Accident claim - Apportionment of liability
Before : |
R. J. MacRae, Esq., Deputy Bailiff, and Jurats Cornish and Le Heuzé |
Between |
Jose Felipe Camara De Abreu |
Plaintiff |
And |
(1) RS Reinforcements Limited (2) CRN Construction |
Defendants |
Advocate S. C. Thomas for the Plaintiff.
Advocate D. A. Corbel for the First Defendant.
Advocate G. D. Emmanuel for the Second Defendant.
judgment
the deputy bailiff:
1. For four days commencing 24 March 2025, we sat to consider the issue of liability in this case, in particular to determine the extent, if any, to which liability should be apportioned between the two Defendants.
2. The Plaintiff is now forty years old. He moved to Jersey in September 2014 and at the time of the accident on 2 February 2021 had been working in the construction industry for four years as a labourer, principally a steel fixer. In 2019, he began working for the First Defendant ("the Employer"). The Employer is owned and controlled by Rogerio de Sousa, known as Roger de Sousa. Roger de Sousa is the sole director of the Employer. The Plaintiff met Mr de Sousa whilst he was working for another employer. Mr de Sousa founded the Employer in 2018. His wife is the Company Secretary. The Employer specialises in steel fixing, form work, concrete and construction works. Steel fixing is the process whereby steel is used to reinforce concrete in construction, including the erection of walls and columns. At the time of the Plaintiff's accident, the Employer had twenty-three employees, none of whom had English as their first language - the first language of all the employees of the Employer was Portuguese. Some of those working for the Employer were fluent in English, including Roger de Sousa, and his most senior employees, Manuel da Silva and Ruben de Sousa. Ruben de Sousa is a cousin of Roger de Sousa. Both gave evidence and were the only witnesses called on behalf of the Employer. Manuel da Silva and Ruben de Sousa were both team leaders of the Employer. The Plaintiff is not fluent in English. Indeed, all five lay witnesses who gave evidence in this case, the Plaintiff, the two witnesses called on behalf of the Employer, and the two witnesses called on behalf of the Second Defendant ("CNR") gave evidence with the assistance of translators.
3. Many of the facts in this case, including the circumstances of the accident, are undisputed and were reduced to a set of agreed facts. We now set out the relevant facts which are undisputed and then consider the evidence of the witnesses, in particular where it touches upon matters that were in dispute giving, where appropriate, our conclusions on those disputed issues, before turning to the relevant legal principles and, finally, our conclusions having applied those principles to the facts as we found them.
4. CNR is a French company. For the purpose of this case, the key role of CNR was to install platforms rented by CNR from the company that originally designed them, SATECO. These platforms are modern and specialist alternatives to scaffolding.
5. At the time of the accident, the Plaintiff was principally working, and had been working since 2019, on a construction site known as Ann Court, St Helier. The development at Ann Court consisted of the construction of one hundred and sixty-five flats. The principal contractor was a Jersey company called Camerons Limited. CNR was a sub-contractor on the site for the design, supply and installation of concrete and form work. A sub-contract between Camerons and CNR was executed on 11 June 2019, on behalf of CNR by Mr Sebastien Gaudin. He is and was a director of CNR, and provided a statement to the Health and Safety Inspectorate for the purpose of the criminal investigation into CNR under the health and safety legislation which led to the company's prosecution. Although Mr Gaudin did not give evidence, it was not suggested that his account in that statement was inaccurate. Indeed, the two witnesses who gave evidence on behalf of CNR were invited to adopt key paragraphs in his statement, which they did. Statements were taken from various other individuals who were not called to give evidence but gave accounts reasonably contemporaneously with the accident in the course of the health and safety investigation. These included Mickael Rolland, a foreman of CNR, and Clement Leblanc, also a foreman at CNR. Both Mr Rolland and Mr Leblanc were acting under the direction of Zeljko Kezic of CNR, the site manager, who did give evidence. Another statement of importance was that of Jose Pedro Sousa (known as Pedro in the trial), a labourer who worked for the Employer. Although none of these statements were given on oath and were largely hearsay, all parties were content to proceed on the basis that the accounts within them were more or less accurate.
6. CNR subcontracted various works to the Employer for the purpose of steel fixing. The sub-contract was executed by the parties on 16 July 2019. The sub-sub-contract is in Joint Contracts Tribunal ("JCT") form and exceeds two hundred pages in length. The sub-sub-contract described in detail the nature of the task contracted by CNR to the Employer which in general terms was to install steel reinforcements to pre-prepared unexcavated areas, carry out shuttering work, lay concrete foundations and lay slabs. One of the provisions was that "frequent meetings will be scheduled to ensure good communication with the main contractor". Prior to starting work, it was provided that all personnel involved would receive a "method statement briefing and safety induction which they will sign to confirm acceptance. Relevant information regarding the tasks undertaken will be continually communicated during the project".
7. A list of hazards identified to be associated with the work to be carried out were listed and addressed in the overall Employer Risk Assessment document associated with the work. This included "Potential work at height". A list of personal protective equipment to be worn by workers was set out and included the use of hard hats, hearing protection and eye protection (where required) and gloves to prevent hand injuries from sharp, rusty steel. It was declared on behalf of the Employer that all employees had completed the Jersey Safety Awareness Test and that particular employees had various competencies. For these purposes, it was noted that Roger de Sousa and Manuel da Silva were telehandlers, Ruben de Sousa and Manuel da Silva had the MEWP competency, Roger de Sousa and Manuel da Silva had "Work at Height and Harness" competency. It was provided that there would be a maximum of six persons sub-contracted. The Risk Assessment provided "There will not be any work at height above two metres, or work in confined spaces".
8. Various tasks were set out in the Risk Assessment. It was not envisaged by this document that there would be working at height as the only risk of falling was of "workers falling into open formwork". This was said to be a "medium" risk and was to be addressed by "all areas where there is a potential risk of falling must have barriers to prevent such events from happening" and such areas needed to be constantly assessed to prevent falls. The only other risk of falls identified was "into open excavations and foundations due to inadequate edge protection". This was assessed to be a "high" level of risk.
9. A further Risk Assessment for the Employer was carried out by Anthony Pallot in relation to "fixing reinforcement steel". This mentioned the risk of "falls from height" flowing from "work at height". This risk was to be addressed by ensuring that all work at height is risk assessed, and adequate controls are in place. The sub-sub-contract also exhibited the Employer's health and safety policy ("the Policy") written by Anthony Pallot and dated November 2018. This thirty page document is not necessary to summarise for the purpose of this judgment. The Policy begins by saying that the director of the company, Roger de Sousa, is the "individual who is responsible for the Health and Safety Policy covering work activities".
10. Pursuant to the Policy (which although exhibited to the sub-sub-contract was accepted by the Employer to apply to all employees of the Employer in all circumstances) the Employer must "provide a safe working environment", inter alia, "provide information, construction, training and supervision to all staff", and "formulate safe systems of work based on risk assessments and communicate these to staff".
11. The Policy went on to set out a list of directors' responsibilities and responsibilities for team leaders. The first listed responsibility of the director was "maintaining a detailed knowledge of, and compliance with the Health and Safety Policy". The Policy also set out the statutory duty of employees to, inter alia, take all reasonable care to ensure their own health and safety and that others are not adversely affected by anything that they do or fail to do at work.
12. The Policy also provided that:
"The Director acknowledges that communication between employees at all levels is an essential part of effective Health and Safety management and will endeavour to communicate the Company's commitment to Health and Safety and to ensure that employees are familiar with the contents of this Health and Safety Policy. The Company will communicate with its employees through oral and written directions and by example."
13. Notwithstanding that all the Employer's staff were principally Portuguese speakers and many had a poor command of English language, there appears to have been no effort to translate the Policy into Portuguese.
14. In respect of training, the Policy provided (inter alia) that when staff were first introduced to a new role, particularly where the working environment may be hazardous, it may be necessary to undertake training.
15. The Policy contained a provision in relation to "Working at Height". The Employer recognised:
"...its responsibility to protect its employees from falls and will ensure that consideration is given to all working at height and, where reasonably practicable, work at height will be avoided. Risk assessments will be carried for all activities to enable a safe system of work to be adopted."
16. In particular, any scaffolds above two metres would be inspected in accordance with the Construction Regulations 2016, scaffold towers would only be erected by trained individuals and "under no circumstances are makeshift platforms to be used".
17. At the end of the sub-sub-contract, it was provided that the Employer would perform the works "with an independent team" consisting of a foreman and skilled labourers and would work with their own tools.
18. The reason for referring to this agreement, which covered the steel fixers working on site who were employed by the Employer, is to draw a sharp contrast between the role of these employees of the Employer and the employees - including the Plaintiff - covered by what was described as "an informal agreement" which was effectively undocumented, save for an email request made by CNR to the Employer for employees to be supplied by the Employer to the site as labourers, working in particular on the construction of concrete walls. For these employees, of whom there were only ever a handful (and never more than ten employees of the Employer on site at any one time), there was no written contract between CNR and the Employer, there were no provisions in relation to their health and safety on site, and there was no clear demarcation between CNR and the Employer as to who was responsible for supervising these employees, let alone what their duties were.
19. Both experts who gave evidence, and indeed the senior witness who gave evidence on behalf of CNR, accepted that this was an error. One of the issues for us was to determine the extent to which, if any, this contributed to the subsequent accident.
20. The Plaintiff had begun working for the Employer on 27 July 2019, passed the Jersey Safety Awareness Test on 10 August 2019 and began to work on site as one of the labourers supplied at CNR's request made to the Employer for labourers and carpenters who could undertake work on site additional to and outside the scope of the sub-sub-contract dated 16 July 2019.
