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

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Claim No. Royal Courts of Justice Strand. London. WC2A 2LL
		01 July 2005

Judge Playford:

Introduction

1. On the 6th February 2000 the claimant, Robert Hood aged 46, fell through a perspex skylight in the roof at the Parcel Force Workshops in Nova Scotia Street, Birmingham. He fell some 35 feet onto what appears from the photographs to be a concrete floor. Not surprisingly his injuries were grievous. He was on the roof in the course of his employment by Mitie Property Services (Midlands) Ltd ("Mitie"), against whom he brought this action, alleging various breaches of the Construction (Health, Safety & Welfare) Regulations 1996 and negligence. Mitie have settled his claim on payment of £1,650,000 in respect of damages and £132,500 costs. The reasonableness of that settlement is not now in dispute and before me Mitie, while acknowledging that the lion's share of blame must rest with themselves, seek to recover some contribution from Royal Mail Group PLC ("the Post Office" -- a term which I will use to embrace it and all the subsidiary companies or divisions of the Royal Mail Group) pursuant to the Civil Liability (Contribution) Act 1978.
2. It remains to note in this Introduction that Mitie were subsequently prosecuted for breach of s.3(l) of the Health & Safety at Work Act etc. 1974 and for breaches of Regulations 4(1) and 7(1) of the 1996 Construction Regulations. To those charges Mitie pleaded guilty. The Post Office was also prosecuted for breach of s.3(l) of the 1974 Act and it, too, pleaded guilty.

The Contract and its Performance

3. The Post Office were the occupiers of the building, a substantial industrial edifice. It had a pitched, flattish roof, the pitch being about 10° and the distance from the ridge to the eaves being at least 24 feet. The roof itself consisted of corrugated asbestos/cement panels bolted to rafters and purlins. In some cases there were substituted perspex or plastic panels, which served as skylights. Some of the skylights, 32 in all, were leaking and the Post Office instructed Mitie to undertake the necessary repairs. Mitie instructed two of their employees to do the work. They were the claimant and Mark Tracey.
4. Mr Craddock, the Health & Safety Inspector who investigated this case explained that cement on its own was not used for roofing panels but, bonded with asbestos, was very commonly used for that purpose. The inclusion of asbestos gave panels a fire-resistant quality but did not affect their fragility or load-bearing properties. Anyone with experience, so he maintained, who looked at the roof in question, the profile of the panels and the way they were bolted, and the age of the building, would have presumed that they were asbestos/cement. Such a person would, therefore, realize that the roof was fragile. By 'fragile' he did not mean that the roof was necessarily incapable of bearing the weight of a man but rather that it was liable to break on being subjected to an impact or sudden load, as from something dropped or a man overbalancing or tripping. So long as a man followed the line of bolts, denoted by an underlying purlin, and so long as the panel was sound and properly supported, it would probably not give way; indeed, it would not necessarily give way, even if he left the line of bolts, although clearly the further from any supporting steel he went, the greater the risk of collapse.
5. In fact, the risk that the asbestos/cement might give way did not materialise in this case. There is no evidence of any failure of that material. The accident happened when Mr Hood, who was alongside a skylight working from a cat ladder hooked over the apex of the roof, overbalanced and fell through the skylight. Being made of perspex or plastic it was manifestly unable to support his weight and, lacking a harness, guard rail or anything else to stop him falling, he was unable to save himself.
6. Mr Hood and Mr Tracey are described as 'multi-trade operatives'. Both were mature men with experience of roofing work. Neither had been long employed by Mitie, the claimant having started on the 18th October 1999 and Mr Tracey on the 29th November 1999. Mitie itself is part of a substantial nationwide group, which in 1999 had a turnover of some £300m. The job in question, therefore, which consisted of applying materials, flashband and bitumen out of a drum weighing 25 kgs or more, to the leaking skylights was, or should have been, well within the resources and abilities of employer and employees. It was a small job costing £1,159.61 plus VAT. Each light took, according to Mr Tracey, 5 to 10 minutes and, having arrived on site at 8.30 -- 9 a.m. they were well on their way towards completion when the accident occurred at about 9.30 - 9.45.
7. The Post Office is, of course, a substantial undertaking, employing a large number of people and occupying many buildings throughout the land. By 1998, as is clear from the statement of Michael Sinclair (B/196), arrangements for the maintenance of property had become unwieldy and too costly, with 24 - 30 different regions all doing their own thing with some 450 different types of building fabric contract. So, there was set in train a programme of re-organisation and centralisation intended to promote efficiency and economy. As part of this programme, applications were invited from contractors willing to undertake maintenance work for the Post Office, which continued to have its own maintenance subsidiary, and, in the result, 19 contracts were set up based on geographical boundaries. One of these contracts, for the Midlands region, was awarded to Mitie. It was clearly a prestigious contract.
8. I do not feel that it is necessary to dwell on the tendering process, which was dealt with at some length by the Post Office witnesses Michael Sinclair (B/196), Martin Sanford (B/222), Richard Spear (B/86) and Peter Sinclair (B/132). This was manifestly no casual selection from the Yellow Pages. Detailed questionnaires were followed up by personal interview, with senior Post Office personnel assisted by independent professionals facing across a table senior personnel on the contractors' side, including in the case of Mitie their safety adviser, Robert Warwick. Matters concerning health and safety work were, I believe but contrary to Mr Warwick's assertion (B/12), considered in-depth. It is beyond argument that the Post Office did take such steps as it reasonably should have taken to satisfy itself that the contractor, Mitie, was competent to do work that included the work in question. Mr Purchas Q.C. has not sought to argue to the contrary.
9. In the event, Mitie entered into a formal written contract with the Post Office. This was a very substantial document, occupying virtually all of Bundle D2, over 400 pages, and including the Standard Form of Measured Contract, Preliminaries, Preambles and Annexes. It included at D2/595 the written Health & Safety Policy of Mitie -- itself some 30 pages long. This document at page 613 and the good practice set out in HSG 33 required Mitie before undertaking roof work to appoint a competent person to carry out a risk assessment, which was to take into account the hazards likely to be encountered on the roof such as "fragile materials". This was necessary not just to ensure the safety of men working at high level but, if the work was to exceed £250, a quote had to be submitted.
10. Pursuant to this contract the Post Office on the 15th of December 1999 issued a Works Order (F/20) as follows:

