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King v Farmer, High Court, 6 August 2004

1 October 2004
The issues

Employer Liability – Construction (Health, Safety and Welfare) Regulations 1996 – Whether Sub Contractor Or Employee

The facts

The Claimant brought a claim for personal injuries following a fall from a ladder. The Defendant was a building contractor. He was asked by the managing agents of Hugh Sexey’s Hospital to do some decorating and general maintenance work. To undertake the work scaffolding was erected, by a firm, TC Scaffolding. There was no complaint against the scaffolders. The Defendant employed the Claimant’s firm to do the work. In accordance with common practice no ladder was supplied by the scaffolding company to reach from the ground level to the first stage.

On 5th June 2000 the Claimant arrived at the property. The scaffold had been erected to assist a carpenter, Mr Burt, to do some work. Previously Mr Burt used his own ladder to reach the first stage of the scaffolding. On this morning Mr Burt had not arrived. The Claimant used his own ladder to get on with the work. He put up his ladder and started to climb it and had no recollection of what happened thereafter but was found at the foot of the ladder seriously injured. The ladder was found still against the scaffolding but slightly askew.

The Claimant alleged a breach of statutory duty namely of the construction (Health, Safety and Welfare) Regulation 1996 alleging against the Defendant that it had breached its duty to ensure that the ladder was properly footed and further that they had breached their duty to provide a safe means of accessing the scaffold. He alleged that the Defendant was the Claimant’s employer.

The decision

The parties saw this not as an employer/employee relationship but as one of main contractor/sub contractor. This was not determinitive but was a factor to take into account.

2. Three questions had to be asked:-

(a) Was the Claimant an integral part of the Defendant’s organisation. (The organisational test)

(b) Who bore the risk of loss and the chance of profit?
Was the Claimant really in business on his own account? (The economic reality test)

(c) Looking at all the relevant factors did the scales come down in favour of employment or self-employment. (The multiple test)

Applying these tests the relevant factors were:-

a) The Claimant fixed his own rate of pay by quoting for the initial work.
b) The Claimant provided his own tools and necessary materials.
c) The Claimant himself had sub-contracted carpentry work to Mr Burt and was entirely responsible for paying him.
d) The Claimant had control over the way in which this job was carried out.
e) The total payment for labour and materials was paid on an invoice raised by the Claimant when all work was completed.
f) The partnership, King Decorators had a number of major customers and was a successful business. It was not dependant upon the Defendant for work.
g) The parties themselves regarded the relationship as that of a main contractor/sub contractor.

On this basis, the Claimant was in no way an integral part of the Defendant’s firm. The Claimant was in business on his own account making his own profit from the contract. Thirdly, having regard to the method of payment, organisation of the work, provision of tools and materials the scales came down in favour of self employment. The relationship between Claimant and Defendant was not that of employer/employee. The Claimant was self employed.

The Regulations imposed a duty upon a person who was not an employer if that person controlled the way in which the construction work was carried out. There would be doubt that the Defendant was in a sense in control in that he was the main contractor and charged with getting the job done. The Regulations however seemed to require more than merely controlling the work but control of the way in which a person at work carried out the work. See McCook v Lobo [2002] EWCA Civ 1760. The way in which the Claimant organised and carried out his work was entirely within his own control.

On the facts the Court was unable to find that the Defendant controlled the way in which the Claimant carried out his work.

No liability therefore attached to the Defendant within Regulation 4 within the Regulations. Had it been necessary to make a finding as to contributory negligence he would have found the Claimant 75% contributorily negligent.

Claim dismissed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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