England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
BRISTOL DISTRICT REGISTRY

		06 August 2004

1. The claimant was a painter and decorator in partnership with his father. On 5 June 2000 he was carrying out work at premises known as Elm Tree Farm, Westham, near Blackford in Somerset. On that day he fell from a ladder and suffered severe injuries.
2. He brings this action against the defendant who was the main contractor for the works being carried out and alleges that the defendant was in breach of the Construction (Health, Safety and Welfare) Regulations 1996. His claim is based purely on statutory breach. Originally he also alleged a duty of care under the Occupiers Liability Act 1957 and at common law but these allegations were not pursued at the trial,
3. It is the claimant's case that the regulations apply either because he was employed by the defendant, or because the defendant was a person controlling the way in which the work was carried out,
4. The defendant denies that he was employing the claimant or that he was in any way controlling the work the claimant was undertaking. He therefore maintains that the Regulations do not apply to him.

THE FACTS

5. There is very little dispute as to matters of fact and the evidence did not take up much of the court's time, The following matters are not in dispute.
6. The defendant is a building contractor who undertakes work on mainly domestic properties. He is quite often employed by the trustees of Hugh Sexey's Hospital (through their managing agents, Cluttons) to carry out decorating and general maintenance work on their properties.
7. In 1999 he was asked by Cluttons to quote for work to be done on Elm Tree Farm. This was to decorate the exterior of the building. The defendant frequently used the claimant's firm to carry out works and he did so on this occasion. On 10 August 1999 King's gave a quote to the defendant for the exterior painting and on 14 August the defendant sent his own quotation to Cluttons. (see pages 186 and 192 of the trial bundle),
8. The claimant's firm was instructed by the defendant to do the work. This commenced in about the month of March 2000. Initially the work involved painting and decorating but it soon became apparent that some external woodwork needed replacing and this was also undertaken by the claimant. He "employed" a carpenter, Martin Burt, to assist with this work. It was necessary to have scaffolding, at least for this new work. There is some dispute as to when and why scaffolding was required but this is not material to the case.
9. The defendant arranged for the scaffolding to be erected and used a firm, TC Scaffolding, for this purpose. Initially the scaffolding was at one gable end of the farmhouse and when the work on that part had been completed it was moved to the opposite end. There is no dispute that on both occasions TC Scaffolding erected the scaffolding competently and properly and no complaint is made against that firm.
10. TC Scaffolding did not supply a ladder to reach from ground level to the first stage. 1 accept that this is common practice for safety reasons so as to prevent unauthorised access to the scaffolding. No one complains about this but herein lies the heart of this case.
11. On 5 June 2000 the claimant arrived at Elm Tree farm. He got there at around 7.40 am. Mr Burt had not arrived by the time that the claimant was ready to start work. On previous days it would seem that Mr Burt used his own ladder to reach the first stage of the scaffolding. On this occasion, as he had not arrived, and as the claimant wanted to get on with the work, the claimant used his own ladder.
12. The claimant put up his ladder and started to climb it. He has little recollection of anything thereafter. He was found at the foot of the ladder seriously injured and was air lifted to hospital, He is unable to say how the accident happened but the tenant of the farm, Mr Hugh Tucker, recalls that the ladder was still up against the scaffolding but was slightly askew. (see page 166)
13. It is, of course, for the claimant to satisfy me on the balance of probabilities as to how the accident occurred. The fact that the ladder was askew leads to an inference that it shifted and that caused the claimant to fall off. I am prepared to draw that inference and to therefore find that this was the cause of the accident. Counsel for the defendant did not suggest otherwise.

THE LAW

14. As I have already indicated this case is put solely as a breach of statutory duty. The relevant regulations are the Construction (Health, Safety, and Welfare) Regulations 1996. We are concerned with the following:-

4(1) 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

(3) 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.

(3) It shall be the duty of every employee carrying out construction work to comply with the requirements of these regulations insofar as they relate to the performance of or the refraining from an act by him.

There is no dispute between the parties that the work undertaken by the claimant was construction work within the meaning of the regulations.

15. These regulations therefore lay a duty upon:-

(a) Any employer

(b) Any employee or self employed person.

(c) Anyone, not being an employer, who controls the way in which construction work is carried out.

The duty is therefore laid upon the claimant himself, whether as an employee of the defendant or self-employed.

It is also laid upon the defendant if he employed the claimant or, if not, if he "controlled the way" in which the construction work was carried out by the claimant.

16. What is the duty?

5(1) There shall, so far as is reasonably practicable, be suitable and sufficient safe access to and egress from everyplace of work etc.

6(1) Suitable and sufficient steps shall be taken to prevent, so far as is reasonably practicable, any person falling.

Where a ladder is used the requirements of schedule 5 apply and the relevant provision for this case is paragraph 2(c):-

(A ladder shall) where it is of a length when used of 3 metres or more, be secured to the extent that it is practicable to do so and where it is not practicable to secure the ladder a person shall be positioned at the foot of the ladder to prevent it slipping at all times when it is being used.

