, who fitted it. What they provided for Balfour Kilpatrick coincided precisely with what it was agreed they would produce and it was of the requisite strength for that purpose.
34. Balfour Kilpatrick, and in particular Mr Rae (who had put in the order for the cap and saw that it was fitted), knew that the cap was not strong enough safely to take a man's weight. They therefore needed no warning from Zeldatree about the possible dangers, and they did not seek from Zeldatree any warning signs on the cap, nor the provision of a gantry, nor any form of reinforcement. Their work completed, Zeldatree left the room and the duct cap, and the room in which it was fitted, to the exclusive control of Balfour Kilpatrick. They had no further dealings with that room. The doors were locked. Balfour Kilpatrick retained the keys and controlled access. The subsequent use of the room was controlled exclusively by Balfour Kilpatrick. Knowing that the duct cap was not strong enough to bear a man's weight, and without giving him any warning of any kind, Balfour Kilpatrick admitted the claimant into the room where this unfortunate accident happened.
35. In my judgment no basis has been shown for interfering with the judge's findings. Accordingly I agree that the appeal should be dismissed.
36. LORD JUSTICE PETER GIBSON: I agree with both judgments.
Order: Appeal dismissed. The third defendants costs to be paid by the first defendant. The second defendant to bear its own costs.