EH Humphries (Norton) Ltd. Thistle Hotels Plc v Fire Alarm Fabrication Services Ltd. [2006] EWCA Civ 1496

Case No B3 2006/0590/QBENF[2006] EWCA Civ 1496
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE HIGH COURT OF JUSTICE QUEENS'S BENCH DIVISION
HIS HONOUR JUDGE MARR-JOHNSON SITTING
AS A DEPUTY HIGH COURT JUDGE
HQ04X00015
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Friday 10 th November 2006
Before
LORD JUSTICE MAYLORD JUSTICE GAGELADY JUSTICE HALLETT
Between
Fire Alarm Fabrication Services LtdRespondent
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Martin Porter QC (instructed by Beachcroft LLP) for Appellant 1Colin McCaul QC (instructed by DLA Piper Rudnick Gray Cary) for Appellant 2Derek Sweeting QC and Steven Ford instructed by (Messrs Vizards Wyeth) for Respondent
Judgment
[1]On 9 January 2001, Ian Gray, a fire alarm installation engineer, employed by Fire Alarm Fabrication Services Ltd (FAFS) fell through a skylight window in the roof of a building at Victoria Station. As a result of injuries sustained in the fall he died. His widow, Barbara Gray, brought a claim under the Fatal Accidents Act 1976 and, as administratrix of his estate, a claim for damages for negligence and breach of statutory duty arising out of his death.[2]The claims were made against FAFS, the first defendant, E H Humphries (Norton) Ltd (Humphries), the second defendant and Thistle Hotels Ltd (Thistle), the third defendant.[3]Barbara Gray’s claims were settled by an admission of liability by FAFS and a consent judgment against it for £400,000 together with costs entered on 6 December 2005. Mrs Gray discontinued claims against Humphries and Thistle. FAFS was left to pursue Part 20 proceedings against Humphries and Thistle for contribution to the judgment sum paid by FAFS to Mrs Gray.[4]By a judgment given on 3 March 2006 His Honour Judge Marr-Johnson found both Humphries and Thistle negligent in respects causative of the accident and ordered each to contribute to the damages for which FAFS was liable. The judge assessed the responsibility of each of these three parties on apportionment as 50% to FAFS, 30% to Humphries and 20% to Thistle. Humphries and Thistle appeal against the orders for contribution made by the judge, permission having been refused by the judge but granted by Scott Baker LJ.