" FAULT: ROOFING METAL DECK SHEET. DESCRIPTION: ROOF LEAKING. UNIT B REAR OF BUILDING METAL SHEET TYPE ROOF".

Standard words at the foot of the document included

"Instruction to Suppliers.... refer to the site logbook for specific information (e.g. warranties, hazards, procedures etc) before commencing work".

11. Mr Tracey was the person detailed by Mitie to make the assessment, which he did before Christmas 1999. He saw Mr Colley on behalf of the Post Office and he saw the building from the inside and from the outside at ground level but he did not go onto the roof. He could see the skylights but he could not see the underside of the roof itself. The shallow pitch and height above ground of the roof prevented it from being seen easily but Mr Barnard, the expert witness for the Post Office, said, and I accept, that by going out of the premises and into the street and standing about 20 yards from the building one could see the roof. One could see that the roof was obviously very different from the vertical cladding and was certainly not metal, the likelihood being that it was made of some form of fibre/cement sheeting.
12. Mr Tracey was unclear whether he said anything to Mr Colley about the roof or asked what it was made of. In a statement made to an inquiry agent he said that he did ask and Mr Colley said that he had no idea what the roof was made of. Mr Colley has not given evidence. So, at the stage of the risk assessment the only information about the roof that Mr Tracey had was, so he says, confined to what he could see without going out into the street, coupled with the Works Order, which he claims he was given and read. However, he did not go on reading the document and did not see what was said about the logbook. He did not ask for that and Mr Colley did not volunteer it; had he seen it, he would have gathered in the most general terms that there were fragile roofs on that site.
13. On the basis of his assessment Mr Tracey decided how the job should be done. His plan was that, having obtained access to the roof via an extension ladder, he and the claimant were to work each from one of two cat ladders, which were to be moved from skylight to skylight. The work was to take place on a Saturday morning, when employees of the Post Office would be at work. Mr Tracey paid a further visit to the site on the 2nd February 2000 but this was primarily to arrange for access on the following Saturday, the 5th February, and nothing that bears on the assessment or on safety issues seems to have emerged on that occasion.
14. Mr Tracey discussed his plan with his superiors, Mr Martin, who was responsible for preparing the quotation, and Mr Cullen, Mitie's contract manager at that time, who was under considerable pressure owing to staff shortages. Both considered that the proposed system of work was safe on the basis that two cat ladders were used and that they were long enough to reach from ridge to eaves. Mr Martin has no recollection of discussing with Mr Tracey what the roof was made of; as he put it in evidence "It didn't matter to me what sort of roof it was".
15. Mr Cullen's first statement dated March 2004 likewise made no mention of what the roof was made of nor did he suggest that this was a critical matter in regard to safety. But in his second statement the emphasis was different: the Works Order showed that the roof was constructed of metal sheet and on that basis the proposed and approved system of work was "entirely suitable and appropriate". Thus, from initially blaming the claimant for failing to implement a system that was safe, Mr Cullen altered his position so as to blame the Post Office for giving misleading information and for making "absolutely no reference" to the roof being of asbestos/cement or being fragile. This was despite disclosing in his statement to Mr Craddock, made shortly after the accident, that Mr Tracey had told him that he had known that the roof was made of asbestos/cement. In evidence he confirmed that he had no knowledge of the state of the roof but he and Mr Martin emphasised how "alarm bells" would have rung, if only they had known that the roof was asbestos/cement.
16. The system devised and approved by Mitie did not meet with the approval of Mr Craddock. He thought that a suitable cherry picker was the best way to do the job. Even after the accident no one suggested that solution and such was the inability of Mitie's senior personnel to satisfy him in regard to a safe method of doing the work that still remained to be completed that he imposed a prohibition on Mitie continuing to work on the site.
17. In the event, the work did not follow the plan in a number of respects:

