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Occupiers' liability: A duty to supervise construction works?

01 July 2021

Today's High Court judgment in Moreira v Moran t/a ACH Joinery and Building Contractors & Ors provides welcome guidance on what is expected of small business occupiers in terms of supervising construction works undertaken by independent third parties in their own premises. DWF's David Woolley and James Rowley QC of Byrom Street Chambers acted on behalf of the occupier.

Moreira v Moran t/a ACH Joinery and Building Contractors & Ors [2021] EWHC 1800 (QB) (01 July 2021)

Background

The claimant, a labourer, sustained a severe head injury when, at premises rented by Prolakeballs, he fell from an unguarded mezzanine onto a concrete floor below. 

Prolakeballs' business is selling reclaimed golf balls, so-called lake balls. The balls were bought in bulk, washed, graded and packaged for resale. They entered into an agreement with the first defendant, a self-employed joiner and builder, to build a wooden office on a mezzanine at their premises. In the months before the accident, the first defendant sometimes carried out jobs with the second defendant, also a self-employed builder. The second defendant, having agreed to assist the first defendant on this project, in turn engaged the claimant as a labourer.

On the morning of the accident, the works were to involve boarding the office, the carcass having been constructed the previous week. The first task was to carry approximately 30 MDF boards from ground level to the mezzanine. A decision was taken by the first and second defendants to unload and stack the boards on a section of the mezzanine that was unguarded. The unloading process took 30 minutes with the first defendant passing boards from his van to the claimant, and the claimant then passing each board from the ground level up to the second defendant, who was standing on the unguarded mezzanine. The second defendant stacked the boards against the back wall of the unguarded mezzanine and the next step was to move them into the area where the office was being built. Before doing that, the second defendant removed a guardrail which had previously prevented access from the guarded section of the mezzanine on which the office was being built to the unguarded section of the mezzanine. The exercise of moving the boards involved the claimant taking the full weight of the boards whilst the second defendant slid individual boards out. As the claimant did so, he was unable to cope with the weight and fell from the edge of the unguarded mezzanine. 

The accident was witnessed by a worker of Prolakeballs who was cleaning and grading golf balls in the main floor area at ground level at the time. He had seen the accident and the boards being handed up beforehand. One of the two directors of Prolakeballs who had been moving around the premises that morning and had at various times been in the main floor area at ground level gave evidence that he had not seen what the second defendant and the claimant had been doing, and also had not seen them handling the boards up onto the unguarded mezzanine. 

The director was asked about control and confirmed he had control over where the men worked but not how they did their work as that would have equated to supervising them. He accepted he had the ability to stop them if their particular way of doing the work was dangerous. 

Findings

Mr David Allan QC sitting as a High Court judge found that the decision to work on the section of mezzanine with an unguarded edge created an obvious risk of a fall and serious injury, such that before any works on it were carried out a barrier should have been constructed. It is evident that the judge had no difficulty in finding both the first and second defendants in breach of the duty of care they owed the claimant, in failing to provide a safe place of work and a safe system of work. Both the first and second defendants were guilty of negligence which caused the accident.

The judge accepted that the director of Prolakeballs was unaware that the guardrail which had previously prevented access to the mezzanine floor had been removed until after the accident or indeed that there had been any intention to remove it. The director's evidence was that he was not aware of the manner of transfer of the MDF boards onto the unguarded mezzanine and there was no evidence to contradict that. He had not noticed anything which caused him to intervene in the work. The judge accepted that the first defendant appeared to the director of Prolakeballs, who had no construction experience, as a reasonably competent contractor. 

He found that the danger arose out of the static condition of the premises and therefore the Occupiers' Liability Act 1957 did apply. However, no danger would have arisen but for the decision of the first and second defendants to work on the unguarded section of mezzanine. When considering the issue of whether Prolakeballs as occupier was in breach the judge underscored that the rail designed to prevent access to that section of mezzanine had been defeated by the claimant and second defendant without the occupier's knowledge. The judge emphasised that:

"[e]ven if in moving between the various parts of the factory [the director] had caught sight of the workmen transferring MDF boards up to the unguarded mezzanine, or from that section of mezzanine to the area where the office was to be built, he had entrusted the work to what he understood to be experienced workmen. Section 2(3)(b) of the 1957 Act provides that an occupier may expect that a person in the exercise of his calling will appreciate and guard against any special risks ordinarily incident to it so far as the occupier leaves him free to do so. [The director] had no knowledge of construction work nor did [Prolakeballs' worker], who did witness what the men were doing. They were entitled to take the view that these were skilled workmen who would guard against obvious risks. In these circumstances there was no breach of the common duty of care owed by [Prolakeballs] to the claimant."

The judge referred to the decisions in Ferguson [1987] 1 WLR 1553 and Fairchild [2002] 1 WLR 1052 by the House of Lords of and Court of Appeal respectively which contemplated that there could be circumstances where an occupier would be a joint tortfeasor: 

"This might arise where the occupier is a substantial enterprise with a full-time safety officer who performs a role supervising work being carried out on the premises by independent contractors. In contrast, [Prolakeballs] was a small enterprise with two full-time employees, one of whom was [the director], and a few part-time employees. None of [Prolakeballs'] workers had any expert knowledge of joinery or construction work. If one asks the question whether in these circumstances [Prolakeballs] owed a duty of care to [the claimant] to recognise that the place and system of work were unsafe, the answer must be no. [Prolakeballs] was not a joint tortfeasor in respect of the accident to [the claimant]. I therefore conclude that there is no liability on [Prolakeballs] for this accident."

Comment

The judgment recognises that small business owners are not required to supervise construction works on their premises where they engage independent contractors, insofar as those independent contractors are apparently reasonably competent. The duty to supervise or to employ a competent person to supervise the works is only likely to apply to substantial enterprises and/or those businesses who have expert knowledge of the works being undertaken. This decision will no doubt come as a welcome relief to small business owners and insurers alike. 

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