The Facts

[5]The facts relating to this tragic accident can be shortly stated and in the main are not in dispute. The judge described FAFS as a small company specialising in the installation and maintenance of commercial fire alarm systems. The deceased was one of four shareholders of the company and an experienced installation engineer. He and his work colleagues had some previous experience of working at the premises where the accident occurred. The premises were the Grosvenor Hotel, Victoria Station, London. They were occupied by Thistle as a hotel, but did not include flat roof adjacent to the rear wall of the premises. The latter were owned and occupied by Railtrack plc.[6]Humphries is a company specialising in electrical contracting.[7]In or about 2000 Thistle decided that the hotel required refurbishment. It appointed Humphries as the main contractor for electrical work but required Humphries to appoint FAFS as sub-contractors for the installation of a new fire alarm system. Humphries sub-contracted that work to FAFS by an agreement dated 24 November 2000. The value of the work was £141,750 less 5% retained by Humphries.[8]On Monday 8 January 2001 FAFS started work. At that stage the route for the new electrical cables for the fire alarm system had not been decided. There were three options: i) To route the cables externally along the route of the existing cabling; ii) To route the cables internally around ceilings and cornices; iii) To route the cables internally but boxing them in.[9]In the event, a decision was made by FAFS to route the cables externally. This involved gaining access to the roof and routing the cabling along an existing cable tray fixed to the external wall. Access to the roof was gained through an open window. From there it was possible to walk along a walkway with the wall on the outside of the walkway and the roof on the inside.[10]There were no eye witnesses to the accident. The judge found that in walking along the roof in this somewhat confined space the deceased must have stumbled or slipped so projecting himself head-first through a plate glass window on his right-hand side. The judge found that panels of the window were much obscured with dirt but it was safe to assume that the deceased did not walk on them.[11]The deceased fell into an office occupied by Railtrack and onto a metal filing cabinet. The force of the collision between his head and the filing cabinet caused severe injuries from which he died.[12]It was the case for Humphries and Thistle that FAFS had been instructed not to route the cable externally. Witnesses for each of these two defendants gave evidence that such instructions had been given to Mr John Butler of FAFS at a meeting on 12 December 2000. Mr Butler denied that any such instructions had been given to him. The judge preferred Mr Butler’s evidence to the evidence of other witnesses. In his judgment he said (see para 28):
“In the result I have reached the conclusion that although stray remarks may possibly have been made by various persons at different times during the meeting, perhaps as an aside or a casual observation, no one made it clear to Mr Butler that he was not to proceed with the third option of external cabling, and that he left the meeting reasonably under the impression that it was for FAFS to decide which route to pursue. Equally I am not satisfied that Mr Butler told the meeting that the roof was “precarious” or unsafe in some way or that it was brought home to him that any other person considered the roof to be dangerous. I accept his evidence that it was a long time since he had been on the roof himself, and he had no recollection one way or another about the state of the roof at the time of the meeting. What he did know, and what he told the others, was that the line of the existing cable lay along an external length of wall and that it was an option to lay the new cable along the same route as before. In general terms I accept the substance of Mr Butler’s evidence on this topic.”
[13]Part of this finding of fact is challenged by both Humphries and Thistle. The Judge’s findings on liability Humphries[14]The judge having referred to a number of authorities cited to him held that Humphries as main contractors in overall charge of the electrical work owed a duty to take reasonable care for the deceased’s safety. He said (para 32):
“So far as Humphries are concerned, the case against them in essence is that as main electrical contractors in overall charge of the electrical work which needed to be done on site, including installation of the new fire alarm system, they owed Mr Gray as one of the persons who would be directly affected by their decisions a duty at common law to take reasonable care for his safety. The potential existence of such a duty is well established in cases such as Clay (supra) and McArdle vAndmac Roofing Co [1967] 1 ALL ER 583. A more recent example is Davis v Earldene and Others unreported, CA QBENF 98/0242/1. 23 February 1999. In the present case the existence of such a duty is confirmed, and its scope defined, in my judgment by the following considerations: i. The quote for the work which Humphries received from FAFS was for £134,662, and their own quote to Thistle was £148,834. Thus the premium which Humphries were charging for supervising the contract (rounded off) was £14,171. Clearly a substantial degree of supervision was envisaged in return for such a payment. ii. That quote contained the words “we require daily liaison” and an assurance that the work would be carried out “in accordance with the Factories Act”. iii. The order Humphries placed with FAFS on 24 November 2000 requested a method statement, risk assessment and programme of works. It stated “all work to be agreed and carried out with the close liaison with Mr CD Lewis contracts manager”. iv. Mr Lewis told Health and Safety investigators that he was prepared to prevent FAFS from starting on site if risk assessments were not supplied. v. Humphries’ standard terms and conditions provided that FAFS’ work had to be carried out to Humphries satisfaction and in conformity with all reasonable directions by Humphries, and that FAFS must comply with Humphries’ health and safety policy. vi. That policy acknowledged Humphries’ duty to “co-ordinate safety activities between main contractor, sub-contractor and any other individuals who might be working on the same site”
. There was evidence that there were other workmen on the roof at the time when FAFS was carrying out work under the sub-contract. Two men employed by a Railtrack sub-contractor were the first to find the deceased after his accident. i. The quote for the work which Humphries received from FAFS was for £134,662, and their own quote to Thistle was £148,834. Thus the premium which Humphries were charging for supervising the contract (rounded off) was £14,171. Clearly a substantial degree of supervision was envisaged in return for such a payment. ii. That quote contained the words “we require daily liaison” and an assurance that the work would be carried out “in accordance with the Factories Act”. iii. The order Humphries placed with FAFS on 24 November 2000 requested a method statement, risk assessment and programme of works. It stated “all work to be agreed and carried out with the close liaison with Mr CD Lewis contracts manager”. iv. Mr Lewis told Health and Safety investigators that he was prepared to prevent FAFS from starting on site if risk assessments were not supplied. v. Humphries’ standard terms and conditions provided that FAFS’ work had to be carried out to Humphries satisfaction and in conformity with all reasonable directions by Humphries, and that FAFS must comply with Humphries’ health and safety policy. vi. That policy acknowledged Humphries’ duty to “co-ordinate safety activities between main contractor, sub-contractor and any other individuals who might be working on the same site”.[15]The judge went on to describe the facts which led him to conclude that Humphries were in breach of that duty. In summary, he held that one of Humphries’ employees, Carl Lewis, their senior contracts manager, failed to obtain from FAFS either a proper method statement of the work to be carried out or a proper risk assessment. The judge described the risk assessments actually provided by FAFS as “self-evidently insufficient for the purpose”. The risk assessments are in the appeal documents and the judge was plainly correct so to describe them. He criticised Mr Lewis for doing no more than forward them to Thistle. He said that Mr Lewis appeared to be under the impression that any liaison with FAFS or supervision of their activities ought to be carried out by Thistle. He continued (see para 34):
“In my judgment this was a wholly unwarranted assumption on Mr Lewis’s part and, of course, completely the reverse of the true contractual situation. If Mr Lewis had called for a proper risk assessment and method statement from FAFS he would have realised that there was a proposal to carry out work which would entail FAFS’ employees walking on the roof outside the hotel and Humphries, as the main contractor in charge of coordinating safety activities, ought then in my judgment either to have forbidden the work or alternatively have taken energetic steps to ensure that it could be done in safety. If Humphries had taken such action, in all probability Mr Gray’s accident would have been avoided. The matter does not rest there, however, because on my findings Mr Lewis was informed at the meeting on 12 December that Mr Butler was considering the external option for routing the new cable. He therefore had actual knowledge that FAFS were contemplating the possibility of work which would require their employees to go out on the roof. Again, energetic steps should have been taken to prevent that happening, at all events until a safe system for doing the work had been devised.”

