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Kmiecic v Isaacs, High Court, 12 March 2010

19 March 2010
The issues

Occupiers Liability – Working at Height Regulations 2005 – Provision and Use of Work Equipment Regulations 1998 – Construction (Health Safety and Welfare) Regulations 1996 – duty owed by householder to employee of contractor working on the premises.

The facts

The Claimant was employed by Mr Sniegula as a casual labourer. Mr Sneigular was a building contractor. Mr Sniegula was contracted to do work on the Defendant’s house at 2 Frognal Way, Hampstead. On the day of the accident (17th June 2006) they were roofing the garage. The Claimant said he was standing on a ladder which belonged to the Defendant whilst holding a role of roofing material which he intended to pass up to a colleague on the roof of the garage. As he did so, the ladder toppled and he fell 1.5 meters to the ground. He suffered a fracture of his right elbow, from which he had made an incomplete recovery. His employer was not insured and proceedings were not commenced against him. Instead, proceedings were begun against the Defendant as owner of 2 Frognal Way. The matter came before the Judge on the matter of liability only. The householder was not informed immediately of the fact that the accident had occurred. Mr Sniegula told the Claimant not to report the matter to the Defendant. The Defendant did not become aware of it until September 2006.

It was common ground that the ladder was inappropriate as a way of getting onto the roof. It was too short and the surface on which it was standing was not level.

The Claimant’s case was that when he got to the garage there was a step ladder inside which he was told by Mr Sniegula to use to get onto the roof. They told him that the ladder was too short and they would need longer ladders. Mr Sniegula suggested that they use an upstairs window which overlooked the roof to get access.

On the day of the accident, it was the Claimant’s case that the access route via the window was denied to the men by the Defendant because there was a boy asleep in there. Telephone conversations took place with Mr Sniegula who begged the Claimant to use the ladder, even though the Claimant said it was too short. The Claimant’s case was also that the Defendant had gone into the garage at one point and shouted at him that he should use the ladder, pointing to it as she did so. The Defendant did not recall any of these events. She had said that if the ladder had been used it was without her knowledge or permission.

The 2005 Regulations applied in the case of a non-employer to “work by a person under his control, to the extent of his control.” The 1996 Regulations imposed a duty on a non-employer who “controls the way in which the construction work is carried out by a person at work”. To comply with the Regulations “insofar as they relate to matters which are within his control”.

The decision

On the evidence, the Defendant did not assume control over the Claimant in the sense of being able to direct how he carried out his work. She was entitled to and did impose limits on (and thereby control) his access to her property by refusing him entry to the house for the purpose of gaining access to the roof. That was done however in her capacity as an occupier, not as a person controlling the way in which he carried out his work. She had not right to instruct him or direct him in his work, which right belonged at all times to his employer. She would not have had the necessary knowledge or expertise to devise and direct the Claimant in a safe method of carrying out the work and the suggestion that the employer had delegated control to the Defendant was fanciful. The Defendant was in the position that most householders would find themselves in when arranging for household repairs to be carried out. Contractors had been engaged who it was to be hoped would be capable of doing a reasonably competent job and who could be left to get on with it. By setting down areas of the property that could and could not be accessed, the householder was not to be taken to assume control for the contractor’s employees and for the way in which those employees carried out their work. It might be different in a situation where a householder had played an unusually large role in the planning, management and / or execution of the relevant work however.

On the facts, the Defendant owed the Claimant no duty under the 2005 or the 1996 Regulations. The 1998 Regulation contained an important limitation to the effect that the reference in those Regulations to “control” was reference to a person having control in connection with the carrying on of a trade, business or other undertaking, whether for profit or not. Under those circumstances the Defendant could owe no duty under those Regulations either.

As to negligence, leaving aside the question of whether the Defendant would in fact have owed a duty of care to the Claimant not to engage his incompetent employer to carry out work for her, there was no evidence of negligence on the Defendant’s part.

Claim dismissed.

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