COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
BIRMINGHAM DISTRICT REGISTRY
HIS HONOUR JUDGE OWEN QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOORE-BICK
LORD JUSTICE JACKSON
| CEVA LOGISTICS LIMITED
||Appellant/ First Defendant
|- and –
|MARK ANTHONY LYNCH
||First Respondent/ Claimant
|- and -
STEVE W LYNCH TRADING AS S.W. LYNCH ELECTRICAL CONTRACTORS
Respondent/ Second Defendant
WordWave International Limited
A Merrill Communications Company
190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Bruce Silvester and Ms Kate Balmer (instructed by Irwin Mitchell) for the First Respondent
Mr Richard Moat (instructed by Hugh James Solicitors) for the Second Respondent
Hearing date: Friday 28th January 2011
Crown Copyright ©
Lord Justice Jackson :
Part 1 Introduction,
Part 2 The Facts,
Part 3 The Present Proceedings,
Part 4 The Appeal to the Court of Appeal,
Part 5 Breach of Statutory Duty,
Part 6 Duty of Care,
Part 7 Apportionment.
"(1) Every employer shall ensure that every workplace, modification, extension or conversion which is under his control and where any of his employees works complies with any requirement of these Regulations which-
(a) applies to that workplace or, as the case may be, to the workplace which contains that modification, extension or conversion; and
(b) is in force in respect of the workplace, modification, extension or conversion.
(2) Subject to paragraph (4), every person who has, to any extent, control of a workplace, modification, extension or conversion shall ensure that such workplace, modification, extension or conversion complies with any requirement of these Regulations which –
(a) applies to that workplace or, as the case may be, to the workplace which contains that modification, extension or conversion;
(b) is in force in respect of the workplace, modification, extension, or conversion; and
(c) relates to matters within that person's control.
(3) Any reference in this regulation to a person having control of any workplace, modification, extension or conversion is a reference to a person having control of the workplace, modification, extension or conversion in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not)."
"(1) Every workplace shall be organised in such a way that pedestrians and vehicles can circulate in a safe manner.
(2) Traffic routes in a workplace shall be suitable for the persons or vehicles using them, sufficient in number, in suitable positions and of sufficient size.
(3) Without prejudice to the generality of paragraph (2), traffic routes shall not satisfy the requirements of that paragraph unless suitable measures are taken to ensure that –
(a) pedestrians or, as the case may be, vehicles may use a traffic route without causing danger to the health or safety of persons at work near it;
(b) there is sufficient separation of any traffic route for vehicles from doors or gates or from traffic routes for pedestrians which lead onto it; and
(c) where vehicles and pedestrians use the same traffic route, there is sufficient separation between them. "
"(x) By their servant or agent the floor manager, David Boyden:
(b) At a meeting with Steve Lynch of the Second Defendants, prior to the Claimant's accident and during which working systems were discussed, concluded the conversation with words to the effect that the First and Second Defendants would "work around one another"."
"As a result of the matters set out above the First Defendant and Second Defendant should only have worked in proximity with each other if it was safe for them to do so. Insofar as this could not be achieved, the First Defendant was to organise a safe system of work.
It is in this context that the Second Defendant accepts that the First Defendant and the Second Defendant agreed to work around the First Defendant's works activities. If proper checks were undertaken neither would be working in proximity to the other."
"The question arises therefore as to whether I am satisfied, on the balance of probabilities, that the evidence given by the claimant as to the manner in which he was permitted to go about his work and, as he understood it, was the method by which he would be expected by the first defendant to go about that work is accurately described by him. I am satisfied that the claimant's testimony on this question is accurate and reliable. I am satisfied that his lack of a true understanding as to the danger posed by going about his work on foot in the way in which he went about it (it appears without a care) is explained by the absence of any proper briefing which the first defendant itself expected would have been given. I am satisfied on the evidence that no such proper briefing had been given and which would have met the standard expected, for example either by Mr Gould or by Mr Davies."
"2.1 TNT expects any contractor to take all reasonable precautions to ensure the health and safety of their own employees, TNT staff, customers and third parties.