Thistle

[16]The basis of the judge’s finding that Thistle was negligent was that it possessed special knowledge which it ought to have passed on. He found that following the meeting on 12 December 2000 Thistle knew that FAFS were contemplating work which would require access to the roof. It also knew that Railtrack did not allow anyone to go onto the roof for any purpose unless it was in accordance with Railtrack’s permit to work system.[17]It was common ground before the judge that a building owner is only liable to carry out some supervision of the activities of an apparently competent contractor or sub-contractor where the building owner has some special knowledge or in special circumstances (see Ferguson v Welsh 1987 1 WLR 1553).[18]Here, Thistle admitted knowledge of Railtrack’s policy in relation to access to the roof. It was also accepted that this knowledge was not passed on to either Humphries or FAFS. The judge said after asking rhetorically “Did such special circumstances exist in this case?” (para 41):
“In my view they did. Thistle either knew or ought to have known that FAFS’ employees had been in the habit of going out on to the roof for repairs to the system over the past quarter of a century. So far as is known those employees had never been reproved or told not to go there without the permission of Railtrack or its predecessors. On 12 December Thistle were told that FAFS were contemplating the possibility of work which would require further access to the roof. Their case is of course that Mr Butler was instructed unequivocally to abandon the external option, but I have found earlier that they failed to make that instruction clear and Mr Butler was left under the impression that he could, if he chose, route the cable externally. In my view Thistle owed a duty to FAFS and their employees to make the true position plain beyond any doubt and that they failed, on my findings, to do. In my judgment this failure was negligent conduct on their part and contributed in some measure to the death of Mr Gray. ”

Apportionment

[19]The judge’s conclusions on apportionment are set out in paragraph 54 of his judgment and are as already described.

The grounds of appeal

[20]In its notice of appeal Humphries relies on five grounds. They are: 1. The judge wrongly found that Humphries owed a duty of care to the deceased; 2. The judge wrongly found that Humphries were in breach of a duty of care; 3. The judge erred in concluding that the breaches that he found were causative of the deceased’s accident; 4. The judge wrongly rejected Humphries claim to be entitled to a contractual indemnity from FAFS in respect of damages; 5. The judge’s apportionment of 30% was, in all the circumstances, excessive.[21]Thistle relies on three grounds of appeal: 1. The judge was wrong to hold that Thistle’s knowledge of Railtrack’s permit to work policy was a special circumstance the non-disclosure of which amounted to a negligent breach of a duty of care which was causative of the accident; 2. The apportionment of 20% was in all the circumstances excessive. 3. The judge’s finding in respect of Mr Butler’s knowledge and state of mind concerning the options to route the cable following the meeting of 12 December 2000 was wrong.