(i) It was decided not to do the work on the Saturday morning because, as Mr Tracey said on oath and in his statement, the weather was poor. To Mr Martin, Mr Cullen and Mr Summers the reason given was that the claimant had been drinking on the Friday night and did not want to work on the following morning. This change of plan meant that the site was locked and deserted. Access to the roof had to be obtained from the street rather than from the yard;

(ii) As soon as the two men reached roof level, they saw that the roof was clearly not metal. Mr Tracey claimed not to believe that it was made of asbestos/cement, saying that he thought it was made of cement. But, whatever he thought, it did not cause him to stop work or to change his plan or to telephone for instructions;

(iii) The ladders were by no means long enough to reach from the ridge to the eaves, as can clearly be seen in the photographs. Furthermore, the 'hooks' intended to fit over a roof ridge would, because of the shallow pitch of this particular roof, have rested on the downward sloping roof on the other side of the ridge, thus causing the ladder at its higher end to be proud of the roof, with potential for instability. The ladders were intended for climbing, not crawling, which meant that the men would have been standing or kneeling on the rungs when working;

(iv) At an early stage the men decided that it was easier to work with one ladder. So the second ladder was discarded;

(v) It seems quite evident that both men walked on the roof - indeed it is difficult to see how the work, including manoeuvring the bitumen drum visible in the photographs, could be done without walking on the roof. Mr Tracey said that they walked along the lines of bolts, thereby keeping to the purlins, having done a somewhat basic test, namely listening for cracks and observing whether their progress caused damage.

