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Health and safety and contractors: leading cases

HEALTH AND SAFETY, CONTRACTORS AND EMPLOYEES

Employment lawyers in Bristol, particularly those based in Clifton, have been concerned to keep up with developments in the law related to health and safety in relation to employees and contractors. This area of law is fast-developing. The following selection of decided cases illustrates the evolving attitudes of the courts to this issue.

K R Page v J A Read (1985) Court of Appeal

A contractor who hires a self-employed subcontractor to undertake work does not owe any duty of care to supervise the subcontractor’s work and to volunteer additional safety equipment or advise a safe method of work. The duty of a contractor to a self-employed subcontractor is lower than that owed by an employer to an employee and is limited to making reasonably sure that any equipment voluntarily offered is reasonable safe.

P was a self-employed painter and decorator. He was hired by R, who was the main contractor on a house building site, to paint houses. No scaffold was available to improve the safety aspect of the work of painting the fascia boards of a house. P sat on the roof and leaned over to do the painting. He fell and was injured. He claimed compensation for R’s alleged negligence in failing to provide proper scaffolding.

The Court of Appeal made the following points:

  • To succeed in his case, P would have to show that he was owed a positive duty of care to all intents and purposes co-extensive with that owed by an employer to an employee.
  • There was no authority for such a proposition and the court would not introduce it now. The general law of negligence compelled all people, contractors and subcontractors included, to refrain from doing things which they ought reasonably to know will harm their neighbour (in the legal sense, this is any person likely to be affected by their activity).
  • Under this principle, a contractor who volunteers the use of equipment to a subcontractor must take reasonable steps to ensure that it is safe for that particular use. But apart from this, there is no positive duty of supervision or to offer safety equipment when this might be appropriate. The contractor’s duty to the independent contractor was in this sense lower than that owed by an employer to an employee.
  • Apart from contract, there was no obligation to provide equipment for an independent contractor. If the contractor wished to carry out the work in a risky way, that would be a decision which he was entitled to take.
  • On the other hand, if a person voluntarily provided equipment which he knew or ought to have known was defective, in circumstances in which it was reasonably foreseeable that an independent contractor would use it and would be injured, then that person would be liable in negligence.
  • If such a person simply abstained from supplying any equipment at all, being under no contractual duty to do so, then he would not have been guilty of a failure to take reasonable care to avoid an act or omission which is likely to injure the contractor.

Lee Ting Sang v Ching Ch-Keung and another (1990) 2 WLR 1173, Privy Council

L was a mason who worked for a subcontractor at a construction site, chiselling concrete as instructed by the subcontractor. He used tools supplied by the subcontractor. His work was not supervised but was inspected periodically by the main contractor’s foreman. L was paid either a piece-work rate or a daily rate. If he finished work early he helped the subcontractor to sharpen tools. He sometimes worked for other contractors but he gave priority to urgent work of the subcontractor. He was injured during the course of his work.

At first instance the court ruled that L was not an employee and was not entitled to compensation from either the subcontractor or the main contractor. This decision was upheld by the Hong Kong Court of Appeal. L appealed to the Judicial Committee of the Privy Council. The appeal succeeded. The Privy Council stated that the decisions of the courts below had been contrary to the facts and had been so unreasonable as to amount to an error of law. The fundamental test in deciding whether a person was an employee or an independent contractor was whether or not he performed services as a person in business on his own account.

Bottomley v Todmorden Cricket Club [2004] PIQR P18, Court of Appeal

Chaos Encounter (CE) was a two-man stunt team carrying out a pyrotechnic display at T’s annual fundraising event. B was an unpaid volunteer engaged to help CE. He suffered serious injuries and claimed compensation from T and from CE. At first instance, the judge made the following findings of fact:

  • B had no training or experience in the use of pyrotechnics.
  • The pyrotechnic display was potentially very dangerous.
  • T was aware before the event that CE intended to perform a dramatic night-time stunt involving pyrotechnics.
  • CE had no public liability insurance cover.
  • No-one from T’s committee had asked about insurance.
  • The safety equipment provided to B was inadequate.
  • There was no formal contract between T and CE, and T had no clear idea of the stunt which CE was to perform.
  • T had failed to take reasonable care to select a reasonably competent stunt operator and had failed to take adequate steps to find out whether CE was insured.
  • T was vicariously liable for the negligence of CE because, although they were independent contractors, it had engaged them to carry out an extra-hazardous activity on its premises.

The judge stated the following principles of law.

  • A person who engages an independent contractor to carry out works is not liable for the negligence of the contractor, provided that person exercised reasonable care to engage a reasonably competent contractor.
  • An occupier of land does not owe a duty, either under common law or the Occupiers Liability Act 1957, to an employee or agent of an independent contractor who is carrying out an activity on the occupier’s land where the employee or agent is injured because of the way in which the activity is carried out.
  • Some activities are particularly hazardous. Where this is so, the law imposes a duty on the employer to see that care is taken, and the employer is vicariously liable for negligence on the part of the independent contractor.

At first instance it was found that T was vicariously liable for the negligence of CE. It had been in breach of its duty to take reasonable care to select a reasonably competent independent contractor. Checks would have revealed that CE had no public liability insurance. T appealed to the Court of Appeal. That Court dismissed the appeal and made the following points:

  • There was ample evidence that T had failed to exercise care when selecting CE.
  • The occupier who wishes something dangerous to be done on his land, for his benefit, by an independent contractor, may be liable.
  • The injuries suffered by B were foreseeable if there was no proper safety plan.
  • It was fair, just and reasonable to impose liability on T.

Makepeace v Evans Brothers (Reading) and another (2000) The Times, 13 June, Court of Appeal

M, a painter and decorator, was working from a tower scaffold when it toppled over. He suffered head injuries which left him permanently disabled. The tower had fallen either because it had been erected without stabilisers or because M had upset its balance. M was employed by E, who had been engaged by the main contractors. The main contractors had supplied the scaffold. They had told M that he could borrow the scaffold. No-one asked him if he knew how to erect and use the tower.

M’s claim for compensation against E succeeded. His claim against the main contractors was dismissed. There was doubt as to E’s ability to meet the judgment and M appealed against the dismissal of his claim against the main contractors.

The appeal was dismissed. The general principle was that main contractors owed no duty of care to a subcontractor’s employee to ensure the safe use of a tower scaffold which they provided for use on a building site.

It would extend the nursemaid school of negligence too far to require the main contractors to ask whether he knew how to use the equipment safely and the inherent dangers in its incorrect use. A tower scaffold was an ordinary piece of equipment of a kind frequently used on building sites by painters.


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