17. It is the claimants case that he was either an employee of the defendant or the defendant controlled the work and that therefore the defendant had a statutory duty to provide a safe means of climbing the scaffolding. As this involved a ladder the duty was to provide either a fixed ladder or to ensure that the ladder was "footed" when used by the claimant.

The claimant accepts that he was under a similar duty and that therefore he must bear some of the blame for the accident.

18. It is the defendant's case that he had no such duty on the basis that he was not employing the claimant nor was he controlling his work and he further maintains that the accident was entirely the fault of the claimant.
19. The first question that I must decide is whether the regulations apply to the defendant at all.

WAS THE CLAIMANT AN EMPLOYEE?

20. I have no doubt that the parties did not regard this as an employer/employee relationship. They saw it as one of main contractor/sub-contractor. This is not, in itself, determinative but it is a factor to take into account.
21. Similarly, the extent, if any, to which the defendant controlled the work done by the claimant is not determinative of the relationship but is again a relevant factor to consider.
22. Today the courts adopt three possible tests. These are helpfully summarised in Butterworths Employment Law Guide, third edition, at paragraph 1.06 and are:-

(a) the organisational test: was the claimant an integral part of the defendant's organisation?,

(b) the economic reality test: who bears the risk of loss and the chance of profit? Was the claimant really in business on his own account?

(c) the multiple test: looking at all the relevant factors, do the scales come down in favour of employment or self employment. This is now the most widely used test.

23. In applying these tests, and I propose to apply all three, what are the relevant facts? They are the following and in so far as there is any dispute I find as follows:-

(a) The claimant fixed his own rate of pay by quoting for the initial work and by requiring an hourly rate for the carpentry work.

(b) The claimant provided his own tools and the necessary materials.

(c) The claimant himself sub-contracted the carpentry work to Mr Burt and was entirely responsible for his remuneration, and also, it would appear from paragraph 20 of his statement (page 153) employed a glasier- (see also the invoice at page 263)

(d) The claimant had complete control over the way in which this job was carried out. He organised the work. The defendant only attended the site about once a week and had no men of his own on site,

(e) The total payment for labour and materials was paid on an invoice raised by the claimant when all work had been completed. (see page 263)

(f) The partnership, King Decorators, was a successful business with a turnover of around £127000 in the year 2000. It had a number of major customers including the Somerset County Council. In other words it was not dependant upon the defendant for work, This was the evidence of the claimant

(g) The parties themselves regarded the relationship as that of main contractor/sub-contractor,

24. How then do the tests measure up against these facts?

(a) The organisational test. The claimant was in no way an integral part of the defendant's firm.

(b) The economic reality test. Of course the defendant benefited from the work done by the claimant. He was able to charge the trustees of the estate and make a profit. In my judgement however the facts lead to the inescapable conclusion that the claimant was in business on his own account, making his own profit from the contract.

(c) The multiple test. Looking at all the factors which I have set out above and in particular the method of payment, the organisation of the work, the provision of tools and materials (save for the scaffolding), and The fact that the claimant was in business on his own account, I have no hesitation in concluding that the scales come down in favour of self-employment.

25. Whichever test is applied I am satisfied, and so find, that the relationship between the claimant and the defendant was not that of employer/employee but that the claimant was self-employed. I must therefore consider whether the defendant falls within regulation 4(2).

WAS THE DEFENDANT A PERSON WHO CONTROLLED THE WAY IN WHICH THE WORK WAS CARRIED OUT?

26. I have already stated that the claimant had complete control over the way in which he carried out his work. This is one of the factors that I rely upon in concluding that he was not an employee. The fact that the defendant did not control the work of the claimant to an extent which would give rise to an employer/employee relationship is not conclusive. The regulations impose a duty upon a person who is not an employer if that person controls the way in which any construction work is carried out. In other words it is possible to have a situation where although the element of control sufficient to give rise to an employer/employee relationship is absent, nevertheless there is sufficient control to impose a duty under regulation 4(2).
27. There is no doubt that the defendant was, in a sense, in control of the construction work, He was the main contractor and charged with getting the job done. He provided the workforce by sub-contracting to the claimant and he provided the scaffolding by instructing TC Scaffolders to erect it. Is this, however, sufficient to bring the defendant within the ambit of regulation 4(2)?
28. It is necessary to look carefully at the wording of the regulation.

It shall be the duty of every person who controls the way in which any construction work is carried out by a person at work etc.

I have highlighted in bold the words which seem to me to have a significance in considering the scope of the regulation.

