Building Accident Claim

Terence Michael Clark V (1) Hosier & Dickinson Ltd (2) Method & Madness (2003)

Whilst the appellant was liable for some of the blame for injuries sustained by the claimant, it did not match that of the respondent and accordingly the judge's apportionment of equal liability was substituted for one of two thirds to one third.

Personal Injury - Negligence

CA (Kennedy LJ, Jacob J) 14/10/2003

LTL 14/10/2003 EXTEMPORE (Unreported elsewhere)

Document No.: AC9900560

Appeal by the second defendant ('M') from the decision of HH Judge Caitlin sitting in the Reading County Court on 2 April 2003, finding both defendants equally liable for injuries sustained by the claimant ('C'). The accident which caused the injuries to C occurred on premises owned and occupied by M. The first defendant ('H') had contracted with M to carry out building works at the premises, during which a sub-contractor engaged by H had unearthed a mains electricity cable. The cable was found near the entrance to the premises where M had agreed with C for the installation of entrance gates.

The gates were to be installed by C at the completion of the building works. The cable was brought to the attention of M's general manager, who, having no knowledge of construction, left the matter to be dealt with by the sub-contractor, and was told that the cable was to be re-directed and covered.

A plan was subsequently drawn up which stated that the cable had been re-buried 250 mm from the surface. On the strength of that plan, C set about drilling into the ground at the entrance to the premises in order to hang the gates. He drilled less than 250 mm and struck the cable causing him injuries. It was clear that the cable was not where C was lead to believe it to have been from the plan. Once the judge had found that H was liable for the re-laying of the cable, an issue arose as to the proportion to which each defendant was liable for the injuries sustained by C. The judge found each defendant to have been equally liable.

This was M's appeal from that decision on the grounds that, whilst M had to bear some responsibility since it had been informed that the cable was there and in essence did not trust the sub-contractor to have been competent, the degree of blameworthiness of H as contractor was of a greater degree to that of M, and accordingly M sought to overturn the judge's apportionment to one of two thirds against H.

HELD: (1) The apportionment of blame applied by the judge was plainly wrong. The reality was that H was engaged as contractor to carry out a building project and, under the contract between M and H, an architect was appointed for H to consult if there were any problems or queries. The unearthing of the cable was not an unexpected hazard.

It was a hazard that was inherent in a project of the nature carried out. H should have ensured that when a cable or service of the nature unearthed was exposed, those who had exposed it knew either what to do or who to consult. Accordingly, there should have been in place either proper supervision or the ability for the person who exposed the cable to have contacted the architect. By failing to provide such a process in the instant case H was in breach of contract, and was negligent and in breach of its common law duty of care.

(2) The sub-contractor purported to have dealt with the matter competently, however he re-buried the cable too near the surface and stated it to have been in the wrong place. It was he who had created the hazard.

(3) M did have misgivings about the sub-contractor's competence and on that basis should have done more. However, M's blameworthiness did not match that of H and accordingly H's liability apportioned to two thirds.

Appeal allowed.

Graeme McPherson instructed by Weightman Vizards appeared for M. Peter Freeman instructed by Berrymans Lace Mawer appeared for H.

LTL 14/10/2003 EXTEMPORE (Unreported elsewhere)