The Challenge to the Judge’s findings on the main factual issue

[22]Humphries and Thistle make common cause in challenging the judge’s findings on this issue in one material particular (ground two, Humphries; ground three, Thistle). It is clear that this finding by the judge played a significant part in his conclusions on duty of care in respect of both Humphries and Thistle. For this reason it seems sensible to start with these grounds of appeal.[23]At paragraph 25 of his judgment the judge recorded that he found Mr Butler an honest and convincing witness. He said that Mr Butler left the meeting of 12 December 2000 “wholly satisfied in his own mind that at the conclusion of the meeting it was left open to him to decide which of the three cabling options to pursue”.[24]At paragraph 28 of the judgment, within the passage already referred to, there appears the following findings of fact: “In the result I have reached the conclusion that although stray remarks may possibly have been made by various persons at different times during the meeting, perhaps as an aside or casual observation, no one made it clear to Mr Butler that he was not to proceed with the third option of external cabling, and that he left the meeting reasonably under the impression that it was for FAFS to decide which route to pursue”.[25]It is submitted by both counsel for the appellants that this finding was not open to the judge on the evidence. We have been referred by counsel to Mr Butler’s evidence and a number of documents in support of this submission.[26]Mr Derek Sweeting QC, on behalf of FAFS, accepted that this finding by the judge put Mr Butler’s evidence “a little too high”. However he submitted that it made no difference to the judge’s conclusions on duty of care. I shall return to the latter submission later in this judgment.[27]The minutes of the meeting of 12 December 2001 at which Mr Butler, Mr Lewis and Mr Sloan, among others, were present record that:
“2.3 West Wing 2nd to 3rd Floor crossing between Wing and Main Building to be agreed/some surface wiring may be required.”
[28]It is common ground that this is a reference to the different routes for the fire alarm cable. In an interview under caution conducted by the Environmental Health Officer on 10 September 2001 Mr Butler, in answer to questions, said (JB is Mr Butler):
“JB The running of the cable on the exterior of the wall was one of three alternatives that was discussed. RJS Was it agreed with Humphries that this would be the method to run the wiring? JB That’s that’s (sic) at the meeting prior to the accident, no it wasn’t agreed, it was agreed that that would be one of three alternatives to be investigated.”
And a little later in the interview:
“JB The running of the cable on the outside was merely an alternative it was down to us to investigate those three alternatives. RJS Did you investigate those alternatives? JB Regretfully that was what we were doing effectively when the accident happened. It appears that to me and this is only my opinion that Andrew and Ian investigated the exterior run for the cable, decided it was relatively simple exercise and started to carry it out”
Andrew and Ian were respectively Andrew Penney and the deceased, Ian Gray.

RJS Did you investigate those alternatives?

[29]In his evidence Mr Butler was asked about what occurred at the meeting on 12 December 2000 at which some of those present had apparently been on a walkabout:
“Mr Ford: Did you make those people who were present on the walkabout aware of those two alternatives? A. I did. Q Was anything said about the safety implications of any of those options? A. No. Q Was any decision taken about which of those three options ought to be decided on? A. Not at that time.”
Later in cross-examination by Mr Martin Porter QC on behalf of Humphries the following exchange took place:
“Mr Porter: I accept you and I do not agree about this, but you maintain the insistence that the three options that are in your statement were actually thought of on 12 December? A. The three options were certainly relayed at to (sic) the meeting of 12 December. Q But, even on your case, only as options at that stage? A. Yes. Q You never communicated the option had become a confirmed option or the chosen option? A. We did not relay the chosen option, no. Q Indeed, you did not even give Mr Gray and his colleagues any guidance as to which should be chosen option 3? A. I did not. Q You left it entirely to Mr Gray and his colleagues to decide? A. Yes.”
Q Was anything said about the safety implications of any of those options? Q You left it entirely to Mr Gray and his colleagues to decide? A. Yes.”

Q Was anything said about the safety implications of any of those options?

[30]On this evidence, in my judgment, the judge’s finding that Mr Butler left the meeting of 12 December 2000 “under the impression that it was for FAFS to decide which route to pursue” cannot stand. As appears from the above documents and extracts from Mr Butler’s evidence the most that can be said is that it was for FAFS to investigate which route would be the best option and to report back for an agreed decision.

Humphries appeal – Ground one

[31]In ground one Humphries challenged the judge’s findings that it owed a duty of care to the deceased. Mr Porter made two principal submissions. First, he submitted that the general rule is that a main contractor does not owe a duty of care to employees of a sub-contractor. The duty to provide a safe system and method of work for an employee rests with his employer alone. He submitted that the facts did not justify the judge departing from this general rule and finding that Humphries owed a duty of care to the deceased.[32]Secondly, Mr Porter submitted that in this case the judge imposed on Humphries a duty to scrutinise method statements and risk assessments which was akin to imposing a duty provided by the Construction (Design and Management) Regulations 1994. He pointed out that the Regulations did not apply to the contract made between Humphries and FAFS for the work of installing the fire alarm system. Further, he criticised the judge on the basis that, in any event, the Regulations imposed criminal liability alone and specifically excepted a civil cause of action in respect of a breach of them.[33]In support of the first submission Mr Porter relied on McArdle v AdmacRoofing Co & Others 1967 1AER 583; Ferguson v Welsh and Makepeace v Evans Brothers (Reading) & Anr [2000] BLR 287.[34]In my judgment there can be no doubt that in certain circumstances both an independent contractor and an occupier of a building can owe a duty of care to the employee of a sub-contractor. In Ferguson v Welsh, a case involving an occupier in the context of a duty to ensure that a contractor engaged by the occupier of the building was competent to carry out the work for which it was engaged, several members of the House of Lords described those circumstances as “special circumstances”.[35]In Makepeace v Evans Brothers (Reading) Mantell LJ giving the first judgment of the Court accepted that as a general rule an occupier of a building did not owe a duty of care for the safety of employees of its independent contractor. However, he said that he would not rule out occasions when such a duty of care might arise and proceeded to cite some examples from other authorities.[36]Whilst the obiter observations of the members of the House of Lords in Ferguson v Welsh are deserving of great respect, it is to be noted that the facts of that case were far from the facts of this case. In Ferguson v Welsh the House of Lords was concerned with the duty of an occupier to engage a competent contractor. In my judgment, where an independent contractor has sub-contracted work the question of whether the independent contractor will owe a duty of care to employees of its sub-contactor is one of mixed fact and law. I accept, and it was common ground before the judge, that in general no duty of care arises, but as Mantell LJ pointed out, there will be circumstances where such a duty will arise. In my opinion, it is unnecessary and unhelpful to attempt to formulate any specific test for deciding when such a duty arises. As Brooke LJ pointed out in Bottomley v Todmorden Cricket Club [2004] PIQR 276 the facts of each case are to be tested by “applying the range of tests for identifying a legal duty of care which the House of Lords has developed in the years that followed Ferguson v Welsh”.[37]Turning to the facts of this case, the judge expressed the duty of care as confined and defined in its scope by the six factors set out in paragraph 32 to which I have already referred. For my part, I accept that the judge was entitled to hold that in the circumstances of this case such a duty of care did exist. In particular, in my judgment, the fact that Humphries bound FAFS contractually to carry out work “to be agreed and carried out with close liaison with Mr C D Lewis contracts manager” is significant. The building was occupied by others either working or as guests in the Hotel. Railtrack staff might be present in offices in the floor below the roof. In the circumstances, it seems to me that the judge was entitled to hold that Humphries’right to supervise the work so as to ensure it was carried out safely imposed on it a duty of care which extended to the employees of FAFS.[38]In finding that there was such a duty I reject the submission, based on the Construction (Design and Management) Regulations. In my view they have no relevance in this case. I do not accept that in holding that there was a duty of care the judge was in any way influenced by those Regulations or that on the facts of this case the judge was extending the common law beyond what was permissible. He was, in my opinion, simply making a finding on the specific facts of the case.

Grounds two and three

[39]These two grounds involve some overlap and I will deal with them together. Mr Porter submitted that the judge erred in finding that Humphries was in breach of its duty of care by failing to call for proper risk assessments and method statements. He also erred in finding that Humphries failed to take energetic steps to prevent work on the roof.[40]Essentially, the judge’s findings of breach of duty of care centred on the fact that, as he found, following the meeting of 12 December 2000 Humphries knew that one of the methods of carrying out the work was the external route. He held that Humphries at that stage should have called for a proper method statement and risk assessment. Mr Porter submitted that not only was this exacting too great a standard of care but on the evidence it was unjustified. To understand this submission it is necessary to refer to some of the unchallenged evidence.[41]I have already set out my conclusions on the judge’s findings of fact in relation to Mr Butler’s state of mind following the meeting of 12 December 2000. So far as Humphries and Thistle are concerned the minutes of the meeting show that the question of which option to adopt was to be agreed. In evidence Mr Butler agreed that at the meeting the question of which route to use for the cables had not been decided. He said in answer to the question “How was it left?” “It was left for us to investigate further effectively”.[42]The documents show that the risk assessments reached Humphries on Friday, 5 January 2001. On that day Mr Butler discussed “various aspects of the work” with the deceased (see Mr Butler’s witness statement of 10 September 2001). Mr Andrew Penney was still on holiday and no representative of Humphries was present at that meeting. Mr Butler said that he and the deceased investigated some of the cable routes, presumably, meaning the existing cable routes.[43]Mr Penney returned from holiday on 9 January 2001. In his witness statement and in evidence he said that when he came on site the deceased was present. His witness statement of 5 May 2001 contains the following passages:
“After some discussion it was decided that Mr Ian Gray and myself would take the annex part of the job. After further discussion with Mr Ian Gray it was decided to use the existing cable tray on the outside wall of the hotel. Whilst Ian was working inside the corridor, I went outside onto the roof to make use of an existing cable tray which was fixed to the outside wall of the hotel to run my cable”
He added in that statement that after about one and a half hours the deceased came out to give him a hand. Shortly afterwards Mr Penney went to attend to parking arrangements for his van. On his return the accident was discovered.[44]In evidence Mr Penney agreed that the decision to use the external route was made by him and Mr Gray. He also agreed that this information was not relayed to anyone from Humphries or Thistle. Mr Butler in evidence also agreed that confirmation that the external route was to be used was not communicated to either Humphries or Thistle.[45]The submission made on behalf of Humphries is that on the basis of this evidence there can be no question of Humphries being in breach of its duty of care. It is submitted that the position following the meeting of 12 December was clear. FAFS was to investigate the three options and report back so that a decision could be made. It was not, as the judge erroneously found, that it was left to FAFS to make the decision. In fact, neither Humphries nor Thistle was given any opportunity either to participate in the decision to adopt the external route or to comment on it. The risk assessments gave no indication that this option was to be adopted and only reached Humphries on 5 January 2001. There appears to have been no more than a cursory inspection, if any, before the decision was made by Mr Penney and the deceased to adopt the external route. In the circumstances it is submitted that the question of calling for a method statement and risk assessment had not arisen before the work started.[46]In response to this submission Mr Sweeting submitted that even if the option of the external route was to be the subject of investigation and confirmation the fact that Humphries knew it was an option was sufficient to raise the requirement that it should call for a method statement and risk assessment immediately following the meeting. He submitted that the need for investigation would inevitably mean that men would have to go onto the roof to make the investigation. This knowledge should have alerted Humphries to call for the appropriate risk assessments.[47]For my part, I accept that on the unchallenged evidence the judge was wrong to hold that Humphries were in breach of a duty of care owed to the deceased. In my view, Humphries cannot properly be criticised for not calling for a method statement or risk assessments when to their knowledge the question of which route to take was to be investigated and the subject of agreement before the work was carried out. It is clear that at no time before the accident was Humphries informed that the external route was to be used.[48]I accept that the judge was quite entitled, and indeed correct, to find that Mr Lewis’ treatment of the risk assessments received by him on 5 January 2001 was a complete misconception of his obligation to scrutinise them. But there was nothing in the risk assessments to indicate to him that the external route was to be used. In any event, in my judgment, Mr Lewis’ fault in dealing with the risk assessments on 5 January 2001 cannot in the circumstances be said to have been a contributory cause of the deceased’s accident.[49]As to the submission that Humphries should have appreciated that an investigation would lead workmen to go onto the roof, there is no evidence that that was so. FAFS knew the route of the old cables from their previous work. Furthermore, there is no evidence that any of Mr Butler, Mr Penney or the deceased actually went on to the roof to make an investigation, let alone thought it was necessary to go onto the roof before the work started. Indeed, Mr Butler in evidence agreed that he thought going onto the roof to install the cable was a negligible problem.[50]Accordingly, in my judgment, the judge was wrong to conclude that Humphries was in breach of a duty of care owed to the deceased.[51]It follows that for these reasons I would allow Humphries’ appeal and dismiss the claim by FAFS for contribution. That being so it is strictly unnecessary for me to deal with grounds four and five of Humphries’ notice of appeal. However, since we have heard full argument on both grounds I shall express my views on each briefly.

The contractual indemnity – ground four

[52]The contract between Humphries and FAFS contained the following provisions:• “The Sub-Contractor will diligently and safely carry out the works to a high quality and in any event to the reasonable satisfaction of the company within the period specified and in conformity with all reasonable directions of EH Humphries (Norton) Ltd.”• “The Sub-contractor will indemnify EH Humphries (Norton) Ltd against any loss damage or claim arising from the Sub-Contractor’s failure to complete the work in a proper and workmanlike manner within the period and in addition shall indemnify EH Humphries (Norton) Ltd in respect of any liability or costs that the company incurs as a direct result of breach of any terms of this order.”• “The Sub-Contractor warrants….2. That it will comply with the company’s Health and Safety policy full details of which the Sub-Contractor acknowledges to have received prior to the date hereof.” The judge held that these provisions were not sufficient to make FAFS liable to indemnify Humphries for the damages resulting from the deceased’s death. He found that the damages for which indemnity was being sought arose out of Humphries’ own negligence and that the language of the above clauses was not apt to make FAFS liable to indemnify Humphries in respect of such damages.[53]There is no dispute in this court that the contractual provisions do not permit Humphries to be indemnified for damages arising out of its own negligence. However, it is submitted by Humphries that in this case the damages all arose out of FAFS’ failure to comply with the contractual term requiring it to carry out the work safely and in accordance with Humphries’ Health and Safety Policy. It was this failure that caused Humphries to be in breach of a duty of care. The issue is a narrow one.[54]FAFS’ submission on this ground is simple. It submits that the liability of Humphries is independent from FAFS’ liability. If FAFS had not been sued Humphries, on the judge’s findings, would still be liable to be deceased for a breach of its duty of care.[55]In my view FAFS and the judge are correct. The liability of Humphries is independent of FAFS’ liability. It is liable for its breach of duty and would have been liable to compensate Mrs Gray if she had proceeded with her claim against it. In my judgment the contractual term is not sufficient to make FAFS bound to discharge that liability.[56]I leave apportionment until after I have dealt with Thistle’s first ground of appeal to which I now turn.

Thistle’s appeal

[57]I have already dealt with Thistle’s third ground of appeal challenging the disputed issue of fact. In its first ground of appeal Thistle challenges the judge’s finding that it owed a duty of care to the deceased and that it was in breach of that duty.[58]It is clear from his judgment that the basis for the judge’s finding that Thistle was in breach of a duty of care owed to the deceased was Thistle’s knowledge that Railtrack, the owners of the roof, did not permit any person to go on the roof without a permit for work first being obtained from it. The judge held that this amounted to special circumstances within the principles established by Ferguson v Welsh.[59]Mr Colin McCaul QC, for Thistle, submitted that knowledge of Railtrack’s permit to work system could not amount to special circumstances giving rise to a duty of care owed to an employee of FAFS. Further, although Mr McCaul accepted that this knowledge ought to have been passed on to either or both of Humphries and FAFS, he argued that the failure to do so did not constitute a breach of any duty of care.[60]Mr Sweeting submitted that the judge’s conclusions were correct for the reasons which he gave. He emphasised a number of factors which he submitted supported those conclusions. In particular he submitted that Thistle, not being the occupier of the roof and the floor below, had no means of knowing that there was no hidden trap in the roof. Thistle knew that the roof was dangerous. It could foresee that any workmen working below the roof or any member of the public standing or walking on the station concourse might be affected by work being carried on by employees of FAFS on the roof. In the circumstances knowledge of Railtrack’s permit to work system amounted to special circumstances within the Ferguson v Welsh principles.[61]Again, before setting out my conclusions on this ground of appeal I must refer to some further unchallenged evidence. Mr Michael Sloan, Thistle’s general manager, when giving evidence said that he knew of Railtrack’s permit to work system. He said that if a maintenance team wanted to go anywhere on the station it would have to “sign in” at the duty manager’s office on the station.[62]Before the judge there was a letter from Railtrack to the Environmental Regulatory Services dated 25 February 2002, in which it gave answers to questions asked of it arising out of this accident. The following are material:
“3. Did Railtrack recognise the roof as fragile? The station roof area is listed as a hazardous area in the Station Hazard Directory. 4. Was there any agreement between Railtrack and Thistle? Did Railtrack warn Thistle by way of notices or otherwise? All high level glazed areas present risks hence Railtrack has a high level permit system in place. The relevant hazard directory is kept in Victoria Station reception and anyone requiring access to the roof must sign in at reception. They are then briefed on access arrangements and must satisfy a Railtrack designated member of staff that they are competent to undertake the work they are intending to do. They must also have radio contact at all times. Method statements and risk assessments are required 7 days in advance of any works being undertaken on the station.”
[63]It was this information which the judge, no doubt, had in mind when concluding, as he did, that Thistle’s breach contributed materially to the accident.[64]It is apparent that the judge’s findings in respect of duty of care and breach were underpinned by his finding that Thistle knew from the meeting on 12 December 2000 that FAFS were contemplating the possibility of work which would require access to the roof. Again, in my judgment, the judge’s erroneous finding that Mr Butler was under the impression that he could “if he chose route the cable externally” clearly played a significant part in the judge’s conclusions. This error has also to be seen against the background of the evidence of Mr Butler and Mr Penney to which I have referred when dealing with Humphries’ appeal.[65]In my judgment on the basis of the unchallenged evidence of Mr Butler and Mr Penney, the stage was never reached when it could be said that failure by Thistle to disclose the existence of the permit to work system amounted to a breach of a duty of care to the deceased. There is no evidence that at any stage before the accident Thistle knew that the external route had been chosen. As I have already said it is clear that this decision was made by Mr Penney and the deceased very shortly before the accident occurred. In the circumstances, in my judgment, the judge was wrong to find that Thistle was negligent for not having passed on this information at an earlier stage.[66]In reaching this conclusion I do so on the basis that even if the possession of knowledge of Railtrack’s permit to work system gave rise to a duty of care to employees of FAFS, failure to disclose it before 9 January 2001 did not amount to a breach of that duty.[67]Whether or not possession of that information could give rise to a duty of care owed by Thistle to the deceased is, in my opinion a more difficult issue. In view of my findings above it is unnecessary to reach any concluded view on it. Mr McCaul submitted that where, as here, Thistle had engaged a competent contractor to carry out the work through the medium of a competent sub-contractor on a part of the building which the judge found was obviously dangerous, it would not be fair, just and reasonable to impose on Thistle a duty to take care for the safety of the sub-contractor’s employees.[68]Mr Sweeting argued that possession of this information clearly gave rise to a duty of care owed by Thistle to any person injured on the station from work being carried out by FAFS’ employees and also to any employee of Railtrack working in the premises. He submitted that no distinction was to be made between such persons and employees of FAFS.[69]We were referred by counsel to Ferguson v Welsh and Bottomley v Todmorden Cricket Club on this issue. In my view neither the “special circumstances” test (Welsh v Ferguson) nor the “extra-hazardous” test (Bottomley v Todmorden CricketClub) is particularly apt to deal with the facts of this case. I readily accept, as Mr McCaul conceded, Thistle ought if the circumstances arose which required it to do so, to have disclosed the existence of the permit to work system. Among other reasons for doing so, any person going on the roof without permission would be a trespasser. But, I incline to the view that this information in the circumstances of this case was not capable of giving rise to a duty of care owed by Thistle to an employee of FAFS. As to whether it was capable of giving rise to a duty of care owed to other members of the public I express no opinion.[70]It follows that on my findings in respect of breach of duty Thistle’s appeal succeeds and the claim for contribution against it must also be rejected.

