Can the occupier and employer both be liable?

In Paul Chadwick v R H Ovenden Ltd & Rian Hamilton (2022 EWHC 1701 QB) the High Court had to ascertain the employment status of an aircraft dismantler and consider whether an occupier and employer could both be liable for his injuries.

The claimant was instructed by the second defendant to remove a metal panel as part of dismantling an aircraft at Manston Airfield. When the grinder suggested by them failed to do the job, the claimant selected an alternative grinder to cut through the panel. The grinder came in to contact with an oxygen cylinder which, unknown to him, was positioned behind where he was cutting, causing an explosion. The claimant was knocked unconscious and sustained permanent injuries to his eyes and hands, rendering him unable to work. Both defendants denied liability.

Decision

Trying to make sense of unclear legal rights and obligations, the reality of various overlapping jobs undertaken on site, and ‘self-serving’, vague and inconsistent evidence adduced on behalf of the second defendant in particular, the Judge found as a matter of interpretation that:

• the first defendant had full contractual permission from the airfield to dismantle the aircraft;
• the first defendant subcontracted the physical dismantling to the second defendant;
• on the basis of how he had held himself out to the HSE, and in his defence, the second defendant was a self-employed contractor rather than an employee of a third party;
• the first defendant had retained certain control over the aircraft and certain duties including the duty to conduct a safety inspection. The claimant’s expert evidence was preferred in identifying the need for a competent and qualified safety inspection of the aircraft before any dismantling work commenced.

The Judge held that the claimant was an employee of the second defendant rather than self-employed, on the basis that Mr Hamilton:

• allocated the jobs to the claimant;
• instructed the claimant how to carry out those jobs;
• provided or made available the tools to do the jobs;
• set the hours of work;
• supervised the claimant;
• paid the claimant a fixed weekly wage;
• Required the claimant to work full time at the airport, with no possibility of the claimant sending others to work in his place.

Notwithstanding the introduction of Section 69 of ERRA, in the Judge’s opinion it was not correct to say that a breach of statutory regulatory will always constitute negligence but similarly ERRA did not alter the common law duty of negligence. A duty at common law and whether the duty had been complied with would likely be informed by HSE law and the regulations as to what was reasonable.

As employer, the second defendant had failed to take reasonable steps (when judged objectively) to provide a safe place of work and was in breach of its duty of care to the claimant. The second defendant had failed to ensure that a proper safety inspection had been carried out, rather than an unskilled cursory review. A risk of injury from dangerous items (particularly oxygen) was foreseeable as was the presence of the cylinder. The second defendant had also failed to provide adequate instruction or training. The job allocated was “doomed to fail”.

In respect of the first defendant, the Judge found it had, amongst other things, retained responsibility for the risk assessment and method statement and safety inspection. Unlike section 3 of the HSWA, section 4 (the duty to keep premises safe, which overlapped “very significantly” with the common law duty) envisaged multiple operators having control of a workplace and the first defendant was in breach of their common law duty for retaining some control but failing to take reasonable steps to prevent reasonably foreseeable harm as they failed to undertake or arrange the proper safety inspection.

The Judge refused to find that the claimant had been contributorily negligent or so grossly negligent as to break the causal chain. “It is a high barrier to overcome” for an employer who provides an unsafe place of work, fails to train, instruct or properly supervise, to pass blame on to their employee. As the second defendant had instructed the claimant to remove the panel and the requested tool had not been suitable, and staff were expected to use their initiative, it was “inevitable” that the claimant would try another tool, and he was entitled, as a casual labourer inexperienced in such dismantling to rely on his employer who had failed to conduct the necessary safety inspection.

This case acts as a stark reminder that the courts will look beyond the position maintained in lay evidence in order to determine the true employment status of, and duties owed to, those injured, and that the identification of an obvious tortfeasor won’t exclude the imposition of liability on others where breaches of the common law are identified.