21. In his witness statement, the Plaintiff describes being "loaned out" to CNR to work on Ann Court. A few days before he began working at the site, Roger de Sousa, who the Plaintiff describes as his "boss", told him that CNR wanted to "hire steel fixers and carpenters" and that he had to "obey everything CNR told me to do". The Plaintiff was being paid £12 per hour at the time and, although the Plaintiff did not know this, Mr de Sousa was receiving £17 per hour from CNR - so making a profit of £5 per hour.
22. When he arrived on site, the Plaintiff said that Manuel da Silva, his Employer's supervisor, helped him fill out the paperwork. The Plaintiff was given a site induction, a short health and safety briefing lasting thirty-five minutes and the access codes to the site.
23. Most of the work the Plaintiff did whilst being loaned to CNR was constructing mouldings which would then be filled with concrete. He trained on the job. The person who gave him instructions was Mr Kezic of CNR and the Plaintiff said that he "regarded him as my boss for work at Site". However, Mr Kezic was not the only one who the Plaintiff regarded as working in a supervisory role vis a vis him. Manuel da Silva, who also worked for the Employer, worked as a steel fixer on site but also, the Plaintiff said, "acted as a supervisor and was head of the RS team on site. He was responsible for the work being done by RS employees". When Mr da Silva was absent, Ruben de Sousa would supervise the work of the Employer's employees.
24. The Plaintiff had difficulty communicating with Mr Kezic because he spoke French. The Plaintiff did not speak French. If he needed clarification about something Mr Kezic told him to do, he would ask Manuel da Silva. Sometimes when there was no work on site, the Plaintiff would do work for the Employer elsewhere. The Plaintiff said that Roger de Sousa "was the boss and the one who gives me the orders".
25. After about a year of the Plaintiff working on site, which would have been late 2020, he says that "platforms began to be erected in order that work could be carried out at height". The Plaintiff understood that CNR was responsible for the design and installation of these platforms. The Plaintiff said in his witness statement, which was dated October 2024, that when he began to work on platforms in late 2020, he became concerned about the safety of some of the platforms, in particular the large gaps between platforms and the absence of rails on platforms. He said "I would also have to install iron bars on platforms so that they could act like a balcony". He said "I sometimes refused to perform this work because I thought it was too dangerous, but Clement would tell me to do it".
26. The Plaintiff said that he raised his concerns in this regard with Roger de Sousa, including the concerns about wooden boards and the occasional lack of handrails. In evidence he said he actually took Roger up onto a high platform and showed it to him, but he said that Roger de Sousa was not concerned about these matters and simply told him to get on with his job. The Plaintiff said that he thought he last raised these matters about a month before the accident.
27. The account that the Plaintiff gave in this regard was heavily contested. Both Roger de Sousa and Ruben de Sousa denied that the Plaintiff had ever mentioned such matters. It was only shortly before the trial that the Plaintiff's statement of claim was amended to make these allegations and the Employer's skeleton argument said that this "belated allegation" was "vehemently denied" by the Employer.
28. In evidence, the Plaintiff said that he had also communicated his concerns with Clement Leblanc and used his mobile telephone to translate what he wanted to say from Portuguese into French. He expanded slightly on his witness statement in relation to the matters he said he complained of. He said "The platforms were not together" and sometimes wood would need to be put on the platforms so that no one would fall. He said that there was a danger. He also referred to the absence of the bars on occasion. He said that he had mentioned this to Clement Leblanc, to Pedro de Sousa and many times he had refused to do the work because of his concerns but he was told to carry on by Michael Rolland and Clement Leblanc. He said that Mr Kezic was not there during these conversations. He said that the boards that were laid after he complained covered the gaps and the iron bars closed the gaps on the platforms, but it still meant that he did not feel safe. The Plaintiff said he raised these concerns with Roger de Sousa a few times but could not remember when. He said that he "feared" the gaps. Sometimes Roger de Sousa would climb up with him and the Plaintiff used to show Roger what he was worried about. The Plaintiff said to his Employer that he did not feel safe. The Plaintiff said that Roger de Sousa told him to do what he was told to do.
29. When the Plaintiff was cross-examined on behalf of his Employer, it was suggested to him that he should have continued making these complaints to Roger de Sousa when Roger de Sousa visited him in hospital after the accident. When the Plaintiff was cross-examined on behalf of CNR, he went into further detail about the gaps, the boards that were placed across the gaps and his concern that there might be an accident. In relation to handrails, he said "There were no handrails inside the platforms. Sometimes somebody could fall and it was dangerous". He said "I spoke to Roger multiple times because they were dangerous".
30. As indicated above, Roger de Sousa flatly denied that any such complaints were made to him. He said that no one raised any concerns with him in relation to the safety of the platforms. Similar evidence was given by his cousin, Ruben de Sousa, who worked on site as an occasional team leader when Manuel da Silva was unavailable. Ruben de Sousa frequently met the Employer's staff on site and was able to address any issues they had and, he said, to check that everyone was wearing the correct protective equipment. However, he said that he was principally there for the steel fixers and the loaned workers "did not come to see me because they were under the responsibility of CNR". Ruben de Sousa said that he warned the steel fixing staff not to go on platforms until someone from CNR / Camerons had said they were safe. He said that he did this because he cared about their security. However, he said that he did not give the same warning to the loaned workers as they were "under CNR".
31. Stephen Gueguen of CNR was CNR's main point of contact with Roger de Sousa. He said that Roger de Sousa did not raise any concerns about the safety of the platforms with him. Had he done so, then they would have identified a solution.
32. Until Mr Kezic, the last witness in the case, gave evidence there was no evidence corroborating the Plaintiff's complaints prior to the accident. However, Mr Kezic, when asked about the matter, essentially confirmed the Plaintiff's account. He said that there had been a mention of gaps in the boards on the platforms on two or three occasions. This had been at meetings on site. He told his team leaders to block the gaps which he described as "good company policy". He said he gave this advice in order to avoid accidents. He said the gaps were small - only three to four centimetres - which was less than the Plaintiff appeared to describe. He also said that the missing handrails were raised too. These were handrails that were missing from the platforms when they had been installed; that is to say, at height. Mr Kezic said that he told his foremen, Mr Leblanc and Mr Rolland, to put handrails on. He did not check that they had - he trusted that they had done so. As far as he was concerned, the complaints about the gaps in the platforms and the handrails were not made direct to him (which was the evidence the Plaintiff also gave) but were made to Michel and Clement and other members of his team, and then relayed to him to consider.
33. In these circumstances, we unequivocally accept the Plaintiff's evidence that he had made complaints both to his Employer and to CNR about the safety of the platforms and the absence of guardrails in the months preceding the accident and that he was, and entitled to be, concerned that the matters he complained about were dangerous. Whilst his complaints appeared to have been taken seriously by CNR they were ignored by his own Employer. This finding is relevant to the next matter that we consider having regard to the evidence as a whole, namely the Employer's general approach to the health and safety of its workers on site prior to the time of the accident.
34. We have set out Roger de Sousa's obligations under the Employer's health and safety policy above. In his evidence, Mr de Sousa said that each employee of the Employer was required to take a Jersey Safety Awareness Test and further training of a general nature. Mr de Sousa said that he never had any concerns about the Plaintiff's competence, his ability to work safely, or to carry out his work competently and professionally. We accept those observations, and no one made any criticisms of the Plaintiff's work or his attitude to work. Mr de Sousa accepts that routine inspections of the Ann Court site were carried out on the instruction of Camerons, the main contractor, and that he would receive a copy of the outcome by email. Mr de Sousa accepted that he was, notwithstanding the lending of the Plaintiff to CNR, always the Plaintiff's employer and had a duty to ensure his health and safety. He claimed the employees would be expected to come to him with health and safety issues. He accepted that when the Plaintiff was loaned as a labourer to carry out work on the site for CNR, he remained jointly responsible for the Plaintiff's safety with CNR. Mr de Sousa accepted that he made a profit on loaning the Plaintiff to CNR. He said this was "quite normal". He said there were meetings on site every morning, and either he, Manuel or Ruben would attend them. He accepted that the sub-sub-contract contained provisions in relation to the health and safety of the Employer's workers carrying out steel fixing under that contract, but the informal agreement entered in relation to loaned workers did not. He said he was never given any information by CNR about the training that was given or to be given to the loaned workers. He accepted he knew that his workers were working on the platforms, and that CNR had said they could work at heights. When he was asked why he did not carry out any risk assessments in relation to what the loaned workers were doing, he said that when he loaned his workers to another company, it was for the other company to carry out a risk assessment.
35. Roger de Sousa thought there were only two people from CNR qualified to assemble the platforms. This is something to which we will return. He accepted his health and safety policy provided that no work was to be carried out above two metres in height but that his employees, when working on site, were required to work at greater heights.
36. Mr de Sousa said that health and safety was very important to him. But the other evidence undermined and contradicted this assertion. Mr Gueguen of CNR gave evidence in relation to this issue. He came on site after the informal agreement which led to the Employer lending labourers to CNR was made, and accepted that it would have been better had that arrangement been properly documented, when he gave evidence. Mr Gueguen said that Mr de Sousa came to the site about once a week, although CNR "would have liked him to have had more of a presence". He explained this was because they wanted Mr de Sousa "to manage his team and be with his team". Mr Gueguen said that if CNR had announcements or comments to pass to any employees of the Employer, including the labourers who were lent to CNR, they communicated via Roger de Sousa or, in his absence, Manuel da Silva. Mr Gueguen said that he had the impression that Mr de Sousa was "not particularly concerned about health and safety on the site" and that he "rarely practicably discussed health and safety" with Mr Gueguen. We saw the correspondence between Mr Gueguen and Mr de Sousa in relation to health and safety issues. It was all one way, with Mr Gueguen frequently expressing concerns in relation to the practice of Mr de Sousa and his employees. Mr Gueguen said that in his experience this level of complaints about health and safety directed to a sub-contractor was higher than he would usually expect. We give some examples:
(i) On 21 November 2019, Mr Gueguen wrote to Mr de Sousa in respect of protective equipment that Mr de Sousa's staff needed but did not have, offering to provide Mr de Sousa's workers with this equipment and bill them for it. Mr Gueguen explained that the Employer's workers were missing helmets, glasses, gloves and earplugs.