Conduct of Mitie

18. Mr Craddock described the system for doing this job as "appalling". I agree. Such system as did exist was not followed by Mr Tracey and Mr Hood, at a time when on Mr Tracey's own evidence he could see that the roof was likely to be fragile. No doubt it was easier to use one ladder rather than two but, if they were going to walk on the roof, as they did, it would have been easier still to have no ladder at all, especially when the one that they did have with them was too short and unsuitable. Furthermore, whether they were working from a ladder or not, the men were on any showing working without protection of any kind by or in very close proximity to an unguarded drop of 35 feet. In terms of blameworthiness, the conduct of Mitie was, as it seems to me, of a very high order.
19. I do not limit my criticism to what happened on that Sunday morning. Whatever was in Mr Tracey's mind in regard to the Works Order, the risk assessment that he was required to make was perfunctory to say the least. No attempt was made to access the roof or even to look at it from ground level, even if that meant walking a few yards out into the street. In fact, there was nothing at all that could properly be described as a risk assessment. The reason is clear, as Mr Tracey explained in evidence: for 20 years he has worked on roofs of all kinds and he has always used the same system - get a ladder, work off it and walk along the line of the bolts. He has not felt that this was dangerous and, seeing that this was just another roof, there was no need for any risk assessment, since nothing unusual was anticipated. He would simply follow his usual system.
20. I have some sympathy for Mr Tracey. He had done a variety of jobs in the past, such as roofer, carpenter and doorman, and here he was, having been in Mitie's employment for about two months, with the title of 'multi-trade operative', sent out to carry out a risk assessment. Neither he nor Mr Hood had received any induction training and, due to what Mitie's safety adviser, Mr Warwick, described as "a lapse in the system", monthly safety talks did not take place. It was Mr Cullen, who realised that the men had had no induction training. He arranged for Mr Warwick to give some training on the 5 January 2000, which took the form of a 'toolbox talk' lasting about an hour. This was, of course, after the risk assessment had been made and, although it preceded Mr Tracey's visit on the 2nd February, its content, even if it covered all the topics set out by Mr Warwick, did not prompt a review of the proposed method of doing the work.
21. I have already outlined the procedure adopted by the Post Office for assessing the competence and safety practices of contractors applying for one of their regional contracts. At page D1/302 there is a record of Mitie being asked: "How often do you hold health and safety meetings with members of staff?" A satisfactory answer to that question was, as Peter Sinclair told me, a pre-requisite to being awarded a contract. He wrote the word ' monthly' against the question and I am satisfied, on his evidence and that of Mr Sanford, that it was Mr Warwick, Mitie's safety officer, who gave that answer to the question, Mr Warwick denied that he said 'monthly'.
22. In my view, Mr Warwick well understood the importance that the Post Office were attaching to safety matters and he deliberately gilded the lily by representing that monthly talks were given when, as he knew, that was not the case. I can find no convincing evidence that Mr Tracey received any training whatever, apart from that given on the 5th January 2000. Even in respect of that toolbox talk, it is not certain what subjects were covered. Mr Tracey had a sketchy recollection, although he was given access to documents which included Mitie's handbook. In the absence of contemporaneous documentation, I lack confidence in Mr Warwick's recollection.
23. So far as causative potency is concerned, lack of training, a failed risk assessment and a thoroughly deficient system of work set the scene for Mitie's culpability but are not directly in point. In fact, whatever the demerits of walking on a fragile roof, no asbestos/cement panel did in fact give way. The accident occurred because, as I have already made clear, Mr Hood was working in very close proximity to an unprotected drop, with nothing to hold onto or to break his fall, should he overreach, wobble or overbalance. The skylight was worse than useless because, unlike an open space, it could provide a resting place for tools, which could cause a man to reach out onto it, or support for a hand, which in turn might support the weight of a man's upper body. The peril of working so close to a flimsy plastic skylight was obvious on cursory examination from within the building and without any need to go onto the roof. That peril existed regardless of the composition of the more solid roof panels.
24. Mitie, as the employers of Mr Hood, plainly owed him a duty to take reasonable care for his safety and to comply with the Regulations. In terms of causative potency, therefore, Mitie were in my judgment to a high degree responsible for what happened because they negligently and in breach of Regulations 7(1) and (2) failed to take steps to prevent the claimant from falling through fragile material, namely the skylight. That failure led directly to and caused the accident.

