Claimant falls short in proving liability for statutory breach post ERRA

Lewin v Gray [2023] EWHC 112 (KB)

The High Court has determined that, notwithstanding a breach of the CDM Regulations by an occupier of a farm building, he was not liable for the paraplegic injuries sustained by a self-employed building contractor who slipped off boarding and fell backwards through a fragile roof whilst engaged undertaking work at height.

In Lewin v Gray, it was common ground that the defendant was a commercial client for the purposes of the Construction Design and Management Regulations 2015. As such, it was the defendant’s obligation under Regulation 4(5) to ensure that before the construction phase began, a construction phase plan was drawn up by the claimant as the contractor. Unfortunately, the defendant had made no enquiries how the claimant proposed to undertake the job. The claimant contended that, had the defendant asked for a plan, he would have addressed the risks of falling from height more thoroughly and would have requested the defendant provide an elevated cage to act as a crash deck, the cage having been available and used on previous jobs at the property. Both parties were aware that the roof was fragile, hence the claimant’s system of using crawling boards to stand on the roof whilst being passed guttering from below, an activity described as “obviously potentially dangerous” by HHJ Gore KC, but reasonable for an experienced roofer like the claimant to undertake.

Given the claimant’s knowledge and past experience of working at the farm, no criticism could be levelled at the defendant for his selection of the claimant as a competent contractor or for any failure to supervise Mr Lewin. Further, reciting section 2(3)(b) of the Occupiers’ Liability Act 1957, HHJ Gore KC held that the defendant was entitled to rely on the claimant to appreciate and guard against risks inherent in performing the guttering work such that no liability arose under the 1957 Act.

Consequently, the two key factors for the Judge to consider were whether:-

1. the defendant owed a duty of care in tort to ensure that the claimant produced a Construction Phase Plan (‘the Plan’), and if so,
2. whether failure to discharge that duty caused or materially contributed to the claimant's accident?

The claimant was clearly the more experienced of the two parties. In the judge’s opinion, absent the particular CDM obligation requiring a “client” (the defendant) to ensure that the contractor claimant produced the Plan, there could be no justification for imposing any such obligation at common law - “A regulatory requirement for the client of building works to require the contractor to provide a document which is itself a creature of a specific Regulation cannot be equated with a duty at common law”. Referencing the Enterprising and Regulatory Reform Act (ERRA) 2013, which removed the civil cause of action for breaches of statutory regulation, the judge opined that “it may well be that a particular breach of statutory duty constitutes "ipso facto" negligence, but it does not seem to me that breach of Regulation 4(5) does in this case”.

Consequently, the defendant’s failure to ensure the claimant produced the Plan did not render him liable under the first limb. However, even if the judge had been wrong on that point, HHJ Gore found that requiring the claimant to produce a written plan would not, on the evidence, have prompted the claimant to ask for the elevated cage to be used as a crash deck. In this regard, the judge made reference to the model plan promoted by the HSE, which makes no reference to a crash deck, as a control measure.

Had the defendant been fixed with a liability, HHJ Gore held that this would only have been to the extent of 25% of the value of the claim. In his opinion, the claimant would have been fixed with 75% contributory negligence, being the man with experience and skill, who had used crash decks before, unlike the defendant who was only being pursued for the failure to ask the claimant to prepare the Plan. However, such comments were obiter given the claimant failed to establish that the defendant was liable for the consequences.

HSE statistics continue to highlight falls from height as one of the biggest causes of fatalities and major incidents at work, and therefore it is incumbent on everyone involved in such activities to be vigilant, and communicate effectively in respect of the planning and execution of such construction works. However, this judicial decision will be welcomed by occupiers and their insurers in respect of CDM cases involving specialist contractors, helpfully illustrating that, post-ERRA, not every technical breach of statutory duty will support a finding of negligence and result in a finding of liability.