McGARVEY v EVE NCI LTD [2002] EWCA Civ 374

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM ORDER OF HIS HONOUR JUDGE LIGHTFOOT
(Leeds County Court)
[2002] EWCA Civ 374Case No No B3/2001/0986Venue Royal Courts of Justice, Strand, London WC2, Tuesday, 26th February 2002
Between
McGARVEYClaimantEVE NCI LTDFirstDefendant/RespondentN G BAILEY & CO LTDSecondDefendant/Appellant
Before
Lord Justice MantellLord Justice TuckeyMR STUART BROWN QC (Instructed by Beachcroft Wansbroughs of Leeds) appeared on behalf of the AppellantMR A BERESFORD (Instructed by DLA of Sheffield) appeared on behalf of the RespondentMR D de JEHAN (Instructed by Hutchinson Buchanan of Ripon, Yorkshire) appeared on behalf of the ClaimantDate 26 February 2002
[1]THE VICE-CHANCELLOR: Lord Justice Tuckey will give the first judgment.

LORD JUSTICE TUCKEY: This is an appeal from the judgment of His Honour Judge Lightfoot given in Leeds County Court on 9th April 2001 in this personal injury claim. The claimant was seriously injured when he fell from a ladder while working on the construction of a new warehouse in Pontefract. The first defendant company, his employer, was sub-contracted by the second defendant. The judge found the first defendant (the respondent) two-thirds to blame and the second defendant (the appellant) one-third to blame for the accident. The appellant says it was not to blame at all because it assumed no responsibility for the claimant's safety.

[3]The claimant was 20 at the time of the accident in February 1999. He had been employed by the respondent as a labourer for about a month. The appellant was the electrical contractor for the warehouse, but it employed the respondent as a specialist sub-contractor to do some of the work which included running cables along the purlins supporting the roof of the warehouse. Some of the cables laid in this way came loose and needed to be fixed to the purlins by means of clips. The claimant was assigned by his foreman to this task and reported to the appellant's foreman, Mr Learoyd, at the warehouse.[4]Mr Learoyd provided the claimant with clips and pointed out a ladder for him to use to do the work. The judge found that Mr Learoyd had told the claimant to use this ladder and had then left him to get on and do the work on his own.[5]The ladder was nearly five metres long. The claimant fell from the top of it when it slipped while he was trying to clip a cable to a purlin in the roof. The ladder was not lashed at the top or footed and the claimant was not wearing a safety harness. It transpired that the respondent had not given the claimant any safety training in the use of ladders or other means of working safely at heights. For this reason neither defendant pursued allegations of contributory negligence against him at trial.[6]Based on the evidence of the appellant's site safety officer Mr Bennett, the judge found that use of the ladder for this work was "inappropriate and dangerous". The ladder was too long even if it had been lashed or footed because it had to be set at too acute an angle for safety. The claimant was having to work in a confined space at the top of the ladder, using both hands. The appellant's witnesses -including Mr Learoyd - said that the claimant should have used an "A" frame ladder or a scaffold tower, both of which were available on the site and would have provided him with a safe working platform.[7]The judge rejected the respondent's defence that the claimant had been "lent" to the appellant in circumstances which relieved them of all responsibility for his safety. This inevitably meant that they were found liable both for breach of statutory duty and negligence. Their failure to give the claimant any safety training was, as the judge found, the major cause of the accident.[8]But the judge found that the appellant was also negligent. He succinctly summarised his reasons for this finding by saying:
" ..... a wholly inappropriate ladder was given to him, and he was told, in effect, to get on with it. No thought was given to this at all, and here was a young man being sent up a ladder to work at a height with no apparent means of support, and on a ladder that was unsuitable."
[9]Mr Stuart Brown QC, for the appellant, says that this finding was wrong. It took no responsibility for the claimant's safety. He was not employed or supervised by the appellant and it had no knowledge of his experience, training or aptitude. It was entitled to assume that the claimant, as an employee of specialist contractors, would know how to use ladders safely or obtain assistance or other equipment if he needed it. There was nothing wrong with the ladder as such and the judge's conclusion that it could not be used to do this job safely was not justified by the evidence. The sole cause of the accident was the respondent's failure to give any safety training to the claimant.[10]Mr Stuart Brown supported these submissions by reference to this court's decision in Makepeace v Evans Brothers (Reading ) [2001] ICR 241. The judge distinguished this case, but Mr Stuart Brown argues that he was wrong to do so.[11]In Makepeace an experienced painter employed by sub-contractors had fallen from a scaffold tower provided by the main contractors because he had incorrectly erected or and mis-used it. The trial judge acquitted the main contractor of negligence because he held that their duty of care did not require them to ensure that the sub-contractor's men were able to erect and use the tower safely. It was an ordinary piece of equipment, commonly used on building sites, and the responsibility for ensuring that those of their employees who used it were able to do so in safety rested on the sub-contractors alone. This court dismissed the appeal against that finding. Lord Justice Mantell, giving the leading judgment with which Lord Justice Nourse agreed, accepted the judge's approach. That approach derived support from a number of cases to which he referred. It also derives support from the passages in Munkman to which we have been referred by Mr Stuart Brown this morning. This shows that there is no general duty on a main contractor or occupier to ensure the safety of someone else's employees unless there has been something in the nature of an assumption of responsibility. As the court made clear in Makepeace , there are cases where a main contractor or occupier will be shown to have assumed some responsibility. Each case must therefore depend upon its own facts.[12]Here, the judge distinguished Makepeace because in that case an experienced painter was offered the use of a tower suitable for work he had to do. Whereas in this case "the young [claimant] was told to use a ladder which could not be used safely". Of the ladder he said:
" ..... it was too long. It couldn't be used for this purpose. It was something that Le[a]royd should have known, and [the claimant] had, clearly, been left in his presence to take instructions from him, and he told him to use that ladder ..... Even if lashed or footed, this ladder was not suitable or safe for this work, and it was perfectly clear to Le[a]royd, or it should have been, that the claimant was to work alone."
[13]So there was a very clear and valid distinction between the facts of this case and the facts in Makepeace and I can see no basis for criticising the judge for making it. There is nothing in the decision in Makepeace which compelled him to reach the conclusion that the appellant was not in any way to blame for this accident.[14]If the ladder which the claimant was told to use could have been used safely to do this work the appellant would be on much stronger ground. This, it seems to me, is the crux of the matter. Unless Mr Stuart Brown can successfully challenge the judge's primary finding of fact that the ladder could not have been used safely to do this work his appeal does not get off the ground. But Mr Stuart Brown at first disclaimed any ambition to do this, but when pressed by the court he had to accept that this is in fact what he was trying to do both as to the suitability of the ladder and that Mr Learoyd knew that the appellant was to work from the ladder on his own.[15]Having looked at the evidence of Mr Bennett the safety officer, it seems to me that there was ample evidence to support the judge's finding that this ladder could not have been used safely at all for the work which Mr Learoyd knew the claimant was to do. There is no basis either for challenging the judge's finding that Mr Learoyd knew that the claimant would be working alone. Even if this ladder had been lashed or footed and the claimant had been working in a safety harness, it was still not a suitable ladder on which to carry out this work because at least for part of the work it could not be set at a safe angle. Mr Learoyd obviously assumed some responsibility for the claimant's safety when he instructed him to use the ladder in such circumstances. It is onething to provide someone with a piece of equipment whichis suitable it used properly; it is quite another to provide someone with a piece of equipment which is unsafe however it is used.[16]For these reasons I do not think the judge's conclusion can be faulted. There is no challenge to his apportionment of responsibility between the appellant and the respondent. I would therefore dismiss the appeal.

LORD JUSTICE MANTELL: I agree.

[18]THE VICE CHANCELLOR: I also agree.

Cited in 1 later judgment