TREVOR BOYCE v (1) WYATT ENGINEERING [2001] EWCA Civ 692

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM HIGH COURT OF JUSTICE
(HIS HONOUR JUDGE GOSLING)
[2001] EWCA Civ 692Case No NO: B3/2000/2620Venue Royal Courts of Justice, Strand, London WC2, Tuesday, 1st May 2001
Between
TREVOR BOYCE(1) WYATT ENGINEERING(2) S J TAPSELL LIMITED(3) BLACK & VEATCH LIMITED
Before
Lord Justice PotterLord Justice ManceSir Martin NourseMR S KING (instructed by Davies & Partners, 5 Highlands Ct, Cranmore Ave, Solihull B90 4LE) appeared on behalf of the AppellantMR J CAMPBELL (instructed by Buller Jeffries, 36 Bennetts Hill, Birmingham, West Midlands B2 5SN) appeared on behalf of the Second Respondents.MR J PALMER (instructed by Davies Lavery, King Edward Hall, 135a New Street, Birmingham B2 4QQ) appeared on behalf of the Third RespondentsDate 1 May 2001

LORD JUSTICE POTTER:

[1]I will ask Lord Justice Mance to give the first judgment.

LORD JUSTICE MANCE: In this case the claimant suffered a serious ankle injury as a result of climbing a ladder propped inside a large and at the time empty sewage tank. The tank was about 13 foot deep with its bottom sloping down from its sides to its centre. The ladder slipped and the claimant had to jump or fell.

[3]The claimant sued three defendants. For present purposes it is common ground that he can be treated as having been engaged as a steel erector by the second defendants, and he sued them as his employers for breach of statutory duty and negligence. It is also common ground that the third defendants can be regarded as occupiers, and they were sued for breach of their responsibilities under the Occupiers Liability Act 1957. The judge heard evidence from the claimant and a fellow worker, and then, without putting any of the defendants to their election, heard submissions and came to the conclusion that the claims failed against all three defendants. His ruling is not challenged in respect to the first defendants who at the time, it was suggested, were possible employers, and this appeal relates solely to the other two defendants.[4]The course taken by the judge of deciding the case following the hearing of the claimant's evidence without putting the defendants to their election is one which calls, on any view, for considerable caution. I mention two particular considerations. First, where a defendant is put to his election, that is the end of the matter as regards evidence. The judge will not hear any further evidence which might give cause to reconsider findings made on the basis of the claimant's case alone. The case either fails or succeeds, even on appeal. But, where no such election is called for, the judge is required to make up his mind as to facts on the basis of one side's case, and then, if he is against the defendant, to hear further evidence and to retain and apply an open mind in relation to all the facts at the end of the trial. That is an inherently difficult exercise. Hence the difference in normal practice between criminal cases (where submissions of no case are common but are determined by a different test and by the judge rather than the jury) and civil cases (where the practice has been for the judge to put the defendant to his election).[5]In this respect, despite the objectives of the new Civil Procedure Code and the broad powers of court management which it contains, there remains force, in my view, in the general observation made in this Court in Alexander v Rayson [1936] 1 KB 169 at 178 that it is not right that the judge of fact should be asked to express any opinion upon the evidence until the evidence is completed. There may be some cases, probably rare, in which nothing in the defendant's evidence could affect the view taken about the claimant's evidence or case, but this is not one of them, and care would be required in identifying them.[6]Secondly, there is another consideration which is independent and general. If no election is extracted, then there is the risk, as here, that if the claim is dismissed, there may be a successful appeal against the judge's view of the merits, and the matter may then have to be remitted, quite likely to a different judge, for a complete retrial. That may waste far more money than might have been saved by hearing the defendant's evidence at the first trial.[7]The claimant was a very experienced steel erector. He had done work for the second defendants for many years. He was working for them in another part of the country, when he was asked at short notice to work over a weekend on a sewage tank site in Twickenham. The site belonged to the Thames Water Authority who had engaged the third defendants as main contractors to do extensive work on the sewage tanks in it. The third defendants had engaged, amongst others it appears, the second defendants as sub-contractors for steel work inside the tanks. The second defendants acquired many, if not all, of their employees through the first defendants, whose Mr Wyatt acted commonly as a senior on-site steel erector. Over this weekend, Mr Wyatt could not work, and he or the second defendants therefore asked the claimant to work instead.[8]The claimant arrived on the Friday afternoon. He was given by the third defendants an introduction or "induction" to the site and a general safety talk (not, so far as the evidence went, directed to sewage tanks or ladders in particular). He did some work from a scaffold provided for the purpose that afternoon. On the Saturday morning he again attended using, he said, the same scaffold to start work. He said that he received a mobile telephone request from a representative of the second defendants to take some measurements in another part of this large tank, that he descended into the bottom of the tank to do so and that in order to communicate the result, he needed better reception; he was now on the other side of the tank and looking around he saw for the first time there a steel ladder, without special feet but positioned against the tank side in a way which indicated to him that it was there for use. It was also resting on a scaffold board. He went up that ladder, and as he approached the top of it, it slipped and threw him off.[9]During the course of his evidence, the claimant accepted that he could (by stepping back and looking) and should have checked whether the ladder was properly tied at the top (which it was not) or securely footed, which, despite the scaffold board and no doubt probably in part at least because of the sloping tank floor, it was not as events proved. Indeed, he could, on the face of it, have asked his nearby colleague to stand on the foot of the ladder.[10]The judge accepted that the second defendants were to be regarded as employers and the third defendants as occupiers. He drew attention in the course of his judgment, relatively short on this aspect, to the difficulty in deciding who had put the ladder in place and whether either defendant should have known of its presence. However, his real reason for dismissing the case against both defendants, as I read his judgment, was purely and simply his conclusion that the claimant was author of his own misfortune. In this respect, I think that the judge, in the course of his judgment, put the claimant's own evidence too high when the judge said at page 6:
"He agreed in cross-examination that he failed to follow the basic safety rules for ascending a ladder."
[11]As counsel pointed out in final submissions to the judge, and again before us, what the claimant actually said was somewhat different. As appears in the transcript of the first day's evidence at pages 37 and 38, it included the following:
"Q. In your experience, or in your view, is it a suitable ladder? A. It was a ladder that they would use on various occasions to give you access and exit, up scaffold, down scaffold, out of tanks, out of pits. Q. Tell me what the golden rules are about using ladders. A. I have no golden rule, sir. Q. You do not have a golden rule? How about having a ladder footed? A. If it's necessary, then that would be the case. Q. This one was not footed, was it? JUDGE GOSLING: (To the witness) What does 'footed' mean? A. It's when -- If I were to put a ladder up the wall, I would get somebody to put their foot at the bottom of it."
[12]And then he was asked about the top of the ladder and it was put to him if it had not been footed then it should be tied off and he said:
"Q. Did you know whether or not it was tied off? A. No, sir."
[13]And then