The Conduct of the Post Office

25. Apart from the Works Order there is no evidence that the Post Office concerned themselves with the way in which Mitie carried out the contract. They had no one on site on the Sunday morning; on the contrary, the site was locked and secured, which caused difficulty for Mr Tracey and the emergency services obtaining access to the unconscious Mr Hood, a situation which itself led to criticism by Mr Craddock. As Mr Warwick put it at paragraph 1.7 of his witness statement: "To my knowledge, the Post Office did not have any involvement in the system which was established to undertake the works.... in essence, I think that the Post Office was totally passive". Apart from the Works Order, which is said to have been positively misleading, Mitie's case for contribution is based on negative assertions, namely that Mr Colley gave no indication that the roof was fragile, that there were no signs on the roof warning of its fragility and that the site register or logbook, which contained a warning that there were fragile roofs on site, was not brought to Mr Tracey's attention.
26. Before reliance can be placed on allegations that the Post Office were, or would have been, liable to Mr Hood for failing to take these or any steps, it has to be shown not only that there was a breach of duty which caused the accident, but first that the Post Office were under a duty to take such steps. Mr Purchas contends that they were under such a duty at Common Law, under the Occupiers' Liability Act and by virtue of the Construction Regulations.
27. Common Law. Mr Purchas submits that there is a freestanding duty at Common Law imposed on the Post Office, which subsists independently of any duty under the Occupiers' Liability Act. There is, so he says, proximity and forseeability and it is reasonable and fair that there should be such a duty, having regard to the dangerous nature of the work being undertaken.
28. In my view, the work being undertaken, while of course it had its obvious dangers, cannot possibly be described as extra-hazardous. In the construction and similar industries there are many sources of danger, even very serious danger, and it would be quite wrong and productive of great uncertainty, were roofing work to be singled out as giving rise to a special duty.
29. In any event, if the alleged duty is imposed on the Post Office as occupier, "occupancy liability" has for nearly 50 years been regulated, in place of Common Law duties, by the rules established by the Occupiers' Liability Act. In particular, Section 2(3)(b) provides that the occupier may expect that a person in the exercise of his calling will appreciate and guard against any special risks incident to it, so far as the occupier leaves him free to do so. As was pointed out in Bottomley v Todmorden Cricket Club (2004) PIQR 275 at p. 288: " Occupiers usually escape liability in a case such as this because they can show", as have the Post Office in this case, "they have taken reasonable care to select competent and safe contractors...." and, having done so, it is then up to the latter to guard against any special risks.
30. I recognise that in Ferguson v Welsh & Others (1987) 1 WLR 1553 the House of Lords entertained the possibility that in special circumstances a person who engages an independent contractor may become liable, seemingly as a joint tortfeasor rather than an occupier, to an employee of the contractor. But they found no such circumstances in that case, which involved the potentially dangerous activity of demolition.
31. In my view, to impose a Common Law duty of care on the Post Office would be tantamount to imposing on the Post Office the duty of an employer of Mr Hood. Such an imposition would, I think, be neither fair nor reasonable and it would constitute a departure from established principle. In any event, I have in mind what Judge LJ said in McCook v Lobo [2003] ICR 89 at p. 93, when faced with a similar submission based on Kealey v Heard [1983] ICR 484:

" In my judgment, however, it is inappropriate and unnecessary to treat potential liability, as explained in Kealey, as distinguishable from the common duty of care owed by an occupier of premises under the Occupiers' Liability Act 1957 unless a distinct simultaneous duty also arises: for example, from the relationship of employer and employee".

32. The Occupiers' Liability Act. The claim in this regard is based on the negative assertions mentioned above, which essentially boil down to an allegation that there was a failure to warn Mitie or its employees that the roof was fragile. I do not doubt that the Post Office owed to its visitors, including Mr Hood, the common duty of care, that is a duty to take such care as in all the circumstances is reasonable, but the circumstances relevant for that purpose include the degree of care to be looked for in the particular visitor. If a visitor is sent on behalf of an employer, who professes a competence to do routine roofing jobs and who represents himself as having a diligent and conscientious approach to safety, I am quite unable to see why the Post Office should not expect the visitor, be he Mr Tracey or Mr Hood, to appreciate and guard against the risks ordinarily incident to the job. There was nothing even very "special" about the risks involved in this case; the effective risk, namely working at high level in close proximity to an unguarded drop, was patent to Mr Tracey from the time of his first visit. He may not have had specific knowledge that the roof, apart from the skylights, consisted of asbestos/cement sheets but even that fact he knew - and ignored - as soon as he obtained access to the roof. As to fragility, the proper approach is to assume that a roof is fragile until the contrary is established; certain is it that neither Mr Tracey nor Mr Hood, experienced roofers both, had any basis for assuming that the roof was anything but fragile.
33. I can well see, of course, that the failure by the Post Office to put up warning signs or otherwise give warning that it was dangerous to walk on the roof might give rise to liability towards different visitors and in different circumstances. But I am concerned with these visitors and these circumstances and Section 2(3)(b), particularly in combination with Section 2(4)(b), must make the attempt to impose liability under this head untenable. In any event, it seems clear that Mr Tracey and Mr Hood in fact had knowledge of the danger; even if there was a failure to warn of the risks, that failure did not cause this accident.
34. The Regulations. Regulation 4(1) imposes on an employer and on every self-employed person carrying out construction work, a duty to comply with the relevant regulations. Regulation 4(2) imposes on every person "who controls the way in which any construction work is carried out by a person at work" a duty to comply with the relevant regulations, " insofar as they relate to matters which are within his control". The issue, therefore, is whether the Post Office controlled the way in which Mitie's work was carried out; if it did have control, then it was under a duty to comply with those regulations that were within the area of its control. The language of Regulation 4(2) is similar to that of Regulation 5(2) of The Workplace (Health, Safety & Welfare) Regulations 1992; I doubt whether the words "to any extent" in the latter regulation adds much to the word "control" on its own.
35. In the case of McCook (supra) the Court of Appeal established the following propositions:

(i) Whether the appropriate level of control is exercised so as to create a duty to comply with the relevant regulations is a question of fact;

(ii) The obligation to perform the duty provided by the regulations cannot be avoided by abdicating responsibility;

(iii) Control in fact is what has to be shown, not power to control.

