Lewin v Gray

Negligence – Occupier’s liability – Common law duty of care – Claimant builder claiming damages for personal injuries suffered when he fell through roof of barn while installing guttering – Whether defendant in breach of obligations imposed by Occupiers Liability Act 1957 – Whether breach of health and safety regulations giving rise to action for breach of common law duty of care – Claim dismissed The claimant was a self-employed builder. His work included the performance of roofing and guttering projects. The defendant was a self-employed farmer. He engaged the claimant to install guttering to the roof of a barn which had previously housed cattle. The roof of the barn was fragile, which was known to both parties.    Neither the claimant nor the defendant had been aware of the existence of the Construction (Design and Management) Regulations 2015 which required the claimant to prepare a construction phase plan and the defendant to ensure that such a plan had been drawn up before works commenced. Such ignorance did not provide a defence to any breach of relevant obligation imposed by the 2015 Regulations and there was no doubt that both the claimant and the defendant did not comply with obligations imposed upon them by those regulations.  On 18 January 2018, the claimant was working at height upon the roof when he lost his balance and fell through the roof. He landed on the floor of the barn and sustained catastrophic injuries which rendered him paraplegic. The claimant alleged that the defendant was at least partially to blame for the accident. He brought a claim in negligence, but included allegations of breaches of obligations imposed by the Occupiers Liability Act 1957 and the 2015 Regulations. Liability was ordered to be tried as a preliminary issue. The central question was whether the failure by the defendant to comply with such obligations gave rise to any cause of action by the claimant. Held: The claim was dismissed. (1) The duty owed by the defendant to the claimant under section 2(2) of the Occupiers Liability Act 1957 was: “to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier”. By section 2(3)(b), the circumstances relevant for the present purpose included the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases, an occupier might expect that a person, in the exercise of his calling, would appreciate and guard against any special risks ordinarily incident to it, so far as the occupier left him free to do so. It was reasonable for the defendant to expect that the claimant, for the purposes of the 1957 Act, would appreciate and guard against risks inherent in performing the guttering work. (2) In reality that left the allegation arising from the failure on the part of the defendant to request a construction phase plan from the claimant. The crucial issues were whether the defendant owed a duty of care in tort to ensure that the claimant produced a construction phase plan; and, if so, whether failure to discharge that duty caused or materially contribute to the claimant’s accident. It was common ground that the defendant was a commercial client for the purposes of the 2015 Regulations. As such, he was obliged under regulation 4(5) to ensure that, before the construction phase began, a construction phase plan was drawn up by the claimant contractor. Had the defendant been prosecuted to conviction under regulation 4(5), that conviction could have been adduced to prove that fact. The decision to prosecute was discretionary. Despite the clear breach of regulation 4(5), no prosecution resulted. It might well be that a particular breach of statutory duty constituted “ipso facto” negligence, but breach of regulation 4(5) did not do so in this case. (3) Section 47(2) of the Health and Safety at Work etc Act 1974 provided: “ Breach of a duty imposed by a statutory instrument containing (whether alone or with other provision) health and safety regulations shall not be actionable except to the extent that regulations under this section so provide”. Thus, on the face of it, breach of any of the regulations did not give rise to a cause of action in damages. Whilst each case was fact specific, there was no justification in this case for overriding the clear words of section 47 of the 1974 Act. Absent the obligation placed upon a “client” in the position of the defendant to ensure that a competent contractor produced a phase construction plan, there could be no justification for imposing any such obligation at common law upon a person such as the defendant. The claimant was a “one man band” and so was the defendant. The claimant had worked for the defendant’s father on and at the farm for many years. The defendant had only recently taken over the farm following the death of his father. The claimant was the older and far more experienced man.  It was not just and reasonable to override the express provision in section 47 of the 1974 Act (as amended) that breach of the regulations “shall not be actionable”. Absent other authority to the contrary, there was no civil liability in this case in respect of the facts giving rise to the breach of the regulations. A regulatory requirement for the client of building works to require the contractor to provide a document which was itself a creature of a specific regulation could not be equated with a duty at common law. The claimant had failed to establish that the defendant was liable for the consequences of the accident which had led to such catastrophic consequences for the claimant. (4) If the conclusion on the issue of liability was wrong, it would be necessary to determine the apportionment of liability.  It was rightly conceded that the greater share of responsibility rested with the claimant.   Apportionment was more of an art than a science. Each case was exquisitely fact sensitive. The breach alleged was a failure to ask the claimant to produce a document that the claimant was also under a duty to produce. The contributory fault was to the extent of 75% against the claimant, meaning that if there was any liability against the defendant, it was limited to 25% of the value of the claim. Mathew Snarr (instructed by Irwin Mitchell LLP) appeared for the claimant; Martin Porter KC (instructed by DAC Beachcroft Claims Ltd) appeared for the defendant. Eileen O’Grady, barrister Click here to read a transcript of Lewin v Gray