the judge asked:

"JUDGE GOSLING: Did it need to be footed, so far as you could see? A. As far as I was concerned, no, sir. Then counsel asked: "
Why not? A. I thought it was safe. Q. How did you think it was so, and why did you think it was so? A. Because it was in a position in the tank, put there by somebody else and left in that position with a scaffolding board underneath it, to stop it from slipping, which gave me the impression it was safe. JUDGE GOSLING: Did it look as though it had been positioned and not just leant against the wall? A. Definitely, sir. Then by counsel:
"You had not positioned it, had you not? A. That's correct. Q. You did not know, in fact, whether it was safe or not, did you? A. That's correct. Q. The scaffold board at the bottom of it was on a slope, the same slope as the gradient on the tank from the tank from the outside wall to the centre, was it not? A. That's right, yes."
[14]The judge in his judgment also failed to address the question why the ladder was there, mentioned in that extract from the evidence, or what impression as to its purpose a worker like the claimant might acquire.[15]Taking the case against the second defendants, in addition to the points I have already mentioned, the judge, still more fundamentally in my view, failed to address any of the allegations of breach of statutory duty which had been pleaded. It is common ground that the Construction (Health Safety & Welfare) Regulations 1996 applied to the second defendants as employers, and it was alleged, first, that they failed to ensure that there was suitable and sufficient safe access to and egress from the plaintiff's place of work. That is a reference to regulation 5 (1):
"There shall, so far as is reasonably practicable, be suitable and sufficient safe access to and egress from every place of work and to any other place provided for the use of any person while at work..."
[16]Secondly, it was alleged that the second defendants failed to ensure that the claimant's place of work was made and kept safe for him without risks to health to the claimant, contrary to regulation 5(2); failed to ensure that suitable and sufficient steps were taken to ensure that the claimant did not gain access to a place which did not comply with the requirements of paragraphs (1) and (2), contrary to regulation 5(3); failed to take suitable and sufficient steps to prevent him falling, contrary to regulation 6(1); and failed to ensure that the ladder from which the claimant fell had complied with the provisions of Schedule 5, contrary to regulation 6(6)."[17]Regulation 6(5) is not expressly pleaded but it provides:
"A ladder shall not be used as, or as a means of access to or egress from, a place of work unless it is reasonable to do so having regard to - (a) the nature of the work being carried out and its duration; and (b) the risks to the safety to any person arising from the use of the ladder. (6) Where a ladder is used pursuant to paragraph (5) - (a) it shall comply with the provisions of Schedule 5..."
[18]The provisions of Schedule 5 1. say:
"Any surface upon which a ladder rests shall be stable, level and firm, of sufficient strength and of suitable composition safely to support the ladder and any load intended to be placed on it. 2. A ladder shall -... (b) be so erected as to ensure that it does not become displaced; and (c) where it is of a length when used of 3 metres or more, be secured to the extent that it is practicable to so and where it is not practicable to secure the ladder a person shall be positioned at the foot of the ladder to prevent it slipping at all times when it is being used."
[19]Counsel pointed out that there had been no pleas specifically referring to paragraph 6(5) of the Regulations. However if there is any relevance in that omission (and for my part I think it most unlikely that there is) I have little doubt, as counsel effectively conceded, that it would have been rectified at trial by the judge allowing an appropriate amendment.[20]On the face of it, the second defendants were, on the evidence which the claimant was able to call, vulnerable to findings of breach of these absolute and non-delegable statutory duties in a number of respects. The regulations were, and are, self-evidently designed to protect employees against risks of using unsafe ladders even though such risks may be ones which employees with reasonable care might anyway avoid. In other words, they cater for the day-to-day fact that employees do quite often fail to look after their own interests, and are therefore themselves vulnerable to findings of contributory negligence. The need for such statutory protection is particularly obvious in respect to ladders. Hence the detailed provisions relating to them.[21]Here the claimant says that he did not put in place this ladder but on his case found it there apparently ready for use. His failure, if any, lay in not checking its suitability. Those facts raise a case of breach of statutory duty as against the second defendants which it was incumbent upon the judge to address. I find it hard in the circumstances to see how causation can be excluded, whatever degree of contributory negligence may be attributed to the claimant.