36. Seeing that the complaint, and least of Mr Warwick, appears to be that the Post Office were too passive, it is difficult to see any sound basis for concluding that the Post Office exercised control over the way in which the job was carried out. They were not present when the work was being done and there is nothing whatever to suggest that Mr Colley or anyone else exercised any control at the planning stage. Mr Alford, the expert for Mitie, refers in paragraph 6.1.b of the Joint Statement (C/147) to the control by the Post Office over the premises and I have no doubt that the Post Office could, had it seen fit to do so, have intervened in the works, in exercise of its rights as owner/occupier or as a contracting party with commercial muscle. But this is not control in fact of the way in which the work was done; it is at best a power to control the work and was considered by Judge LJ at p. 94D:

" 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".

37. Mr Purchas submits that, when regard is had to the Management of Health & Safety at Work Regulations 1999, which came into force on the 29th December 1999, less than 6 weeks before the accident and after Mr Tracey's assessment had been made, there was control in fact. These regulations require every employer to make a suitable and sufficient assessment of the risks to the health and safety of his employees to which they are exposed at work and, by Regulation 3(l)(b), of "persons not in his employment arising out of or in connection with the conduct by him of his undertaking". The purpose of carrying out the assessment is to identify the measures that the employer "needs to take to comply with the requirements and prohibitions imposed upon him by or under the relevant statutory provisions..."
38. Regulation 22, however, specifically provides that breach of duty under the 1999 regulations shall not confer a right of action in any civil proceedings. In this respect the regulations, made under the Health & Safety at Work etc Act 1974, follow that Act, which by section 47 similarly excludes a right of action in any civil proceedings. The regulations, like the Act, form part of a statutory regime, distinct from the civil law, that imposes criminal sanctions for breach of obligations relating to health and safety. The distinction between the civil and criminal regimes is made clear by R v Associated Octel Ltd (1996) 1 WLR 1543, especially by Lord Hoffmann at page 1549.1 cannot see that the conviction of the Post Office for an offence under the principal Act has any relevance to this civil claim.
39. In my judgment, reliance on the 1999 regulations or on the 1974 Act for the purpose of demonstrating control cannot succeed for the following reasons:

(i) A similar argument based on Regulation 10 of the Construction (Design and Management) Regulations 1994 -- a regulation for breach of which civil liability was not excluded - was rejected in McCook. Judge LJ said at page 95F:

"In my judgment, regulation 10 did not create, nor were plans prepared for the purposes of regulation 10 required to create, the sort of element of control of the site envisaged by regulation 4(2) of the 1996 Regulations".

(ii) The purpose of carrying out an assessment was to identify the measures needed to comply with the regulations. If such an assessment had been carried out, the Post Office would have concluded that it was not under any duty to comply with the regulations and consequently needed to identify no measures, because it had no control in fact over the way in which the work was done. For my part, I cannot see how these regulations, which do not confer a civil remedy, can be deployed so as to create, without more, such control over the works as to give rise to civil obligations arising out of the way in which the work is done. The argument, in my view, is entirely circular.

40. In my judgment, this aspect of the case is effectively concluded by the emphatic judgment of Hale LJ in McCook at page 97:

" 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. 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. Nor do I think that a breach by the client of Regulation 10, in regard to a health and safety plan, can alter that position".

It seems to me clear that my factual finding should be that the Post Office was not in control of the way in which Mr Hood was doing his work and Regulation 3(l)(b) cannot alter that position.