(ii) During Covid, when the CNR staff were unable to come to Jersey (this was in June and July 2020) and the Employer's workers were working on site, Camerons issued a safety non-compliance notice in relation to one of the Employer's workers who was seen standing on a piece of wood bridging a gap between two concrete walls with no handrail protection at three metres in height. CNR wrote to Roger de Sousa on 16 June 2020 about this matter and on the same day Mr Gueguen wrote to Mr de Sousa saying "I hope it won't happen again, otherwise we'll have to stop you from working on the site until we're back on Jersey". Mr Gueguen said that it was rare for him to make such a threat to a sub-contractor.
(iii) At the end of July 2020, Mr Gueguen had to inform Mr de Sousa about other concerns. On 30 July 2020, he wrote asking Mr de Sousa to tell his steel fixers to wear safety goggles when cutting steel, as well as earplugs. This was obviously a dangerous and unsafe system of work and Mr Gueguen informed Mr de Sousa not only should he do a toolbox talk (i.e. training session to his employees on site) next Monday, but that Mr Gueguen would be present at the talk.
These were just a few examples of health and safety failures which all occurred prior to the accident.
37. Of equal concern to the incidents themselves was Mr de Sousa's attitude to these complaints when he was confronted by them in evidence. His cousin, Ruben, who gave evidence after Roger de Sousa (and did not hear his evidence as he was, in the usual way, excluded from the Court) accepted that these health and safety worries had been brought to the attention of the Employer by Camerons and / or CNR, including that the employees of the Employer were cutting steel without safety gloves or earplugs. He said Roger knew about the complaints and that he, Ruben, had spoken to the workers about them. He also accepted that in 2020, the Employer's steel fixers had been given a warning at the request of CNR and Camerons that they should not remove handrails from the platforms before they were checked. He said that he warned his staff not to go on the platforms until someone from CNR / Camerons had said they were safe. He also accepted that there were not many of the Employer's staff on site at any one time, usually only between five and six including the loaned workers, and that it would not have taken long to find out what each of them were doing.
38. Roger de Sousa did accept that the incident with a member of his staff standing on a plank between two concrete sections at three metres in height had happened, that it was dangerous, and that he needed to speak to his men about it. However, when the correspondence from August 2020 about one of his workers using a petrol grinder without protective glasses and hearing protection was put to him (the correspondence was from Mr Gueguen and had followed a meeting with Camerons), he denied that this had occurred and said that Camerons were wrong about this.
39. As to the correspondence on 30 July 2020 from Mr Gueguen to Mr de Sousa in relation to his staff not wearing safety goggles when cutting steel (something which had been specifically accepted by Ruben de Sousa), Mr de Sousa refused to accept that this had happened. When he was asked if Mr Gueguen was telling the truth when he said that Mr de Sousa's staff had not been wearing safety goggles when cutting steels, he replied "Maybe yes and maybe no". We have no hesitation in rejecting Roger de Sousa's account in relation to these matters which were inconsistent with the documentation, the evidence of his own foreman, Ruben de Sousa, and the evidence of Mr Gueguen. We accepted Mr Gueguen's evidence in relation to these matters. We found overall Roger de Sousa to be an unimpressive witness who paid scant regard to the health and safety of his employees. We accepted the evidence of Mr Gueguen that this was not a matter that interested Mr de Sousa, nor a matter that he brought up. These findings are consistent with the evidence to which we have already referred given by the Plaintiff, that his complaints about the very platforms which were to lead to the Plaintiff's severe injury were ignored by Roger de Sousa.
40. The evidence of Mr Milnes, the expert who gave evidence on behalf of CNR, was:
(i) An employer should understand the roles being carried out by their staff when they are lent to another company;
(ii) It was important for there to be a free flow of information between employer and employee on health and safety matters;
(iii) Employees would be less likely to come forward about concerns they had about their health and safety if they thought their complaints were unlikely to be taken seriously or ignored; and
(iv) That Mr de Sousa could or should have escalated the concerns that he had received from the Plaintiff in respect of the platforms to Mr Gueguen and if he felt that those concerns were being ignored, then he would have been entitled to withdraw his workers from the site.
41. We accepted this evidence and will return to the failings of Mr de Sousa and their relevance to the subsequent accident below.
42. The events leading up to the accident and the relevant procedures of the Defendant were set out by the Royal Court when CNR was fined £100,000. The Court, giving its reserved reasons for imposing the penalty on 28 January 2022, said, in a judgment dated 25 February 2022 (AG v CNR Construction [2022] JRC 050) the following, which was accepted by all parties as accurate:
"2. In the course of early 2021, the Defendant was working as part of a team of contractors on the building of 165 flats at Ann Court, Providence Street, St Helier. The Defendant is a French company, and its head office is in France. The Defendant was sub-contracted to undertake design, supply and installation of the concrete works.
3. In particular, the Defendant was required to install working platforms designed to access areas of the site including areas where workers were required to work at significant heights.
4. The need for such working platforms (which are metal structures) was identified by the design drawings for the site. A technical drawing for each platform was produced prior to construction and fastenings and holes for brackets on particular parts of the concrete structure were in place when the concrete was poured to form the external walls into which the working platforms would in due course be slotted.
5. Each working platform was identified by reference to its design and given an identification label. The platforms and the relevant fixings were designed in France but assembled on site in Jersey.
6. The platforms were craned into position and secured by the platform being placed on brackets which were set in the concrete, further secured by an anti-tilt bar in order to prevent the platform failing or tilting to the extent that any person working on the platform would fall.
7. The working platforms were designed in accordance with a "method plan" which are the responsibility of the "method department". The Defendant's Method Department consisted of four people based in France. It was the task of the members of the method department to contact the manufacturers of the working platforms (a company called Sateco) should any questions about the construction or design arise. The platforms were required to be assembled on site by the Defendant's Equipment Team.
8. In the course of mitigation Advocate Hall said that in France two members of the Equipment team would always check the platforms had been assembled correctly. In breach of the Defendant's own internal systems, there was only one member present in Jersey and, prior to the incident, that sole member of the Equipment Team was allowed by the Site Manager to leave Jersey permanently for France. This meant that those employees with responsibility for assembling the working platforms were no longer present on site on 2nd February 2021. This was the first of many failings by the Defendant.
9. On 2nd February 2021, employees of the Defendant decided that a platform which had been designed to construct external walls on the fourth floor of the building was too short. It was decided to change the platform to a longer platform. The Defendant's site foreman, Clement Leblancq, installed two props beneath the platform to support the platform which was to be placed above. He placed the props in holes that were designed for a platform of 3.4 metres. The new platform was placed on the fixing points dedicated for the initial platform and props were put underneath to support the cantilever by using the slab of the underneath balcony. In fact, the longer platform to be installed extended to 5.85 metres - 65-70% greater than the original design, which resulted in one end of the platform being in effect unsupported by the existing pre-formed fixing points in place for the original, shorter, platform. This was the second significant failing on the part of the Defendant. Further, the anti-tilt bar was not checked to see if it had properly locked in place under the two props/brackets.
10. Neither Mr Leblancq the site foreman, or Mr Zelijko Kazic the site manager for the Defendant contacted the method department or the Equipment Team about the change of design. Mr Kazic claimed that this was because he did not have time to do so as the project was running late. This was the third significant failing on the part of the Defendant. In interview Mr Kazic accepted that he should not have altered the length of the platform without reference to the need for a new design from the Method Department.
11. Advocate Hall, in the course of submissions on behalf of the Defendant, said that there were procedures in place to prevent the incident that was caused by these failings but they were firstly not complied with and, secondly, had not been reduced into writing. These were the fourth and fifth significant failings.
12. Advocate Hall said that if properly installed the anti-tilt bar may have helped steady the platform but may not have prevented the collapse that occurred.
13. After the accident Camerons, the principal contractor, carried out an examination of the other working platforms that the Defendant had installed at the site. Of 34, seven had platform errors that needed to be addressed as they were either not installed within the method plan or were in some other way defective. The method plan permitted a tolerance of 20 to 30 centimetres in the size of the platform. We regarded this as a sixth and significant overall failure as evidence of systemic shortcomings on the part of the Defendant, although this specific failure was not directly causative of the incident.
14. It was said on behalf of the Defendant that the absence of the project manager from the site did not denote a lack of supervision because the site manager, Mr Kazic was present. We found this difficult to accept in view of the general shortcomings and the specific failings which led to this incident.
15. At 1.30pm on 2nd February 2021, the platform failed whilst Mr Filipe De Abreu, an employee of another sub-contractor, was undertaking his work. Mr De Abreu fell 12 metres to the road below. Fortunately, he was the only person on or below the platform when it failed. He suffered multiple life changing injuries which will affect him permanently.
16. We have set out the particular failures of which the Defendant was guilty and noted that in this case the Equipment Team returned to France before completing the assembly of the working platforms, agreeing that the untrained site manager could carry out their work instead. This meant that the site-based team was left without either adequate supervision or direct monitoring of their work. Indeed, it seemed from what we were told by defence counsel in mitigation that those ultimately responsible in the Defendant company for this work were not even aware that the Equipment Team had returned to France, leaving the untrained site manager responsible for this complex, difficult and potentially dangerous project."
43. Though it may not add a great deal to the Royal Court's sentencing judgment, paragraphs 7, 8 and 21 of the statement made by the Chief Executive Officer of CNR, Mr Gaudin, for the purpose of the health and safety inspectorate investigation which were put to both witnesses who gave evidence on behalf of CNR and accepted by them to be accurate. They are included in the following extract from his statement:
"(a) The procedure in place for the installation of the type of platform from which Mr Abreu fell.