[22]Counsel for the second defendants seeks to bring this case within the class of case in which courts have rejected claims because a plaintiff was himself responsible for such breach of statutory duty as occurred, and the risks involved in the breach were obvious and did not require any warning or repetition of any warning by the relevant defendants. We were referred to three particular cases: Boyle v Kodak Ltd [1969] 2 All ER 439 HL, Baker v T Clarke (Leeds) Ltd [1992] 1 PIQR 262 and Stephenson v Whittal Builders unreported CA 10th April 1981. In each case the claimant by his conduct created the relevant breach of statutory duty. In Boyle he succeeded against his employers because the risk involved was so small that anyone would have thought it worth taking. The breach of statutory duty nonetheless remained as a cause of action. The House of Lords in its reasoning distinguished cases of obvious risk. In Baker and in Stephenson the risks were obvious and well understood and the claims failed.[23]Counsel seeks to bring the facts of the present case within the latter category of obvious and well-understood risk knowingly taken by a claimant. But the evidence called by the claimant does not seem to me to justify this submission. First, as I have said, the judge overstated the extent to which the claimant accepted that he knew of the risk and the extent to which it was obvious. Second, and this is an associated and in my judgment most important point, the claimant did not create the risk. The breaches involved the very presence of the ladder in the tank in the condition it was. The claimant's fault was subsequent and separate. He came across the ladder; he thought it safe, even though maybe on a superficial view, and he used it. He may have been, indeed on the face of it was, negligent, but I think that it would be wrong on his evidence to treat him as in the same category as the claimants in Baker or in Stephenson.[24]I turn to the third defendants. On the claimant's account, and without prejudging anything which may be said at any susequent trial when all the evidence will have to be called again, the ladder must have been there since the Friday. The third defendants were treated by the judge as occupiers, or at least joint occupiers, and so they had the duty to see that visitors would be reasonably safe as stated in the Occupiers Liability Act 1957, section 2(1). Subsection (2) and subsection (4) further provides:
"In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example)... (b) where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done."
[25]Here, prior to any more detailed explanation from the defendants' side, I think that a ladder, which could be taken to be positioned for use, would prima facie be something that it would be incumbent upon an occupier to observe. This is particularly so bearing in mind the evidence that the claimant was able to give about the third defendants' continuing overall role in relation to the site and safety, as witness their induction and safety talk.[26]The claimant was able to say in evidence that he believed the ladder had been placed, as it was, by the third defendants or by sub-contractors acting on the third defendants' instructions. Further, there was documentation suggesting that it had come from a scaffold dismounted within the tank. That was disclosed very late by the third defendants and does not appear to have been referred to expressly before the judge in submissions, perhaps because it was disclosed so late. It would no doubt be put before the judge on any future trial. If what it is said in that documentation is correct, one would expect the third defendants to have been aware of the ladder's presence, and they might have been expected to do a site check after their sub-contractor's work had been completed on the Friday. In any event, as I have said, it appears that they retained an overall safety role. The documentation further suggests that they retained roles in respect to different parts of the works, which they delegated to various different sub-contractors. Even without the documentation that also appears to be the gist of what the claimant says his belief was in evidence.[27]Finally, on no view could the claimant on his case be expected to explain how the ladder got where it was and, even if there was some room for doubt about the third defendant's precise role, involvement or knowledge in relation to the ladder, I would have expected the judge either to resolve it at a half way stage in the claimant's favour or to put the third defendants to their election.[28]Before us some suggestion was made that there was a breach of statutory duty on the part of the third defendants, but that is not, on any view, a straightforward or easy suggestion, and it transpired that it was not even one that was raised below; it had not been pleaded.[29]We must therefore approach the case against the third defendants by reference to the Occupiers Liability Act. Approaching it in that way it is correct that the position as against them is somewhat different to the position as against the second defendants. There are possible differences between liability (including causation) in respect of breach of an absolute non-delegable statutory duty and in respect of breach of the common duty of care. Bearing in mind those differences I would still conclude that there was a sufficient prima facie case on both liability and causation as against both the second defendants and the third defendants.[30]For those reasons I would, for my part, allow this appeal and remit this case for retrial before a different judge.