41. The Works Order. The Works Order, sent by the Post Office to Mitie on the 15th December 1999, was in the terms already set out. It is accepted by Mr McLaren Q.C. that it was inaccurate but no evidence was led that explained how the error came about. Mr Tracey claims that he was given this document, or a copy, and it formed the basis, coupled with his own observation on site, for his view that he was dealing with a metal roof, with the skylights being fibreglass or plastic. It was not until he went up onto the roof on the day of the accident that he realised that it was made of cement panels. He claims, and is supported by his employers, that if he had known that the roof was asbestos/cement, the work would have been done differently and more safely.
42. I have no difficulty in accepting that, if an occupier of a building negligently makes a misstatement, which is capable of being understood as meaning that in some particular respect the building is safe and which is in fact understood in that way, and if in reliance on it either directly or through his employer the claimant suffers injury, a claim may on principle lie against the building occupier.
43. However, on the facts of this case the claim against the Post Office, insofar as it is based on the Works Order, cannot in my judgment succeed for the following reasons:

(i) The representation is not, in my view, capable of bearing the significance in terms of safety that Mr Purchas claims for it. In particular, in no sense does it warrant or represent or even imply that the roof is safe for people to walk on or that it will bear the weight of a man. It simply tells the reader that the roof (but not the skylights) is made of metal as opposed to anything else. But to be told that the roof is metal takes the matter no further. As Mr Cullen had to acknowledge, even if it was of metal, it could still be corroded; he would want, and should have wanted, to know the profile of the metal, its thickness and its condition before it became relevant to the system of work. Mr Tracey also recognised that a metal roof is not necessarily a safe roof.

(ii) I consider it unreasonable that reliance should have been placed on this misdescription, if, which in my view was not the case, reliance was in fact placed on it to the extent of it being a determining factor in the choice of a system of work. What was required, and what any reasonable building owner might expect from a competent and safety-conscious independent contractor, as Mitie represented themselves to be, whose safety booklet mandated a competent assessment, was a professional assessment tor their own purposes of the construction and condition of the roof, such as would ensure the safety of their own men;

(iii) I do not, consider that Mr Tracey or anyone else did in fact place reliance on the reference to "metal" in the Works Order. In the first place, the words "metal sheet type roof were vague and lacked the precision one might have expected from someone who had first-hand knowledge of the construction of the roof. Secondly, it was obvious that the skylights were not metal and to that extent the misdescription was patently in error. Thirdly, Mr Tracey made no mention to Mr Craddock or anyone else after the accident of thinking the roof was metal or of being misled. No one made such a complaint within a reasonable time of the accident. And so the detailed Health and Safety report of the 18th February 2000, compiled by Mr Belshaw, a safety officer employed by Mitie (Dl/18), made no mention of the roof being metal or of anyone being misled. Instead, the report blamed only Mitie. I find it impossible to accept that Mr Tracey, however lacking in sleep and shocked after the accident, would, at a time when he might have been expected to put forward some excuse or justification for his own conduct, have overlooked altogether the fact that he had been misled, had that been the case;

(iv) I am prepared to accept that Mr Tracey was given a copy of the Works Order and that he did not positively know before the 6th February that the roof was made of asbestos/cement. I do this with hesitation. I thought that Mr Tracey was less than straightforward when he told me that the job was postponed from the Saturday morning because of the weather; shortly after the accident he told at least Mr Cullen and Mr Martin that the job was postponed because Mr Hood had been drinking on the previous evening. Furthermore, Mr Craddock took particular pains to make sure that Mr Tracey's admissions, to the effect that he knew that the roof was made of asbestos/cement, made to him and to Mr Cullen were intentional. But it is, I suppose, possible that Mr Tracey, who certainly did know what the roof was made of when he spoke to Mr Craddock and to Mr Cullen, may have failed to get across to them that he only found that out for sure when he got up to roof level on the 6th February. But it does not follow that I accept that Mr Tracey at any stage had a positive belief that the roof was made of metal. In my view, following receipt of the Works Order, Mr Tracey's state of mind was one of complete indifference: it mattered not to him what the roof was made of and that is why he did not bother to find out about it. In fact, it is my view that all those at Mitie who had anything to do with this contract were indifferent to the composition of this roof. I am wholly unpersuaded by repeated assertions, made long after the event, that if only Mitie had been told that the roof was made of asbestos/cement, alarm bells would have immediately sounded and elaborate schemes involving a cherry picker and/or a scissor lift would have been put in place. Even after the accident at what must have been a time of utmost concern, Mitie were unable to satisfy Mr Craddock that they could do the job safely. In my view, it was only at a later stage that the misdescription in the Works Order came to be seen as something that could prove handy in offloading blame and those concerned managed no doubt to convince themselves that they would have acted differently, leading to a change of position as instanced in paragraph 15 above. But that is not what they thought at the time and that is the reason why nothing was made of the misdescription by Mr Belshaw in his report.

