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McCook v Lobo(1) London Seafood Ltd (2) Stanley Headley (3)

27 November 2002
The issues

Construction (Design & Management) Regulations 1994 – Construction (Health, Safety and Welfare) Regulations 1996 – ladder – fall.

The facts

The First and Second Defendants owned the premises that the Claimant worked on as a general labourer. The premises were being converted. The Third Defendant was a building contractor. The Claimant was fixing a waste pipe to a ceiling, when he fell from a ladder, which was unfooted and unsecured. The Claimant was employed by the Third Defendant. The Claimant submitted that the First and Second Defendants were liable, both in negligence and under the provisions of the Construction (Health, Safety and Welfare) Regulations 1996 and the Construction (Design & Management) Regulations 1994. The First Defendant visited the site from time to time and issued instructions to reduce risks. He assumed no responsibility for the supervision of the Claimant or any other of the Third Defendant’s employees. He relied upon the Contractor, the Third Defendant, to supervise. The Trial Judge dismissed the claim against the First and Second Defendants and found the Third Defendant 25% liable. The Claimant appealed.

The decision

1. If there was an obligation to comply with the 1996 Regulations, it could not be delegated.

2. The person in “control” of a construction ordinarily would be the worker’s employer. The employer owed an express duty under Regulation 4(1) of the 1996 Regulations. Whether an appropriate level of supervision should have been exercised by someone else, was a question of fact. The Third Defendant clearly had responsibility for the Claimant’s task.

3. Regulation 21 of the 1994 Regulations, provided that a breach of those Regulations would not give rise to civil liability. However, if the First Defendant was in breach of Regulation 10 of the 1994 Regulations, this was a provision for which civil liability was not excluded.

4. Regulation 10 provided for the fact that construction should not be started without a health and safety plan being prepared in respect of a specific project. It was clear that there was a breach of Regulation 10. However, the breach of Regulation 10 did not cause the injury. Even the most detailed health and safety plan would be unlikely to contain any provision in respect of the footing and securing of ladders. In any event, such a plan would add nothing to the Third Defendant’s obligations. The Judge was entitled to hold that the causative link against the First and Second Defendant was not made out. Appeal dismissed.

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