SIR MARTIN NOURSE: I agree that this appeal must be allowed for the reasons given by Lord Justice Mance.

[32]The essence of the judge's decision, as expressed in the penultimate sentence of his judgment, was that the accident was caused by the claimant's own failure to take obvious precautions. In the circumstances and on the facts referred to by my Lord, I cannot agree either that the suggested precautions were obvious or that the risk the claimant took was obvious in the sense that it should result in his being held wholly responsible for the consequences of his unfortunate accident.

LORD JUSTICE POTTER: I also agree. In this case, on the basis of the claimant's evidence which the judge accepted for the purposes of his decision, and in the absence of positive evidence from the defendants establishing the contrary, the following was clear on the balance of probabilities. The claimant fell from a ladder which had previously been placed in position and/or allowed to remain in position as an apparent method of access to and from the tank, by servants or agents of either the second defendant or the third defendant. If and insofar as the judge's decision depended on the failure of the claimant to identify who had so placed the ladder, it seems clear to me that he was in error.

[34]The second defendant was plainly the prime candidate. It was in overall control of the work on site as the main sub-contractor of the third defendant; it was also found by the judge to be in the position of the claimant's employer. As such, the second defendant would in principle be liable to the claimant at least for breach of statutory duty under the Construction (Health Safety & Welfare) Regulations 1996, and in particular regulations 6(1) and 6(5) and Schedule 5 to those regulations, subject only to a defence of contributory negligence.[35]As against the third defendant, there was an argument that it was in breach of the occupier's common duty of care owed is those present on the premises under the 1957 Act, not least because it was plain that the third defendant regarded itself as in overall charge of safety on the site, having through one of its employees given the claimant his safety instructions when he first arrived at the site.[36]If such breaches of statutory duty might procedurally have been established against either or both of the second and third defendants, it was wrong for the judge to come to any conclusion as to whether both or either were liable without hearing the defendants' evidence (if they proposed to call any), unless the evidence of the claimant himself disclosed that he was bound to fail, in particular by failing to establish that the defendants' breaches of duty were causative of the accident.[37]It was indeed by this route that the judge sought to dispose of the matter. He never proceeded to consider whether breaches of duty could in fact be established. He simply held that, even if they could be established, the claimant was entirely the author of his own misfortune, his own negligence having been the sole effective cause of the accident. Again, it seems to me that the judge was in error. It can be, on rare occasions, be established that, despite the negligence or breach of statutory duty of an employer or occupier, the claimant's own contributory negligence is so clear and so serious as to amount to one hundred percent, or that put in terms of causation, the claimant's lack of leave amounted to an overwhelming and separate cause, in relation to which the defendants' breach operated only as the context, rather than as a partial cause, of the accident.[38]Like Lord Justice Mance, I do not consider that this was such a case, and I would therefore allow the appeal and order a retrial before a different judge. (Appeal allowed; claimant to have costs of appeal; order for costs in favour of the second and third defendants below should be reversed, to the extent that the claimant should have costs of hearing below)

Cited in 11 later judgments

and 2 more of the most senior