(v) In terms of causative potency, the fact that the roof was not metal was in my view irrelevant. First, it did not, as I have held, register with Mr Tracey as something that mattered and in this he was right, though not necessarily for the correct reason; it did not matter, since any roof needs to be treated as fragile until the contrary is proved. Secondly, Mr Tracey knew that the roof was cement or asbestos/cement before he went onto it and he was able either then and. there to seek instructions before proceeding further or to defer doing the work until a proper assessment had been carried out. In fact he chose to proceed. indeed to reduce such safety provision as there was by using only one of the two ladders provided. And thirdly, the material of which the solid panels were made was in fact irrelevant to this particular accident. As I have already pointed out, no asbestos/cement panel failed. The danger of working at an unguarded edge was patent at all times and the plain fact is that the risk of falling through a perspex panel was ignored.

Contract

44. Mr McLaren's contention is that the contractual provisions operate in any event as a defence to Mitie's claim to contribution. On my findings, the Post Office would not have been liable to Mr Hood and the question does not arise. But out of deference to the arguments that had been presented, I should express my views shortly.
45. It seems to me beyond doubt that, among other cases, Sims v Foster Wheeler Ltd (1966) 1 WLR. 769, Lambert v Lewis (1982) AC 268 and Barclay's Bank plc v Fairclouch Building Ltd (1995) QB 214 establish that, where a contract imposes a strict liability on a defendant, he will not be able to claim contribution from the other contracting party on the basis that the latter should have prevented the defendant's breach. This principle should, in my judgment, be read subject to the dictum of Winn LJ in Hadlev v Droitwich Construction Co Ltd (1968) 1 WLR 37 at page 43 which was expressly approved by Lord Diplock in Lambert v Lewis at page 276:

".... in a case where A has been held liable to X, a stranger, for negligent failure to take a certain precaution, he may recover from someone with whom he has a contract only if by that contract the other contracting party has warranted that he need not - there is no necessity - take the very precaution for the failure to take which he has been held liable in law to [X].

46. The principle is most apt where the allegation is that one contracting party should by supervision or checking or possibly by warning or advice have "found the other party out" as Lord Esher Mr put it in Becker v Medd (1897) 13 TLR 313, or prevented some default on its part. As Burnton J put it in Anglian Water Services Ltd v Crawshaw Robins & Co Ltd (2001) BLR 173 at page 191:

" An Employer is entitled to leave the planning, preparation and execution of the work to the Contractor. Indeed, I start from the presumption that in any building or engineering contract, in the absence of terms to the contrary, the Employer cannot be said to be at fault vis a vis the Contractor for not interfering with the execution of the contractual work or to be criticised for not checking that it has been earned out as required by the contract",

In the passage cited in Barclay's Bank at page 229 Lord Devlin is quoted as saying:

".... a man is entitled to act in the faith that the other party to a contract is carrying out his part of it properly... ."

47. I have considerable reservations whether the principle extends as far as Mr McLaren suggests. I have particular reservations in regard to the principle extending so far as to provide a party with what may amount in effect to an indemnity in respect of his own negligence, as Mr McLaren appeared to submit. In this case, the indemnity Clause 6.1 (D2/337) provides that Mitie shall be liable to indemnify the Post Office in respect of personal injury to any person but makes an express exception in regard to injury due to "any act or neglect" on the part of the Post Office.
48. A concluded view must, of course, depend on the identification of an act or neglect of the Post Office before it can be said that Mitie warranted that the Post Office need not take the very precaution that it failed to take. But I find nothing in the contract that warrants that the Post Office need not exercise the common duty of care, whether arising at common law or by virtue of the Occupiers' Liability Act, to the extent that they would ordinarily be under such a duty. On the contrary, Clause 6 .1 would appear to contraindicate any such warranty. On the other hand, Clause 5.1, which is in the same terms as that in Barclay's Bank, would seem to warrant to the Post Office that there was no need for it to take steps to prevent Mitie from committing breaches of the regulations. If, contrary to what I have already held, there were primary obligations, going beyond supervision, on the Post Office to comply with the regulations, I would not necessarily see Clause 5.1, whether considered on its own or in conjunction with the several other terms referred to by Mr McLaren, as disentitling Mitie to contribution in the event of a breach.

Conclusion

49. For these reasons, therefore, Mitie's claim against the Post Office must, in my judgment, fail. I would exempt the Post Office from liability to make contribution, pursuant to section 2(2) of the 1978 Act.