29. The regulation would seem to require more than merely controlling the work. It requires control of the way in which a person at work is carrying out his work.
30. There does not seem to be much authority on this regulation. I have however been referred to the case of McCook v Lobo and others [2002] EWCA Civ 1760 which does provide some guidance. Judge LJ at paragraph 16 says this:-

"The requisite level of control before the duty does arise, however, is linked to the way in which the construction work is carried out and it is confined to construction work within the individual's control........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 judgement, a question of fact. It is not answered affirmatively by demonstrating that an individual has control over the site as an occupier.......The required control is related to control over the work of construction."

and Hale LJ(as she then was) at paragraph 28 says:-

"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."

31. The work the claimant was carrying out was painting, decorating, and carpentry work. The way in which the claimant organised and carried out this work was entirely within his own control as I have already found. On the facts of this case I am unable to find that the defendant controlled the way in which the claimant carried out his work - the opposite is the case.
32. In these circumstances I have reached the conclusion that the defendant does not fall within Regulation 4(2) and that no liability attaches to him under that regulation. The claim must therefore fail.

CONTRIBUTORY NEGLIGENCE

33. I think, however, that in this case it is appropriate to consider the position if I had reached the opposite conclusion. Both counsel invited me so to do.
34. The regulations would have imposed an equal duty upon both claimant and defendant, and it was accepted by the claimant that he was partly to blame for the accident.
35. The duty imposed upon each of them would have been:-

(a) so far as is reasonably practicable to ensure safe access to and from each place of work (regulation 5(1))

(b) to take suitable steps to prevent any person falling (regulation 6(1))

(c) to ensure that the ladder used to gain access to the scaffolding platform was secured to the extent that it was practicable so to do and if not practicable then to position a person at the foot of the ladder to prevent it slipping at all times when being used. (schedule 5)

36. The case for the claimant was put primarily upon a failure to comply with schedule 5. It is also alleged that there was a breach of regulation 5(1) in that no safe access was provided to the scaffolding platform. However as the only method of access was, quite properly, a ladder, it seems to me that this alleged breach is subsumed into the breach of schedule 5.
37. It is said on behalf of the claimant that the proper way to comply with the regulations would have been to provide a fixed ladder permanently in place. This would doubtless have required some means of preventing unauthorised access when the contractors were not on site. I accept the evidence of the scaffolding contractors that it is nowadays common practice not to supply a ladder up to the first stage for security reasons. I consider that it was an acceptable practice for access to be gained by means of a ladder erected each day.

Furthermore it is the claimant's case that this was the first day of work on this gable end. If that is right, and accepting that the scaffolders were under no duty to provide a fixed ladder, it was inevitable that a ladder would have to be positioned at the start of this day. Such a ladder could not be secured initially until the first person had ascended it and tied it. Indeed the claimant remembers that he had a length of rope with him for this purpose.

38. So, in reality, the duty imposed upon these two parties in the circumstances of this case was to ensure that the ladder was "footed" or in other words that a second person was positioned at the foot of the ladder to prevent it slipping.
39. Neither party complied with that duty. Did the failure so to do cause the accident? I have already found, on balance, that the accident was caused because the ladder shifted position. If it had been "footed" then it is reasonable to assume that the ladder would not have slipped and that the accident would not have occurred. I therefore find that the failure to foot the ladder was the cause of the accident.
40. In these circumstances it seems to me that, as each had the same duty, it is reasonable to take, as a starting point, an equal apportionment of blame. It does not, however, follow that this should be the end point.
41. The use of a ladder in these circumstances is inevitably a risky business, at least until it can be secured; and this can only be done properly once it has been asconded. It is for this reason that the regulations exist requiring it to be footed. Even if the regulations did not highlight this risk I would have considered it to be obvious to any competent painter and decorator such as the claimant. Indeed, if one looks at the transcript of the claimant's evidence as a whole it seems to me, and it seemed so at the time he gave his evidence, that he appreciate the risk he was taking.
42. The claimant took a risk by ascending the ladder when it was clearly not firmly based or secured in any way. and without getting anyone to foot it. He did not have to take this step. He could have waited for Mr Burt to arrive or sought help from the Tuckers. He took a chance and, no doubt, in 99% of cases no accident would have occurred. Tragically in this case it did.
43. It seems to me that the correct approach is as follows:-

a. If the regulations had applied to the defendant then he would have had a duty to ensure that any ladder used by the claimant to access the scaffolding was secure.

b. Because the ladder was not secure the accident happened.

c. It cannot be said that the failure of the defendant to comply with his duty had no bearing on the accident.

d. The claimant equally had a duty but also he took an obvious risk. There must be a high finding of contributory negligence.

44. If I had found that the regulations applied to the defendant I would have found him liable but I would have assessed the claimant's contributory negligence at 75%.

DIRECTIONS

45. The claim therefore fails for the reasons I have given. I direct that:-

a. A copy of this judgement shall be sent to each party.

b. The case shall be listed at 10.0 am on a date convenient to the parties in the week commencing 2 August 2004 for half an hour when I shall formally hand down this judgement. It will take effect from that date.

c. The parties are to liaise with listing to fix a suitable date in that week.

d. At the hearing I will deal with any consequential orders or directions.