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Duncan v Acrabuild Ltd, High Court, 29 July 2008

5 September 2008
The issues

Construction (Health, Safety and Welfare) Regulations 1996 – Work at Height Regulations 2005.

The facts

The Claimant, David Duncan, had an accident at work on the 12th April 2005. At the time he was undertaking a building project involving the construction of a 3,000 square foot single storey dwelling at a site known as Casewick Stud, near Stamford in Lincolnshire and his wife, who was the Defendant’s company secretary. The project manager was John Foster and the site manager Nigel Cleeve, John Cleeve’s brother. The Duncan’s were a family of carpenters. David, the Claimant, was the youngest son of the family. They worked for Acrabuild Ltd regularly but not exclusively. The Claimant, then 26, was an apprentice carpenter and joiner, having been apprentice to his father in September 2003. He was attending college twice a week working for his National Vocational Qualification. He was due to complete his apprenticeship in June 2005. They were contracted to provide all necessary labour, plant, materials and equipment and we paid at day rates. Although the Defendant denied in the Defence that the Claimant was an employee the allegation was not pursued. The Claimant and his older brother Neil began work on site in March. In April Neil went on holiday leaving the Claimant on site and agreeing that another joiner, Stuart Randell would supervise him while Neil was away. On the day before the accident the Claimant and Stuart Randell were engaged in constructing rood trusses. They were engaged in noggin-out, involving the fixing of timber strips to roof rafters. It was a simple, repetitive and boring task. It was one the Claimant had carried out on many previous occasions. Mr Randell was called away and the Claimant was left alone in bedroom 3. The Claimant set up a platform from which to work, consisting of H-frame trestles with scaffold boards laid across them. The Claimant’s case was that the platform was approximately 1100mm from the ground. The Claimant decided to climb into the roof space. The Claimant pulled himself up between the rafter and after completing some work, swung back down onto the platform but bumped his head on the rafter he was holding. He then lost his balance and fell onto the floor and hit his head.

The reasons he gave for so doing were rejected by the Judge. The Judge accepted that he must have had some reason to climb onto the rafters but that he did not do so for any purpose associated with the job of noggin-out in bedroom 3.

The Claimant brought a claim in negligence and breach of statutory duty.

It was conceded that the Claimant was not an employee of the Defendant.

The decision


The Claimant’s task was a simple one which required no specific instruction or supervision. The Defendant’s employees had no reason to foresee that the Claimant might enter the roof space. Even if he had had to, scaffold and ladders had been provided to enable him to do it safely.

The evidence was that method statements and risk assessments were kept in a drawer in the site office and that they were not actually given or shown to the Claimant or his brother. There was no site induction provided to the Claimant and his brother. If, and to the extent that any specific activity required adherence to a particular method of working or if there were any specific risk of which the Claimant ought to have been made aware, it would not be sufficient for that simply to be identified in a document kept in a drawer, but the risk which the Claimant took when deciding to climb into the rafters in the way he did was one which must have been entirely obvious to him and did not need to be drawn to his attention. The accident was therefore not caused by any negligence on that part of the Defendant.

Breach of Statutory Duty

Allegations had been brought under the Management of Health and Safety at Work Regulations. However, in the light of the concession that the Claimant was not an employee, Regulation 10 was not applicable.

Allegations were also brought under Regulation 5 of the Construction (Health, Safety and Welfare) Regulations 1996. The Claimant was a labour only sub-contractor who carried out such tasks as the Defendant required him to carry out from time to time using the Defendant’s materials and equipment. There was no doubt that the Defendant had control in fact with the way in which the construction work was carried out. At the material time, the Claimant’s place of work was bedroom 3 and, more specifically, the platform from which he was working. Both of these places were safe since they provided no foreseeable risk of injury to people behaving in a reasonably foreseeable manner, as were the means of access to and egress from them. The roof space above the rafters was not a place of work for the Claimant on that day but, even if it had been, there was suitable and sufficient safe access to it, namely the scaffold around the building and the ladders within it. Regulation 5(3) was not engaged at all. This was directed towards preventing access to unsafe places or places where there was not suitable and sufficient safe access. The roof space may or may not have been an unsafe place in which to work, in that it was not boarded out, but if, and insofar it was an unsafe place of work, such unsafety did not cause the Claimant’s accident. There was a suitable and safe access to and egress from the roof space.

Allegations were also brought under the Work at Height Regulations 2005. For the purpose of those regulations the Claimant was a person under the Defendant’s control. Regulation 4 required that work at height be properly planned, appropriately supervised and carried out in a manner which was, so far was reasonably practicable, safe. The work of noggin-out was appropriately planned and appropriately supervised. It did not require the Claimant to have someone standing over him at all times, nor did it require that the Claimant be told that he was not to climb into the roof space, nor that if for some reason he chose to do so, he should not use the scaffold or a ladder. That part of the Regulation requiring an employee to ensure that the work was carried out in a manner which was, as so far as is reasonably practicable, safe was more troublesome in that it was a very onerous provision. The Claimant however failed because, at the time of his accident, the Claimant was not engaged in the work he was required to do. He was, for some reason unconnected with his work, interrupting his work to enter the roof space. The accident was not therefore caused by the “manner” in which he was carrying out his work.

If this was wrong, what he was doing was beyond the extent of the Defendant’s control within the meaning of Regulation 3(2). Moreover, there was nothing reasonably practicable for the Defendant to have done to prevent the Claimant from doing what he did. It had been suggested that providing the Claimant with instructions, either at site induction or providing him with risk assessments or method statements might have sufficed. The Court could not see that this would have any effect however. It would have been informing the Claimant of what he must very much have been aware, namely “obvious and elementary safety precautions”. Insofar as Regulation 6 of the Work at Height Regulations was concerned (6(3)) suitable and sufficient measures were taken to prevent his falling, that the work could not be carried out from an existing place of work, and he was provided with sufficient work equipment.

As to allegations under the Work at Height Regulations that he should have had adequate training, information and instruction, following McCook v Lobo the Court did not accept that the provision of any such information or instruction was required because the same would only draw the Claimant’s attention to obvious risks of which he was already aware.

Had the Claimant succeeded the Court would have assessed contributory negligence in the sum of 50%.

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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