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Kmiecic v Isaacs, Court of Appeal, 22 February 2011

20 April 2011
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 Judge dismissed the claim.

The Claimant Appealed.

The decision

The Appeal concerned the meaning of the Construction (Health Safety and Welfare) Regulations1996 and the Work At Height Regulations 2005. The 1996 Regulations placed the primary duty upon employers but Regulation 4(2) placed a duty on every person who “controls the way in which any construction work is carried out by a person at work”. The 2005 Regulations imposed a duty (by Regulation 3(2)) on an employer in relation to work by an employee of his or by any other person under his control to the extent of his control. The Claimants were enacted to give effect to European Union obligations and had to be construed in conformity with those Regulations so far as possible. There was however nothing within the Framework Directive or within the Implementing Directive 92/57 of 24th June 1992 which required a member State to impose obligations on occupiers who did not control the way in which the work was carried out. On the contrary, if such an obligation were to be imposed on every occupier merely because that person was an occupier, the result would be chaos. It was absurd to think by requiring anyone who asked for repair work in their home to assume responsibilities under the Regulations, the safety or workmen would be improved.

It was true that an aspect of the way in which work was carried out was controlled over the means of access to and egress from the place of work. It did not follow however that when a householder exercised his or her rights as occupier to dictate what access to work she would permit in her home, that she was thereby obliged to ensure the safety of access to or egress from the place of work. Control over construction work necessarily involved control over access, but control over access exercised by an occupier of premises did not of itself connote control over construction work within the meaning of the Regulations.

The same reasoning applied to the 2005 Regulations. An occupier might have persons under his control who are not in his employ. However, neither Mr Kmiecic nor his colleague came under Mrs Isaac’s control merely because she forbad them access to the roof through her son’s bedroom window.

Appeal 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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