ON APPEAL FROM HIGH COURT
QUEEN'S BENCH DIVISION
(MRS JUSTICE SWIFT)
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE CARNWATH
LORD JUSTICE MOSES
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Mr Michael Pooles QC and Mr Rohan Pershad (instructed by Greenwoods) appeared on behalf of the Respondent.
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Lord Justice Moses:
"Subject to paragraph (5), it shall be the duty of every employer whose employees are carrying out construction work and every self-employed person carrying out construction work to comply with the provisions of these Regulations insofar as they affect him or any person at work under his control or relate to matters which are within his control."
Regulation 4(2), which is the relevant regulation for the purposes of this appeal, reads:
" It shall be the duty of every person (other than a person having a duty under paragraph (1) or (3)) (an employee) 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."
"The requirements imposed by these Regulations on an employer shall apply in relation to work—
(a) by an employee of his; or
(b) by any other person under his control, to the extent of his control."
"The requirements imposed by these regulations on an employer shall also apply to... b) any person other than a self-employed person, in relation to work by a person under his control, to the extent of his control."
"Whereas Member States have a responsibility to encourage improvements in the safety and health of workers on their territory;
Whereas taking measures to protect the health and safety of workers at work also helps, in certain cases, to preserve the health and possibly the safety of persons residing with them;
Whereas Member States' legislative systems covering safety and health at the work place differ widely and need to be improved;
Whereas national provisions on the subject, which often include technical specifications and/or self-regulatory standards, may result in different levels of safety and health protection and allow competition at the expense of safety and health;
Whereas the incidence of accidents at work and occupational diseases is still too high; whereas preventive measures must be introduced or improved without delay in order to safeguard the safety and health of workers and ensure a higher degree of protection;"
"Whereas temporary or mobile construction sites constitute an area of activity that exposes workers to particularly high levels of risk
Whereas unsatisfactory architectural and/or organisational options or poor planning of the works of the project preparation stage have played a role in more than half of the occupational accidents occurring on the construction sites in the community
Whereas when a project has been carried out a large number of occupational accidents may be caused by inadequate coordination,
Whereas it is therefore necessary to improve coordination between the various parties concerned at the project preparation stage."
"The client or the project supervisor shall appoint one or more coordinators for safety and health matters, as defined in Article 2 (e) and (f), for any construction site on which more than one contractor is present.
2. The client or the project supervisor shall ensure that prior to the setting up of a construction site a safety and health plan is drawn up in accordance with Article 5 (b)."
There are then further obligations imposed on those construction sites where the numbers of workers are more than 20 or the work is scheduled to last, for example, longer than 30 working days.
"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 regulation 4(1). That, therefore, identifies the starting point. But someone who is not an employer may also be bound by the statutory obligation under regulation 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 regulation 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."
To similar effect was the judgment of Hale LJ, who focussed on the fact that the question of control was a question of fact (see paragraph 28).
"Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organization and means."
Lord Justice Carnwath:
"..I think most citizens of this country would regard as surprising in the extreme and might even be said to be greeted with some degree of horror."
I infer that, in granting permission, she was anticipating that the appeal might be an opportunity for this court to say in clear terms that even in this area of the law common sense should be allowed to play a part. If so, I am more than happy to comply.
Lord Justice Maurice Kay:
I agree with both judgments. Accordingly the appeal is dismissed.
Order: Appeal dismissed