Martin Roy King V Richard Farmer (T/A R W Farmer (Builders)) (2004)

QBD (Bristol) (Judge Rutherford) 6/8/2004

Torts - Construction Law - Employment - Personal Injury

Breach Of Statutory Duty : Control : Employment Status : Construction Industry : Personal Injury : Subcontractors : Controlling Way Construction Work Carried Out : Fall From Ladder : Ladder Not Properly "Footed" : Construction (Health, Safety And Welfare) Regulations 1996 : Sch.5para.2(C) Construction (Health, Safety And Welfare) Regulations 1996 : Reg.4(1) Construction (Health, Safety And Welfare) Regulations 1996

The defendant contractor was not liable for the claimant's personal injuries, caused by falling from a ladder, because the defendant was neither the claimant's employer nor did he control the way in which the construction work was carried out by the claimant within the Construction (Health, Safety and Welfare) Regulations 1996 reg.4.

The claimant (K) brought proceedings against the defendant contractor (F) alleging that his personal injuries were caused by F's breach of the Construction (Health, Safety and Welfare) Regulations 1996. K was a painter and decorator in partnership with his father. F obtained the contract to decorate the exterior of a building and instructed K's firm to do the work. The work required scaffolding but no ladder was provided from ground level to the first stage which was common practice to prevent unauthorised access to the scaffolding. K used his own ladder to reach the first stage but fell as he did so.

He was found seriously injured at the foot of the ladder. He had little recollection of what happened. He brought proceedings against F claiming that F had breached his duty under the 1996 Regulations to ensure that the ladder was properly "footed" by placing a second person at its foot to prevent it slipping. K submitted that F had a statutory duty to provide a safe means of accessing the scaffolding under Sch.5 para. 2(c) to the 1996 Regulations because

(1) F was K's employer within reg.4 of the Regulations
(2) alternatively F controlled the work within reg.4

HELD: (1) The courts adopted three possible tests to determine the existence of an employer/employee relationship: the organisational test, the economic reality test, and the "multiple" test which considered all the relevant factors. Applying the organisational test, it was clear that K was not an integral part of F's firm. The economic reality test showed that K was clearly in business on his own account and was making his own profit. The multiple test which took into account the method of payment, the organisation of the work, the provision of tools and materials and the fact that K was in business on his own account led to the conclusion that K was self-employed. The parties themselves regarded the relationship as that of contractor and sub-contractor. The relationship between the parties was not that of employer/employee.

(2) It was clear from reg.4 that a duty could be imposed on a person who was not an employer where that person controlled the work. Although F was in control of the work as the main contractor he was not within the ambit of reg.4 which on its proper interpretation required control in fact of the way in which the work was carried out by the person at work, RONALD KEITH MCCOOK v (1) ALOYSIUS LOBO LONDON SEAFOOD LTD

(3) STANLEY HEADLEY (2002) EWCA Civ 1760, applied. In the instant case K had complete control over the way in which he carried out his work. Accordingly, K's claim failed.The Regulations imposed an equal duty on the parties to ensure a safe system of work and K accepted that he was partly to blame for the accident which occurred as a result of the ladder shifting. The failure to "foot" the ladder was the cause of the accident for which each party had the same duty. An equal apportionment of the blame was the starting point but K took the risk, which would have been obvious to any competent painter and decorator, to use the ladder before it had been properly secured. If the Regulations had applied F would have been liable but K's contributory negligence would have been assessed at 75 per cent.

Judgment for defendant.
Counsel:
For the claimant: David Westcott QC
For the defendant: Simon Freeland QC, Barnabas Branston

Solicitors:
For the claimant: Clarke Willmott (Bristol)
For the defendant: John A Neil (Bristol)
LTL 21/9/2004 (Unreported elsewhere)
Judgment Approved - 10 pages
Document No. AC0106915

Martin Roy King V Richard Farmer (T/A R W Farmer (Builders)) (2004)

QBD (Bristol) (Judge Rutherford) 6/8/2004

Torts - Construction Law - Employment - Personal Injury

Breach Of Statutory Duty : Control : Employment Status : Construction Industry : Personal Injury : Subcontractors : Controlling Way Construction Work Carried Out : Fall From Ladder : Ladder Not Properly "Footed" : Construction (Health, Safety And Welfare) Regulations 1996 : Sch.5para.2(C) Construction (Health, Safety And Welfare) Regulations 1996 : Reg.4(1) Construction (Health, Safety And Welfare) Regulations 1996

The defendant contractor was not liable for the claimant's personal injuries, caused by falling from a ladder, because the defendant was neither the claimant's employer nor did he control the way in which the construction work was carried out by the claimant within the Construction (Health, Safety and Welfare) Regulations 1996 reg.4.

The claimant (K) brought proceedings against the defendant contractor (F) alleging that his personal injuries were caused by F's breach of the Construction (Health, Safety and Welfare) Regulations 1996. K was a painter and decorator in partnership with his father. F obtained the contract to decorate the exterior of a building and instructed K's firm to do the work. The work required scaffolding but no ladder was provided from ground level to the first stage which was common practice to prevent unauthorised access to the scaffolding. K used his own ladder to reach the first stage but fell as he did so.

He was found seriously injured at the foot of the ladder. He had little recollection of what happened. He brought proceedings against F claiming that F had breached his duty under the 1996 Regulations to ensure that the ladder was properly "footed" by placing a second person at its foot to prevent it slipping. K submitted that F had a statutory duty to provide a safe means of accessing the scaffolding under Sch.5 para. 2(c) to the 1996 Regulations because

(1) F was K's employer within reg.4 of the Regulations
(2) alternatively F controlled the work within reg.4

HELD: (1) The courts adopted three possible tests to determine the existence of an employer/employee relationship: the organisational test, the economic reality test, and the "multiple" test which considered all the relevant factors. Applying the organisational test, it was clear that K was not an integral part of F's firm. The economic reality test showed that K was clearly in business on his own account and was making his own profit. The multiple test which took into account the method of payment, the organisation of the work, the provision of tools and materials and the fact that K was in business on his own account led to the conclusion that K was self-employed. The parties themselves regarded the relationship as that of contractor and sub-contractor. The relationship between the parties was not that of employer/employee.

(2) It was clear from reg.4 that a duty could be imposed on a person who was not an employer where that person controlled the work. Although F was in control of the work as the main contractor he was not within the ambit of reg.4 which on its proper interpretation required control in fact of the way in which the work was carried out by the person at work, RONALD KEITH MCCOOK v (1) ALOYSIUS LOBO LONDON SEAFOOD LTD

(3) STANLEY HEADLEY (2002) EWCA Civ 1760, applied. In the instant case K had complete control over the way in which he carried out his work. Accordingly, K's claim failed.The Regulations imposed an equal duty on the parties to ensure a safe system of work and K accepted that he was partly to blame for the accident which occurred as a result of the ladder shifting. The failure to "foot" the ladder was the cause of the accident for which each party had the same duty. An equal apportionment of the blame was the starting point but K took the risk, which would have been obvious to any competent painter and decorator, to use the ladder before it had been properly secured. If the Regulations had applied F would have been liable but K's contributory negligence would have been assessed at 75 per cent.

Judgment for defendant.
Counsel:
For the claimant: David Westcott QC
For the defendant: Simon Freeland QC, Barnabas Branston

Solicitors:
For the claimant: Clarke Willmott (Bristol)
For the defendant: John A Neil (Bristol)
LTL 21/9/2004 (Unreported elsewhere)
Judgment Approved - 10 pages
Document No. AC0106915