6. The platforms are rented by the Company from SATECO.
7. When platforms of this type are used on any site, there is a requirement for a method plan to be drawn and provided to the site manager and foreman. These drawings will detail where the platforms are to be placed. These method drawings are the responsibility of the method department (the "method department") who are in regular contact with SATECO in relation to the use of the platforms. The method department consists a team of 4 people. Importantly, a member of the method department will communicate with SATECO should there be any questions about platform issues. There are also manuals and computer software issued by SATECO, which are referred to and used by the method department and should there be any questions, concerns or queries in relation to the drawings and the platforms, the method department will email their drawings to SATECO for approval.
8. All site managers and foremen of the Company are required to follow the drawings and they are aware that any changes to the drawings must be referred back to the method department. The drawings are evolving documents that change according to discussions between the relevant site team and the method department. Whilst this requirement is not recorded in writing, all site managers and foreman are competent and experienced builders and digressing from a method drawing without reference to the method department is akin to digressing from an architect's drawing without first speaking to the architect. Health and safety is very important to the Company and our site managers are required to acknowledge their responsibilities in this regard by signing the attached delegation of powers which they sign after receiving legal advice.
....
14. The established practice for building the platform is for the equipment department to build the platform at head office but due to the logistics of sending pre-assembled platforms on the ferry from France to Jersey, they were prepared on Site. Despite this change in practice, the completion of the preparation should have been carried out by the equipment team and not the site manager or any other employee of the Company.
...
20. Instead of going back to the method department, they decided to increase the size of platform without reference to them. As a result they had no updated drawing which instructed them where the anchoring fasteners (which are located underneath the platform) should be placed. This is a failure of Mr Kezic and Mr Clement to follow the Company's procedures and as far as I am concerned was completely out of character for them both. We have now established that there were other departures from the method drawing by Mr Kezic and Mr Clement on this Site.
21. In addition to the above, and as stated in paragraph 14 above, the platforms are usually constructed by the equipment team. On this occasion the platform was not completed by the equipment team because Mr Kezic had decided that the relevant member of the equipment team could return to France. This was against Company policy which Mr Kezic would have known. If a member of the equipment team had finished the platform, the team member would have known never to place the anchoring fastener at the edge of the platform."
44. In evidence, Mr Kezic frankly accepted his personal responsibility for the accident. Mr Kezic, who we regarded to be commendably honest in relation to this and indeed generally, both took responsibility for the accident and said that he knew that they should not have been doing what they were doing in the way that they were doing it.
45. It was clear that the decisions that led directly to the accident were taken by the staff of CNR as set out above. The Employer played no part in those decisions.
46. However, the two witnesses who gave evidence on behalf of the Employer, Roger de Sousa and Ruben de Sousa, made an attempt during the trial to distance themselves from their knowledge of the work that was being done by the Employer's own staff in respect to the platforms, including on the day of the accident.
47. In paragraph 11 of Roger de Sousa's statement, he said that the platforms used by CNR were entirely their remit and there was no responsibility or ability for the Employer to become involved with them. At paragraph 18, he said it was understood between the Employer and CNR that CNR would be "exclusively responsible for the construction and maintenance" of the platforms. At paragraph 63, he said that there was "nobody" within the employ of the Employer who would be sufficiently qualified or experienced to carry out any, inter alia, construction of the platforms. In evidence, Mr Roger de Sousa said that he knew CNR's Method department designed the platforms in France and that there were CNR staff who were trained to assemble the platforms. In fact, on the day of the accident, one of the labourers - Pedro Sousa - lent by the Employer to CNR was actually involved in the installation of the very platform that subsequently collapsed and caused the Plaintiff injury. In evidence, Roger de Sousa said he had not known this and Pedro was not competent to do this. He said that he was never told that Pedro Sousa was doing this type of work and that he had no training to do it. He accepted there was nothing in the agreement he had with CNR which prevented Pedro from carrying out such work.
48. Pedro Sousa did not give evidence, but he did make a statement to the health and safety inspectorate. In that statement, he said that his principal job was to do formwork for floors and walls with Mr Kezic being the "main boss for the project". On the day of the accident, it was he and three others, including Mr Rolland and Clement Leblanc, who "installed the platform". He said "There was already a small platform there and we had to change it for a larger one so we could carry out work on the corner [of the building]". He could recall it was work to the fourth floor. Mr Rolland and Mr Leblanc had made a decision to change the platform. Pedro Sousa described the process of changing the platform and the use of a crane to connect the platform to certain hooks. He said he had "installed platforms previously" but only rarely. The reason why he was doing it was because some of the French staff had returned to France. He also noted that two acro props had been used to support the platform. He said "They were fixed to the balcony below, but there was no support beneath the platform overhang". Immediately prior to the accident, Pedro Sousa was coming and going off the platform and, as he stepped off the platform, the platform collapsed. We will consider the relevance of Pedro Sousa's evidence and his role in the installation of the platform and what he saw and what he did below.
49. Mr de Sousa, perhaps oddly having regard to the rest of his evidence, claimed that he used to ask CNR if the platforms were safe, and he was told that they were. He claimed to have read CNR's risk assessments on site. He said they were on a table for the workers to look at. This was not challenged but was evidence that he gave before we learnt through Mr Gueguen that the risk assessments were all in French, a language which Roger de Sousa did not claim to speak - he said he was fluent in English and Portuguese only.
50. Ruben de Sousa also attempted to distance himself from knowledge of the platforms. He said that even though he was the Employer's foreman on site, the loaned workers did not come to see them because they were the responsibility of CNR. He accepted that the loaned workers only spoke Portuguese and that CNR workers only spoke French or English so therefore the loaned workers would need to speak to Manuel da Silva to explain things. Ruben de Sousa said in his statement:
"At no point during the time that the [Employer] was working on the Ann Court site did anyone in the employ of the [Employer] have any role in constructing and / or checking the platforms that were in use.... Nobody in the employ of the [Employer] was ever asked to become involved with this, nor could we have been, as the specialist nature of the platform construction....was known and understood by all concerned to be far outside of the knowledge, expertise and experience of the [Employer's] staff."
There was no mention of the role of Pedro Sousa which runs contrary to this evidence.
51. Ruben de Sousa said this in the paragraph in his statement which dealt with the day of the accident:
"It was not, in my experience, unusual for platforms to be adapted during the course of the project, in order to accommodate the needs at any given time."
When this passage was put to him, he simply denied that it was his evidence and must have been "some translation mistake". He was asked what the mistake was and what he had meant to say. He said the mistake was in failing to say "I had nothing to do with the platforms". Of course, this was nothing like what he said in his statement. This was not, in our view, an error in his statement. It was Mr Ruben de Sousa dishonestly trying to separate himself from the account that he had given, so as to distance himself from any knowledge of the circumstances relevant to the events of the accident or knowledge of the work that occurred in relation to the platforms on site. It was an ad hoc adaption to the platform length that led directly to the accident. Indeed, Ruben de Sousa then went on to say that he did not know that changes to the platform length had to be approved by CNR in France until Advocate Thomas had asked him a question about it in Court. Subsequently he claimed that he did not know about the causes of the accident until he was cross-examined in Court. Bearing in mind that he was a supervisor employed by the Employer, that one of his colleagues had been critically injured on the site where he was working, that everyone on that site would have been talking about the accident and its causes, that there was an investigation leading to a prosecution and publication of the reasons for the accident, we found his account that he did not understand the cause of the accident until the trial to be incredible. We rejected it.
52. Ruben de Sousa said there was a senior member of the Employer's staff on site on the day of the accident, and in total there were five or six employees of the Employer on site on that day, including the loaned workers. His account in evidence that he had not known until the day he gave evidence that Pedro Sousa had helped to install the platform which collapsed on the day of the accident we also reject as being not credible and dishonest. Nonetheless, he did accept that he knew from Pedro Sousa that some of the CNR staff had gone back to France. He also accepted when he was cross-examined that key CNR staff being away in France was a safety issue, about which he should have told Roger de Sousa.
53. Having described the background to and circumstances of the accident, we now turn to the relevant legal principles.
54. There was some dispute as to the legal principles that we needed to apply to the facts in this case. Accordingly, we set out our understanding of those principles and, where relevant, the disputes between the parties in relation to the application of those principles and our conclusions having regard to those disputes.
55. The Employer owed a customary law duty of care and a statutory duty to the Plaintiff.
56. As to the customary law of duty of care, that corresponds to the English common law duty of care owed by an employer to an employee.
57. The duty owed to employees is peculiar to the employer / employee relationship (see Clerk and Lindsell at 12-06) and non-delegable. The customary law duties of an employer were succinctly stated by Commissioner Sir Michael Birt in Conceicao v Silva Cleaning Services Limited [2020] JRC 226 at paragraph 16, where he said that they were similar to those imposed under Article 3 of the Health and Safety at Work (Jersey) Law 1989 ("the 1989 Law") and included "a duty to provide safe equipment, a safe system of work and to provide adequate training and supervision in connection with such a system of work".
58. The Article 3 duty is in the following terms:
"3 General duties of employers to their employees
(1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all the employer's employees.
(2) Without prejudice to the generality of an employer's duty under paragraph (1), the matters to which that duty extends include in particular -
(aa) the identification and assessment of risks to health and safety to which the employer's employees are exposed at work;
(a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;
(b) arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of the employer's employees;
(d) so far as is reasonably practicable as regards any place of work under the employer's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of access to and egress from it that are safe and without such risks;
(e) the provision and maintenance of a working environment for the employer's employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.