2.2 Before any contractor is allowed to work on TNT controlled premises the following documentation must be received, where applicable
- Health and Safety Policy Statement (if there are 5 or more employees)
- Public Liability Insurance (minimum indemnity limit of £2 million)
- Employers' Liability Insurance as laid down in the Employer's Liability (Compulsory Insurance) Act 1969 in respect of any of the contractor's own employees entering TNT's premises
- Any other insurance cover as laid down by TNT in the form of the contact applicable to the work being carried out by the contractor
- Method Statement/Risk Assessments for the work to be carried out
- Corgi Registration (for gas work)
- Electrical accreditation (for electrical work)
- Any specialist accreditation
- Any other documentation deemed necessary by TNT Logistics UK Limited
3.1 The contractor must report to the main reception and ask for the manager responsible for the area where the work is to be undertaken before commencement of such work.
3.2 The contractor will be supplied with a copy of the site safety rules and he must read, understand and accept such before commencement of work.
3.3 Contractors must, at all times observe the safety rules and the instructions given by the responsible manager who will enforce the company safety policy at all times.
3.4 If, in the opinion of the contractor or TNT site management, the contractor's work will present real or potential hazards, the contractor must inform TNT management beforehand of the arrangements he needs to make to ensure that safety of TNT employees, its customers and third parties.
3.5 Contractors must familiarise themselves with any of TNT's health and safety arrangements, which may be relevant to the contractor's activities.
3.6 Where it is necessary for any company representatives to draw attention to a breach of law, site safety rules or the contractors own method statement, the contractor must ensure that full and effective action shall be taken to remedy the situation. If such action is not taken, the Company reserve the right to demand that the contractor ceases work and removes himself from the site."
"It shall be the duty of every person (other than a person having a duty under paragraph (1) or (3)) who controls the way in which any construction work is carried out by a person at work to comply with the provisions of these Regulations insofar as they relate to matters which are within his control. "
In explaining the operation of regulation 4(2) Judge LJ stated at paragraph 16:
"In principle it is clear that the obligation to perform the duty provided by the regulation cannot be avoided by abdicating responsibility. If compliance is required, it is not an answer to contend that the duty was ignored and thus did not arise. The requisite level of control before the duty does arise, however, is linked to the way in which construction work is carried out and it is confined to construction work within the individual's control. For this purpose the obvious person who controls the way in which construction work on site is carried out is an employer. The employer owes express duties under reg 4(1). That, therefore, identifies the starting point. But someone who is not an employer may also be bound by the statutory obligation under reg 4(2). Whether the appropriate level of control over the work is or should be exercised by an individual other than an employer so as to create the duty to comply with the obligations under reg 4(2) is, in my judgment, a question of fact. It is not answered affirmatively by demonstrating that an individual has control over the site in a general sense as an occupier, or that as the occupier of the site he was entitled to ask or require a contractor to remove obvious hazards from the site. The required control is related to control over the work of construction."
"Regulation 4(2) of the 1996 Regulations to my mind depends entirely on the question of factual control. Of course if a person has factual control and chooses not to exercise it, they cannot thereby escape liability. But there will still be the question of fact as to whether such control exists. In the circumstances of a client who is contracting with an apparently reputable contractor to conduct construction work in his premises, there is little reason to doubt the straightforward factual finding made by the judge that the client was not in control of the way in which the claimant was doing his work."
"… On the one hand, the first defendant has actual control over that which goes on in its premises and bore a statutory duty for that very reason which demonstrates, by their breach, substantial causal potency and blameworthiness for the reasons I have already indicated. On the other hand, the second defendant was the claimant's employer with a clear and non-delegable duty which appears not to have been addressed seriously, if at all, by the second defendant."
Lord Justice Moore-Bick :
"Whether the appropriate level of control over the work is or should be exercised by an individual other than an employer so as to create the duty to comply with the obligations under regulation 4(2) is, in my judgment, a question of fact."
"Regulation 4(2) of the 1996 Regulations to my mind depends entirely on the question of factual control. Of course if a person has factual control and chooses not to exercise it, they cannot thereby escape liability. But there will still be the question of fact as to whether such control exists."
Lord Justice Mummery: