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Legal case

How much should work undertaken by specialist contractors occupy the mind of those in charge of premises?

The occupier of commercial premises was not liable for the injuries sustained by a labourer working for their contractor.

Ruben Moreira (a protected party by Ms Susete Araujo, his Wife and Litigation Friend) v Ashley Moran t/a ACH Joinery and Building Contractors, Christopher Dunne t/a CD Landscaping and Construction , Prolake Balls Limited [2021] EWHC 1800 (QB) 20210 WL 02722482

Executive summary

The occupier of commercial premises was not liable for the injuries sustained by a labourer working for their contractor when he fell from an unguarded mezzanine.

Facts

The third defendant ran factory premises. Following a recommendation from their landlord and as a result of a previous successful joinery job for them, the third defendant engaged the first defendant (a self-employed joiner and builder) to construct an office on a mezzanine at their premises. The mezzanine, part of which had no guarding protecting against the drop down to the floor below, was used by the third defendant for storage and was accessed via a staircase at the top of which was a rail which had to be removed to enable access. This rail had been removed during the course of the job. The second defendant (a self-employed builder) had agreed to assist the first defendant on the project and the claimant was working for the second defendant at the time. The claimant fell from the unguarded section of mezzanine when he lost control of some stacked boards he was required to hold. As a result, he sustained a brain injury and skull fractures. Both the first and second defendants had pleaded guilty to health and safety offences during the previous HSE investigation. The claimant’s claim against the third defendant was pleaded on the basis of a breach of common law and breach of the Occupier’s’ Liability Act 1957.

Decision

The court found that the first defendant was in control of the contract and therefore owed a duty of care to the claimant. The court also found that the claimant was an employee of the second defendant who therefore also owed a duty to him. Although the claimant paid his own tax and NI, the claimant was “carrying out the business of the second defendant” who exercised complete control over the claimant’s work. Both defendants were found equally liable for the claimant’s accident, given the obvious risk of a fall from the unguarded mezzanine.

In respect of the third defendant, it was found that although they did owe a duty of care to the claimant under the 1957 Act – the danger arising from the condition of the premises (the unguarded mezzanine) rather than arising solely from the activity being conducted on the premise – they had not breached that duty. They were unaware of the removal of the access guard and further unaware of unsafe work being conducted on the unguarded mezzanine. Even if the third defendant had been aware of the work in that location, the court held that they were entitled to take the view that the first and second defendants were skilled workmen who would themselves guard against any obvious risks. This was not one of those limited cases where the occupier should be made a joint tortfeasor. The third defendant was a small enterprise with no relevant construction knowledge.

The claimant was not found contributorily negligent as he was acting strictly under the control of the first and second defendants and merely following their orders. The claimant’s claim therefore succeeded in full.

Commentary

Whilst this case provides further authority for the established principle that in most circumstances, an occupier will not be liable for the negligence of a competent independent contractor they have engaged, it again acts as a reminder that an occupier can in principle be liable as a joint tortfeasor, depending on their knowledge and expertise contrasted with those of the contractor concerned. Arguably, the third defendant might have been vulnerable to a finding against them on the facts, given the concession that their own risk assessment was flawed in not recognising the risk of the unguarded mezzanine in situ. Arguably too, the claimant was lucky to avoid any finding of contributory negligence for working in proximity to an obviously dangerous, unguarded mezzanine edge. However, given the court stressed several times he was a relatively unskilled labourer, it’s clear that in such circumstances the court will be slow to attach any fault to a claimant, even if a risk of injury is clear. Those who control and direct such dangerous activities, in respect of an unskilled employee, will generally be fully liable for their negligence.

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