(3) It shall be the duty of every employer employing 5 or more employees -
(a) to prepare and, as often as may be appropriate, revise a written statement of-
(i) the employer's general policy with respect to the health and safety of the employer's employees,
(ii) the organization of responsibilities with respect to that policy,
(iii) the arrangements in force and measures taken by the employer to implement that policy;
(b) without prejudice to the generality of sub-paragraph (a)(iii), to prepare and, as often as may be appropriate, revise a written statement of - (1) the significant risks identified by the employer under paragraph (2)(aa) and the employer's assessment of them, (ii) any arrangements in force and any measures taken by the employer to eliminate or reduce the significant risks to health and safety identified; and
(c) to bring the statements and any revisions of them to the notice of the employer's employees.
(4) The statements required by paragraph (3) and any revisions of them shall be prepared in a language, or if necessary in more than one language, in which they will be understood by each of the employer's employees.
(5) The Minister may, by Order, amend the number of employees mentioned in paragraph (3)."
59. Article 26 of the 1989 Law provides that the Article 3 duties do not confer a right of action per se in civil proceedings, but they do inform the nature of the customary law duty of care.
60. It was accepted by all parties that the Employer owed such duties to the Plaintiff.
61. One matter which was contested was whether or not the Employer was a "contractor" vis a vis the Plaintiff as provided under the Health and Safety (Management in Construction) (Jersey) Regulations 2016 ("the 2016 Regulations"). Pursuant to the first regulation of the 2016 Regulations, a "contractor" is defined as "any person who, in the course of furtherance of a business, carries out, manages or controls construction work". If a party is a "contractor" for the purpose of the 2016 Regulations, then they owe the duties under Article 13 as follows:
"13 Contractor's duties
(1) Every contractor engaged in a construction project must -
(a) ensure that the client is aware of his or her duties under Regulation 7;
(b) plan, manage and monitor his or her own work and that of workers engaged in the project;
(c) in the case of high risk construction work, prepare safe work method statements in accordance with Regulation 19;
(d) take all reasonable steps to ensure that all contractors engaged by him or her on the project and persons engaged to undertake construction work are competent to do the work for which they are engaged;
(e) provide supervision and training to their employees where it is necessary to ensure, so far as is reasonably practicable, that the work is done competently and safely and that Regulation 20 is complied with; and
(f) ensure that arrangements for assessing and controlling the risk of health hazards and the provision of amenities for welfare that comply with the requirements of Regulation 34 are provided to his or her employees."
62. It was not disputed that for the purpose of the Plaintiff's work CNR were a "contractor", but it was argued that the Employer was also a "contractor" in relation to the Plaintiff's work. It was not in dispute that the Employer was a contractor for the purpose of those of its employees engaged on steel fixing pursuant to the sub-sub-contract referred to above. But what of the labourers who were lent by the Employer to CNR?
63. This is a matter upon which there were varying views and indeed the experts called by the First and Second Defendants respectively expressed different views in relation to this matter, although ultimately that was perhaps more a matter for the Court than for experts to opine upon.
64. In any event, although we accepted that the Employer must have been a "contractor" as defined in the 2016 Regulations for the periods when CNR were simply not on site - for example, during June and July 2020 when they were unable to come to Jersey owing to the Covid restrictions that were in force - we had to determine whether they could properly be described as a "contractor". Although not binding, we found the Guidance Notes on the 2016 Regulations published by the Jersey Health and Safety Inspectorate to be helpful in this regard, and we note that the section dealing with "key definitions" within the Regulations described provides that a contractor "is someone who directly carries out, manages or controls construction work".
65. It is possible for there to be two "contractors" at the same time in relation to the same work. This appears to be the effect of Regulation 16 of the 2016 Regulations which provides, inter alia, that if more than one person has responsibility for a matter under these Regulations, then "each of the persons must fulfil his or her responsibility or meet the requirements to the extent that he or she controls the construction project or the construction work". We felt that on the evidence that we received, notwithstanding the presence of a supervisor / foreman employed by the Employer on site each day, CNR was in fact carrying out, managing and controlling the construction work performed by the Plaintiff. The arguments to the contrary put forward by CNR were to the effect that the Employer remained the employer of the Plaintiff, was responsible for his pay, holiday, provision of protective equipment, training and, to a significant extent, health and safety. Where the Employer did not carry out or manage this particular construction work, we felt on balance that he did, with CNR, control it. The Employer was entitled to withdraw his workers and in those circumstances the construction work would cease. Accordingly, the Employer owed the Plaintiff duties under Regulation 13 of the 2016 Regulations. Such duties were principally owed by CNR to the Plaintiff, having regard to the provisions of Regulation 16(b). It was CNR that was planning, managing and monitoring the work that the Plaintiff was doing on the day of the accident. The Employer's duties particularly under Article 13(1)(c) and (e) and (f) were engaged particularly as the Employer knew or ought to have known that the Plaintiff and the other lent workers were working at height on platforms which they knew would be dangerous if not properly installed. Nonetheless, in case our finding that the Employer subject to a Regulation 13 duty is reconsidered by a higher court, we made it clear this conclusion adds nothing to our conclusions in relation to apportionment which are founded, inter alia, on the Employer's breach of the customary law of duty of care owed to the Plaintiff.
66. None of the discussion above derogates from the fact that the Employer owed the Plaintiff statutory duties under Article 3 of the 1989 Law and the customary law duty of care. We have referred above to this being a non-delegable duty and we now, in the context of this case, consider precisely what that meant. Again, this was subject of some dispute between the parties.
67. The non-delegable nature of this duty of care was established by the House of Lords in Wilsons and Clyde Coal Company Limited v English [1938] AC 57. In Wilsons, the House of Lords held that an agent in performing an owner's duty of providing a safe system of work in a mine is not engaged in employing that workman - he is performing the duty of the owner.
68. Lord Thankerton said at page 64:
"The appellants maintain that the present case is covered by the second proposition, in that they have delegated to a competent agent and manager the duty of providing a reasonably safe system of working, and that any negligence in the provision of such a system is the negligence of these delegates, and, under the doctrine of common employment, that the appellants are not liable therefor.
It seems to me that the fallacy in the appellant's argument lies in the view that the master, being under a duty to take due care in the provision of a reasonably safe system of working, is absolved from that duty by the appointment of a competent person to perform the duty. In my opinion the master cannot " delegate " his duty in this sense, though he may appoint some one, as his agent in the discharge of the duty, for whom he will remain responsible under the maxim respondeat superior."
69. In the same case at page 88, Lord Maugham said this about delegation and the duty:
"He [the employer] can, and often he must, perform this duty by the employment of an agent who acts on his behalf ; but he then remains liable to the employees unless the agent has himself used due care and skill in carrying out the employers' duty. This has sometimes been expressed by saying that the duty is personal to the employer ; but the adjective if unexplained is apt to mislead, like the word "absolute " and the word "delegate." The employer can, of course, and frequently must delegate the performance of any of his duties to skilled agents ; but it would need an altogether new implied term in the contract between employer and employee before a Court could properly hold that this delegation has the result of freeing the employer from his liability."
70. The principle applies today, and was considered more recently by the House of Lords in McDermid v Nash Dredging and Reclamation [1987] ICR 917. Lord Hailsham, explaining the concept of a non-delegable duty, said the following at page 922B:
"this purpose by the Court of Appeal. The plaintiff's claim in the proceedings was based on the allegation, inter alia, of a "non-delegable" duty resting on his employers to take reasonable care to provide a "safe system of work:" cf. Wilsons & Clyde Coal Co. Ltd v. English [1938] AC 57. The defendants did not, and could not, dispute the existence of such a duty of care, nor that it was "non-delegable" in the special sense in which the phrase is used in this connection. This special sense does not involve the proposition that the duty cannot be delegated in the sense that it is incapable of being the subject of delegation, but only that the employer cannot escape liability if the duty has been delegated and then not properly performed."
71. Lord Brandon considered the rule and said at page 930F:
"My Lords, the Court of Appeal regarded the case as raising difficult questions of law on which clear authority was not easy to find. With great respect to the elaborate judgment of that court, I think that they have treated the case as more difficult than it really is. A statement of the relevant principle of law can be divided into three parts. First, an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work provided for him is a safe one. Secondly, the provision of a safe system of work has two aspects - (a) the devising of such a system and (b) the operation of it. Thirdly, the duty concerned has been described alternatively as either personal or non-delegable. The meaning of these expressions is not self-evident and needs explaining. The essential characteristic of the duty is that, if it is not performed, it is no defence for the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it. Despite such delegation the employer is liable for the non-performance of the duty."
72. As to the circumstances of the accident, Lord Brandon went on to say:
"In the present case the relevant system of work in relation to the plaintiff was the system for unmooring the tug Ina. In the events which occurred the defendants delegated both the devising and the operating of such system to Captain Sas, who was not their servant. An essential feature of such system, if it was to be a safe one, was that Captain Sas would not work the tug's engines ahead or astern until he knew that the plaintiff had completed his work of unmooring the tug. The system which Captain Sas devised was one under which the plaintiff would let him know that he had completed that work by giving two knocks on the outside of the wheelhouse. I have already said that I agree with the Court of Appeal that there was scope, on the evidence, for a finding that that system was not a safe one. I shall assume, however, in the absence of any contrary finding by Staughton J ., that that system, as devised by Captain Sas, was safe. The crucial point, however, is that, on the occasion of the plaintiff's accident, Captain Sas did not operate that system. He negligently failed to operate it in that he put the tug's engines astern at a time when the plaintiff had not given, and he, Captain Sas, could not therefore have heard, the prescribed signal of two knocks by the plaintiff on the outside of the wheelhouse, For this failure by Captain Sas to operate the system which he had devised, the defendants, as the plaintiff's employers, are personally, not vicariously, liable to him."
73. Subsequently, in Morris v Breaveglen Limited [1993] ICR 766, the English Court of Appeal revisited the principle. At page 774E, Beldam LJ set out the relevant facts of that case as follows:
"It seems to me that the proper analysis of the facts in this case is that the plaintiff, in the course of his employment by the defendants, was required by the defendants to go to the site at Her Majesty's prison at Dartmoor and there to work under the directions of the main contractor, Sleeman. The request to the plaintiff from the defendants to do this no doubt carried with it the requirement that the plaintiff would comply with the reasonable requests of Sleeman's site foreman and would do as the foreman instructed. But, in my view, nothing expressly being said on the point, this did not carry with it any implied release by the plaintiff of the defendants from the defendants' personal duty to take reasonable care to see that in the operations carried out on the site he was not exposed to unnecessary risk of injury.
As is well known, all employers since 1968 are required by law to carry employers' liability insurance in respect of their employees. It certainly cannot be said with any confidence that, had the question been raised, the plaintiff would have given an informed consent to a release of the defendants from their obligations towards him under his contract of employment with them. Thus it seems to me the defendants remained liable under the contract of employment to fulfil their obligation to the plaintiff, In the circumstances of this case they chose to perform that obligation through Sleeman's site foreman, who, in the instructions he gave and the system of work he adopted, was acting both on behalf of his employers, Sleeman, to discharge their duty towards their employees, and on behalf of the defendants, whose employees he was also directing."
74. Employers in Jersey are also required by law to carry Employers' liability insurance in respect of their employees under the Employers' Liability (Compulsory Insurance) (Jersey) Law 1973 and the associated Regulations. Beldam LJ dealt with an argument that the defendants could not have visited the site or had any say in which the work was carried out, with which Beldam LJ disagreed. There are in this, and some of the other cases, discussions of the factual matrix which do seem in particular contexts to muddy the waters of what is otherwise a straightforward principle of liability.
75. When considering the principle, at page 786D Megaw LJ said:
"The essence of this case is that the plaintiff was in contract with the defendants in the relationship of employee and employer, in other words, a contract of service. There is no suggestion, as I understand it, and if there were there would be no basis for it, that the plaintiff had ever agreed that that contract should be terminated, nor has any basis been put forward as a matter of law why the court should hold that it had been terminated. One of the terms of that contract, and a very important term, is the ordinary implied term of a contract of service that the employer will take all reasonable steps in the employment of the employee towards ensuring his safety and providing or ensuring that there is provided a safe system of work.
I can see no basis for the suggestion that the plaintiff ever agreed that that implied term of the contract should be varied. Nor can I see, amongst all the authorities that have been cited to us, anything which would lead to a conclusion that, as a matter of law, the implied term is to be treated as having been removed and the contract thus varied without the plaintiff's consent. The result is, then, that there remains an implied term of the contract that the employer, the defendants, would take all reasonable steps for the plaintiff's safety in carrying out the work which he is required to do by virtue of his employment.
The fact that the plaintiff, to use the perhaps unfortunate phrase which has been used in this case, was "lent" by his employers, the defendants, to another legal person, Sleeman, cannot by itself be a basis for saying that the contract has been varied. It may well be that, whether as a matter of law or as a reasonable implication, the plaintiff has had given to him in addition a right against Sleeman that they will ensure that reasonable steps are taken for the plaintiff's safety so long as he in fact is working under them. But that is far from saying that, because there is such an additional implied term, it involves also the disappearance of the original implied term of the contract."
76. These principles remain good law. Our attention was drawn to the relevant section in Clerk and Lindsell on Tort at 12-14. Clerk and Lindsell notes that in Uren v Corporate Leisure [2011] EWCA Civ 66, the English Court of Appeal concluded that the duty to conduct a risk assessment under the Management of Health and Safety at Work Regulations 1999 was so closely linked to the common law duty of care to take care for the safety of employees that it too must be non-delegable. A similar conclusion has been reached by the Australian Courts, and in Kondis v State Transport Authority [1994] 154 CLR 672, the High Court of Australia held that an employer was in breach of its duty to provide a safe system of work when an independent contractor dropped part of a crane which hit an employee. The contractor's failure to adopt a safe system of work was held to constitute a failure by the employer to satisfy the non-delegable duty to provide a safe system of work.
77. A case that we found useful was the English Court of Appeal decision in Nelhams v Sandells Maintenance Limited and Gillespie (UK) Ltd [1996] PIQR P52. In that case, the plaintiff was employed by the first defendant as a painter. The first defendant was engaged by the second defendant to do decoration work at a shopping precinct. All the equipment used by the first and second defendants was provided by the main contractor. It was agreed that employees of the first defendant would work overtime at the direction and under the supervision of the second defendant. At a time when the main contractor had left the site, the plaintiff was instructed by an employee of the second defendant to do some paintwork from a ladder, the plaintiff pointing out that it would be unsafe to do so without the ladder being footed. He was told there was no one available to foot the ladder. The plaintiff went ahead, climbed the ladder, slipped and fell, and sustained injury.
78. At first instance, the judge dismissed the claim against the first defendant and gave judgment for the plaintiff against the second defendant.
79. The Court of Appeal allowed the appeal, entering judgment against both defendants - the employer and the contractor who was responsible for supervising and directing the plaintiff at the time of the accident. Nonetheless, the Court went on to hold that even though the plaintiff was entitled to recovery against both defendants, in accordance with the provisions of the Civil Liability (Contribution) Act 1978 (which bears some similarity to the equivalent Jersey legislation which we will turn to below), the first defendant would be completely indemnified by the second defendant. The Court said that an employer remains subject to its duty to exercise due care and skill for the safety of its employees, whether or not the employer is instructed to work under the direction of a supervisor employed by another. In such a situation, the supervisor becomes an agent through whom the employer seeks and discharges obligations to his employee, but the employer remains liable if the agent does not use due care and skill in carrying out the employer's duties. In the present case, the first defendant was in breach of its duties of care to the plaintiff, both at common law and under the 2016 Regulations. The second defendant was liable at common law because they owed a duty of care for the plaintiff, although was not liable under the particular regulations as the plaintiff was not employed by them. Having considered as to the question of contribution, the Court, having referred to the Civil Liability (Contribution) Act 1978, which says, inter alia, "In any proceedings for contribution under section 1 above the amount of the contribution recoverable from any person shall be such as may be found by the Court to be just and equitable having regard to the extent of that person's responsibility for the damage in question", appeared to accept the submission that the Court should "look at the matter overall in terms of blameworthiness and causative potency". In view of the finding of the trial judge that the accident was wholly attributable to the second defendant, the judges on appeal held that the second defendant should give a complete indemnity to the first defendant.
80. We found this useful as, irrespective of our conclusions in relation to contribution and / or indemnification, it seemed to us that this was a clear case for the plaintiff to obtain judgment against both defendants.
81. There are cases where, on peculiar and special facts, the principle is held not to apply. Those cases bear no resemblance to the case before us but as we were referred to the relevant authorities, it is proper for us touch upon them.
82. Lee Wai Man v Weh Leung Finance Limited [2004] HK CFI 116 was a decision of Hong Kong High Court. It concerned a fatal accident in which the estate of the deceased claimed damages arising from an accident. The deceased fell from the fifteenth floor on to the sixth floor through a hole in the flooring of a building under construction in Shanghai and died from his injuries the same day. At the time of the accident, the deceased was employed by the defendant as a project manager. The deceased was inspecting the progress of construction. The developer of the project and the main contractor were separate entities. The claim was brought against the defendant as employer in negligence and breach of duty owed to the deceased by his employer. The hole through which the deceased fell was not fenced off and was obviously dangerous. Floorboards covering the hole had been removed. It was submitted that the defendant employer should not be found to be in breach of its non-delegable duty to take reasonable care in light of all the circumstances of the case, including the fact that the building site in Shanghai was thirteen hundred miles from Hong Kong and was occupied by the contractor, its own staff and foreman. The defendant said it was under no duty to decide on the detail of the deceased's work on the site. It was said that the defendant had only provided project management services and only exercised control on the site through the deceased as its representative. Reliance was placed upon the decision in Cook (see below) to the effect that any suggestion that a Hong Kong employer had responsibility for the daily events of a building site in Shanghai some thirteen hundred miles away "owned and managed by reliable companies 'has an air of unreality'". It was said that such a finding would "cast too far high a responsibility on Hong Kong based employers". The facts of Cook were considered in the judgment in Lee Wai Man at paragraphs 88 and 89 as follows:
"88. The facts of Cook's case were that the employee, an electronics engineer started working for U.K. based employers in 1982. He was sent on an assignment to complete the commissioning of a computer control system in Saudi Arabia. His work there was carried out in a control room housing the computers and was largely sedentary. The area had a specially constructed floor, each tile being removable for access to the wires and cables underneath, In March 1982 the employee slipped as a result of a raised floor tile which had been left unguarded.
89. It was on those facts that the Court of Appeal in the U.K. held on appeal that although the employer had a non-delegable duty to take all reasonable care to ensure the safety of the employee, to hold the employers responsible for the daily events on a site in Saudi Arabia owned and managed by reliable companies lacked reality and the circumstances clearly established that the employers had not delegated their responsibility and the accident to the employee had not been caused by any breach of duty on their part."
83. However, the Hong Kong Court felt that the facts of Cook were different from the case before it, and made the following observations:
"90. The facts of Cook's case is very different from the present case. The office in which the employee in Cook's case worked was in the control room. In the normal course of things, there would be nothing to suggest that there should be any hazards with the floor in respect of that office. However, in our present case, the building was a building under construction fraught with the normal kinds of hazards associated with construction works which ought to have been known to the defendant since they were engaged as the project manager for the construction project.
91. There is no evidence of any specific steps taken by the defendant to ensure the reasonable safety of the deceased when he was sent to check on the progress of the works. The defendant ought to have known that the work of the deceased must necessarily involve his inspection of the building under construction.
92. Moreover, there is evidence in this case that the defendant and the developer are both subsidiary companies within the umbrella of the Magnificent Estate group of companies headed by a publicly listed company in Hong Kong. As such, the defendant could have very much more say and control over the safety aspect and procedure adopted at the site.
93. The inference which I can and do draw from all this is that the defendant was content to leave the safety aspect of the building under construction to the main contractor or developer to see to when the deceased was making his inspection of the building under construction.
94. Unfortunately for the defendant, the main contractor and/or its staff woefully failed in this respect for when the covers of the reserve holes were removed, there was not even some form of guard railings put in place to prevent persons from falling into the reserve holes.
95. Therefore since the defendant have seen fit to delegate their non-delegable duty to a third party, they will need to bear the consequences for the failure by that third party and on that basis be liable to the plaintiff for the accident to and the death of the deceased."
84. Accordingly, even on the facts in Lee Wai Man, the employer was found liable.
85. As to the decision in Cook v Square [1992] (ICR) 262 as noted above, the employee was working for employers based in the United Kingdom. He was sent on an assignment to complete the commissioning of a computer control system in Saudi Arabia. There, he was involved in an accident at work, slipping as a result of a raised tile that was left unguarded in a control room housing computers.
86. The judge at first instance found against the employers on the footing that the state of the flooring created a hazard for which the employers were liable, being in breach of their duty of care to provide for the safety of the employee at the place of work.
87. The appeal was allowed. Farquharson LJ noted that the employers were eight thousand miles away from the scene of the accident and the occupiers and main contractors were well-known international companies. It was submitted on behalf of the appellant that it was "absurd to hold that the employers are in breach of [duty] when a sub-contractor effects a purely transitory removal of a floor tile". Certain of the cases referred to in this judgment were drawn to the attention of the Court, including Wilson and McDermid. Giving the principal judgment of the Court of Appeal, Farquharson LJ said at page 271E:
"In my judgment both the judge and Mr. Cobb cast far too high a responsibility on the employers. On the facts of the present case there was no delegation by the employers of their responsibility to either of the second or third defendants or indeed to anybody else. The employers were satisfied-indeed there is no contest -- that the second and third defendants-the site occupiers and the general contractors-were both reliable companies and aware of their responsibility for the safety of workers on site. The suggestion that the home-based employers have any responsibility for the daily events of a site in Saudi Arabia has an air of unreality."
88. It seems to us that this case involves a departure from the general principle and would need to be revisited in a subsequent Jersey case in order for it to be determined whether this decision of the English Court of Appeal ought to be followed by the Royal Court. We prefer the approach of the Hong Kong High Court in Lee Wai Man as presently advised. But this is not a matter which we need to determine in this case.
89. We were also referred to the case of Cassley v GMP Securities Europe LLP [2015] EWHC 722, a decision of the English High Court. This is also a case which, in our view, was not on point. The claimants were the dependents of Mr Cassley. The claim was made against Mr Cassley's employers, GMP, for breach of their duty of care owed to him. The circumstances were that in June 2010, an aircraft crashed into a hillside in a remote area of dense jungle in the north-west corner of the Republic of Congo, as it was then called. All passengers were killed including Mr Cassley. The second defendant was a company which had chartered the plane from a Congolese charter flight company. At the time, Mr Cassley was working for his employer in relation to a mining project. The employer denied liability and said that they were entitled to rely entirely on the second defendant - which made all the arrangements in relation to the trip as a whole, in particular this flight. The second defendant denied the existence of any duty of care and in the alternative denied any breach of such duty. The judge found that this was a low risk, routine flight, notwithstanding various last minute changes in respect of the travel arrangements. The accident occurred as a consequence of pilot error. Reference was made to the decisions in Cook and McDermid. The judge held that the employer owed Mr Cassley a duty to take reasonable steps not to expose him to foreseeable unnecessary risks in the course of travel in the course of his employment (various similar cases involving travel to remote locations were considered at paragraph 208, 209, 210 and 211 of the judgment), and also that this and the general duty of care owed to Mr Cassley were non-delegable and that both had been breached as the employer took no steps at all to satisfy their duty of care to Mr Cassley. They undertook no enquiries of any sort about the proposed trip and no steps of their own to satisfy themselves that the trip was reasonably safe. However, on the facts of the case, the plaintiff's claim failed on causation as had they made the enquiries they ought to have made and discovered what they ought to have discovered, there was no evidence that the employer would have prevented Mr Cassley from getting on the flight in question. The judge said at paragraph 236 "It is the causation gap which I considered to be unbridgeable". We do not think that Cassley was a helpful authority as it was not really a case of delegation of duty, nor was it really a case of an accident at work.
90. Accordingly, we find that the principles set out in McDermid and the other authorities to similar effect referred to above apply to the facts of this case, and that the Employer was at all times subject to the customary law of duty of care which was owed to the Plaintiff, and that the actions of the Second Defendant amounted to a breach of the Employer's non-delegable duty. However, when considering the accident itself, particularly for the purpose of apportioning liability, it is right for us to have regard to the "blameworthiness and causative potency" in the words of Kennedy LJ in Nelhams.
91. A Jersey authority to like effect was the decision of the Royal Court in Louis v E. Troy Ltd [1970] JJ 1371, where Ereaut, Deputy Bailiff, gave the judgment of the Court in relation to an action brought by the plaintiff to recover compensation for injuries sustained by him when he was involved in an accident at the Victoria Pier. At the time, he was a lorry driver employed by the first defendant but was on hire with his lorry to a shipping company, the third defendant. The accident occurred when the plaintiff was trying, with assistance, to move a leaking drum of cooking oil which had been offloaded by means of a forklift truck driven by the second defendant who was employed by the third defendant. The plaintiff slipped on oil which had leaked, resulting in the drum falling on top of him.
92. The action against each defendant was based on negligence, with the allegation against the first and third defendants being that as the general and temporary employers respectively of the plaintiff, they failed to discharge the duties of care owed to him, and against the second defendant that despite the protests of the plaintiff, he loaded onto the plaintiff's lorry a drum of cooking oil which he knew to be leaking.
93. Having set out the background to the matter the Court made the following observations at page 1382:
"It is evident that the causal efficacy of a negligent act may be carried far beyond its immediate consequences. It may set up a dangerous and continuing state of affairs, and an accident arising out of this continuing danger may still be due to the original act of negligence.
In this connexion, there is an important distinction between the operative causes (causa causans) which, either by act or by omission, actually bring about the accident, and the preconditions of an accident, or conditions sine qua non-the whole collection of existing circumstances without which it would not have occurred, or would not have had the same result."
94. Our attention was drawn to the decision of the English Court in Clough v First Choice Holidays [2006] EWCA Civ 15, a decision of the Court of Appeal on appeal from the Queen's Bench Division. The case followed a catastrophic accident involving a young man who broke his neck in a swimming pool complex in Lanzarote. Having viewed the authorities on causation, the Court of Appeal made the following observations:
"43. ...Accidents like this happen all too frequently, and even though negligence by an identified tortfeasor is established, the question still remains whether the negligence caused the claimant's injuries. A successful claim for damages for personal injuries consequent on negligence or breach of duty requires the court to be satisfied that the injuries were indeed consequent on the defendant's negligence. Even if it may have some application in different situations, the distinction sought to be drawn by Mr Burton between material contribution to damage and material contribution to the risk of damage has no application to cases where the claimant's injuries arose from a single incident. In this Court any modification of the principles relating to causation in the context of claims for damages for personal injury must be approached with the greatest caution.
44. The breadth of Mr Burton's submission may have distracted attention from a single but potent consideration. In the context of causation, the two words "but for" are shorthand. They encapsulate a principle understood by lawyers, but applied literally, or as if the two words embody the entire principle, the words can mislead. They may convey the impression that the claimant's claim for damages for personal injuries must fail unless he can prove that the defendant's negligence was the only, or the single, or even, chronologically the last cause of his injuries. The authorities demonstrate that such an impression would be incorrect. The claimant is required to establish a causal link between the negligence of the defendant and his injuries, or, in short, that his injuries were indeed consequent on the negligence. Although, on its own it is not enough for him to show that the defendant created an increased risk of injury, the necessary causal link would be established if, as a matter of inference from the evidence, the defendant's negligence made a material contribution to the claimant's injuries. As Lord Rodger explained and demonstrated in Fairchild, there was "nothing new" in Lord Reid's comment in Bonnington that what was required was for the plaintiff to make it appear at least "that, on a balance of probabilities, a breach of duty caused, or materially contributed to, his injury". Lord Rodger observed that there was ample authority for the proposition in English and Scots law, both before and after Lord Reid had, in effect, treated it as so elementary that it required no support from authority. (our emphasis)
45. This, as it seems to me, was precisely reflected in the approach taken by the judge. In paragraph 74, he referred to the "but for" principle, but accepted, alternatively, that it would be sufficient for the claimant to prove "on the balance of probabilities, that the absence of proper non-slip paint caused or materially contributed to his slip and subsequent fall"."
95. Accordingly, a breach of duty needs to either cause or materially contribute to an accident for the purposes of establishing liability / proving causation.
Contribution and apportionment
96. The relevant provision is Article 3 of the Law Reform (Miscellaneous Provisions) (Jersey) Law 1960:
"3 Proceedings against, and contribution between, joint and several tortfeasors
(1) Where damage is suffered by any person as a result of a tort (whether a crime or not) -
.....
(c) any tortfeasor liable in respect of that damage may recover contribution from any other tortfeasor who is, or would if sued have been, liable in respect of the same damage, whether the joint tortfeasor or otherwise, so however that no person shall be entitled to recover contribution under this Article from any person entitled to be indemnified by the person in respect of the liability in respect of which the contribution is sought.
(2) In any proceedings for contribution under this Article the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person's responsibility for the damage; and the court shall have power to exempt any person from liability to make contribution, or to direct that the contribution to be recovered from any person shall amount to a complete indemnity." [Our emphasis]
97. No Jersey authority was drawn to our attention to illustrate the approach of the Court when dealing with contribution / apportionment under Article 3(2) of the 1960 Law.
98. In Ceva Logistics Limited v Lynch [2011] EWCA Civ 188, the claimant, an electrician employed by the second defendant, went to the first defendant's warehouse to carry out an electrical inspection. As he was walking along a narrow aisle, he was struck by a truck driven by an employee of the first defendant and suffered serious injuries. The question of apportionment needed to be determined and ultimately the judge concluded that liability should be apportioned as to 60% against the first defendant and 40% against the second defendant. The appeal was dismissed. The Court of Appeal reviewed the duties of both defendants and the question of apportionment, having regard to the overall circumstances. Dealing with apportionment, Jackson LJ said:
"58 In addressing the issues of apportionment, the judge summarised the respective responsibilities of the defendants as follows in para 76 of the judgment - "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."
59 Weighing up these factors, the judge apportioned 60% of the responsibility to the first defendant and 40% of the responsibility to the second defendant.
60 This court does not readily entertain appeals on apportionment, where the judge has had all relevant factors in mind and has not been influenced by irrelevant factors. The trial judge is in the best position to assess the percentages of responsibility.
61 In the present case the judge did indeed have all the relevant factors in mind. He set them out in a lengthy judgment, spanning 33 pages. Mr West has not pointed to any error of principle made by the judge in carrying out the apportionment exercise. I would therefore dismiss this element of the appeal."
99. Bearing in mind the similarity between the relevant provision in 1978 Act and the contents of the equivalent Article in the 1960 Law, we found the following extract from Clerk and Lindsell useful, under "apportionment of damages", the text says:
"4-29 The Civil Liability (Contribution) Act 1978 s.2(1) provides that the amount of the contribution recoverable from any person "shall be such as may be found by the court 17 to be just and equitable having regard to the extent of that person's responsibility for the damage in question". The court may order a contribution amounting to a complete indemnity or exempt a person altogether from liability to make a contribution. So wide is this discretion that the court may even decline to allow a party from whom a contribution is sought to be joined to the action where it forms the view that "no court would think it just and reasonable that [the party in question] should be ordered to make a contribution"....
4-30 There was some initial controversy as to the proper basis of apportionment but in Downs v Chappell Hobhouse LJ clarified that - "[i]t is just and equitable to take into account both the seriousness of the respective parties' faults and their causative relevance. A more serious fault having less causative impact on the plaintiff's damage may represent an equivalent responsibility to a less serious fault which had a greater causative impact." By contrast, where the causative potency of both parties" acts is equal, but the moral blameworthiness of one party's conduct is significantly greater than that of the other, the court will probably depart from an equal division of the damages. The apportionment of damages is substantially a matter for the discretion of the trial judge and an appellate court will revise his award only in very exceptional circumstances."
100. We considered the case of Furmedge v Chester Le Street DC [2011] WL 1151655, where the English Court considered a tragic accident involving a substantial inflatable structure which came loose of its moorings owing to a gust of wind leading to the death of two people inside and the injury of others. The only issue was apportionment between the local authority and a company which had roles in organising the event that ended in tragedy. Having referred to the passages from Clerk and Lindsell, to which we have referred, the Court made the following observations:
"176. Since each was responsible in the same way for the same damage, it seems to me that, if causative potency was the sole factor in deciding apportionment between them then, stopping at this point, there would be nothing to choose between them and an equal apportionment would be appropriate. It is, however, established that, whilst important, this is not the sole consideration and I must consider whether any other factors operate in this case to alter what seems to me to be the appropriate starting point.
177. It is established that acts and omissions which are not causative of loss may be taken into account for the purpose of assessing what (if any) contribution should be ordered. In Resource America International Ltd v Platt Site Services and Barkin Construction Ltd [2004] EWCA Civ 665 the Court of Appeal said this -
"Section 2 of the 1978 Act is not expressed exclusively in terms of causative responsibility for the damage in question, although obviously the court must have regard to this, as the section directs, and it is likely to be the most important factor in the assessment of relative responsibility which the court has to make. But in the result the court's assessment has to be just and equitable and this must enable the court to take account of other factors as well as those which are strictly causative. Such an assessment made by a trial judge will only be altered on appeal if it is clearly wrong."
101. When giving his decision, the judge noted at paragraph 182 that there is "probably no 'right' answer to the question I have to address". But doing the best he could, he determined the apportionment 45% to the council and 55% to the corporate entity.
Decision
102. In this case, the Plaintiff submitted, having regard to the evidence, that the apportionment of responsibility should be one-third to the Employer and two-thirds to CNR. The position of the Employer was that the apportionment should be 100% to CNR, and the position of CNR was that apportionment should be evenly split between the Employer and CNR.
103. We have considered the duty owed by the Employer to the Plaintiff. We have also analysed the statutory obligations owed under the 1960 Law to the Plaintiff by CNR. In addition, CNR owed a duty of care to the Plaintiff. At paragraph 12-06 Clerk and Lindsell says that "Where the injured worker is on loan from another employer, the borrowing employer will be treated as owing a duty in relation to aspects of the work under its control despite the worker not satisfying the tests for an employee used for vicarious liability". It was not disputed that CNR owed the Plaintiff a duty of care in respect of the work done by the Plaintiff on site on the day of the accident.
104. We have focussed as we must on the terms of the 1960 Law when considering the question of apportionment and asked ourselves what is just and equitable, having regard to the extent of each party's responsibility for the damage in question. We have considered the events of the day of the accident, the background to the accident and considered in that regard the conduct of the Employer and the extent to which that conduct, had it met an acceptable standard, would or may have made a difference to what occurred on that day.
105. For the reasons that we have explored above, Roger de Sousa's attitude towards health and safety of his employees in general and, in particular, those who were lent to CNR, including the Plaintiff, was casual, bordering on the contemptuous. We have found that the Plaintiff did complain about the safety of the platforms. His complaints were ignored by his Employer. Had those complaints been relayed as they ought to have been, as there was an open channel of communication between them by Roger De Sousa and the senior member of CNR staff responsible for safety at the Ann Court site, Steven Gueguen, then it is quite possible that he would have kept a closer eye on the installation of the platforms, given his staff additional directions, and the accident might not have occurred.
106. Although the Plaintiff had been lent to CNR and was under the day-to-day control of CNR's employees, the Employer remained responsible not only for the Plaintiff's overall safety, but was responsible for his pay, could direct him to work or not work on the site as he chose, and had sufficient staff onsite, including a supervisor in the form of Mr Da Silva or Ruben De Sousa who knew, or ought to have known at all times what the Plaintiff was doing. We have dealt with the general failures of the Employer above and the failures to provide, notwithstanding complaints made by or on behalf of CNR, his employees with the appropriate equipment and directions that were designed to ensure their safety on site. Although those matters were not the direct cause of the accident, they were demonstrative of a casual attitude towards health and safety and are matters which we think it just and equitable to take into account. There was not the free flow of information between Employer and employee that there ought to have been and, as stated by Mr Milnes, it is important for there to be such an exchange of information between employer and employee on health and safety matters. An employee is less likely to come forward about concerns about health and safety if they believe that their complaints are unlikely to be taken seriously or ignored. There was no such conduit for the Plaintiff to express his concerns. Such concerns as he did express were ignored. They should have been taken seriously and should have been notified, particularly in relation to the platforms, to Mr Gueguen. Mr De Sousa should have withdrawn his staff from the site if there was any question of them being exposed to dangers whilst working at height.
107. Nonetheless, on the day of the accident itself, the catalogue of failures which directly led to the Plaintiff sustaining injury were a consequence of the failures noted in the judgment in the criminal prosecution. They were exclusively the responsibility of CNR. In the circumstances, our conclusion was that the correct apportionment as between the Defendants in this case pursuant to Article 3(2) of the 1960 Law in respect of responsibility for the injuries that the Plaintiff suffered was 20% as to the Employer and 80% as to CNR.
108. We entered judgment in favour of the Plaintiff for damages to be assessed, and adjourned the question of quantum to be considered by the Master. Any applications for costs including applications for interim payments on account of costs by the Plaintiff must be made within 21 days of this judgment being finalised with any responses to such applications being made within 21 days of receipt. The Deputy Bailiff will then determine these matters without a hearing unless the Deputy Bailiff directs that a hearing is appropriate having regard to the contents of the written submissions received.
Authorities
Health and Safety (Management in Construction) (Jersey) Regulations 2016.
AG v CNR Construction [2022] JRC 050.
Conceicao v Silva Cleaning Services Limited [2020] JRC 226.
Health and Safety at Work (Jersey) Law 1989.
Health and Safety (Management in Construction) (Jersey) Regulations 2016.
Wilsons and Clyde Coal Company Limited v English [1938] AC 57.
McDermid v Nash Dredging and Reclamation [1987] ICR 917.
Morris v Breaveglen Limited [1993] ICR 766.
Employers' Liability (Compulsory Insurance) (Jersey) Law 1973.
Clerk and Lindsell on Torts.
Uren v Corporate Leisure [2011] EWCA Civ 66.
Kondis v State Transport Authority [1994] 154 CLR 672.
Nelhams v Sandells Maintenance Limited and Gillespie (UK) Ltd [1996] PIQR P52.
Civil Liability (Contribution) Act 1978.
Lee Wai Man v Weh Leung Finance Limited [2004] HK CFI 116.
Cook v Square [1992] (ICR) 262.
Cassley v GMP Securities Europe LLP [2015] EWHC 722.
Louis v E. Troy Ltd [1970] JJ 1371.
Clough v First Choice Holidays [2006] EWCA Civ 15.
Law Reform (Miscellaneous Provisions) (Jersey) Law 1960.
Ceva Logistics Limited v Lynch [2011] EWCA Civ 188.
Furmedge v Chester Le Street DC [2011] WL 1151655.