Apportionment

[71]This only leaves the question of apportionment raised in grounds of appeal by both Humphries and Thistle. Complaint is made by both Humphries and Thistle that in assessing apportionment the judge expressed the view that he might have apportioned FAFS’ responsibility at greater than 50% had FAFS been a bigger organisation. In my opinion this was a factor which the judge was entitled to take into account but one to which I would have attached little weight.[72]As is well known, this court seldom interferes with a judge’s discretion in respect of apportionment. I content myself with stating that I would have assessed FAFS’ responsibility at rather greater than 50%. I see no reason to conclude that the ratio of apportionment between Humphries and Thistle was wrong.

Conclusion

[73]For the reasons given above I would allow the appeals of both Humphries and Thistle.[74]I agree[75]I agree that the appeals of both Humphries and Thistle should be allowed for the reasons given by Gage LJ, whose account of the facts and circumstances of the appeals I gratefully adopt. I agree with his analysis of the contractual indemnity in paragraphs 53 to 57 of his judgment and do not wish to add anything on that topic.[76]As to the other grounds of appeal, negligence claims such as those under consideration in the present appeal are habitually presented or opposed with submissions, and by reference to authorities, which consider whether a defendant in the generic position of the particular defendant owes a claimant in the generic position of the particular claimant a duty of care; for example, whether a building owner or contractor in the construction industry owes a duty of care to an employee of a subcontractor who has been injured or killed. The usual relationship between a building owner or contractor and the employee of a subcontractor may well result in a decision in a particular case that there is no duty of care and so no claim in negligence. But there may be “special circumstances” when a claim in negligence by the employee of a subcontractor may succeed against the contractor or the building owner. Likewise, those presenting and opposing claims such as these will address the elusive concept of causation in support of or in opposition to the claim. In doing so, they will necessarily address much the same facts as informed their analysis of the duty of care and its breadth.[77]Compartmental analysis of this kind is convenient for presentation, but conceptually suspect. I would refer here for convenience to a short passage in my judgment in S. v Gloucestershire County Council [2001] Fam. 313 at 337F, since it abstracts relevant House of Lords authority, as follows:
“A negligence claim is habitually analysed compartmentally by asking whether there was (a) a duty of care; (b) breach of that duty and (c) damage caused by the breach of duty. But damage is the essence of a cause of action in negligence and the critical question in a particular case is the composite one, that is whether the scope of the duty of care in the circumstances of the case is such as to embrace damage of the kind which the plaintiff claims to have suffered. As Lord Bridge of Harwich said in the Caparo case [1990] 2AC 605, 627: “It is never sufficient to ask simply whether A owes B a duty of care. It is always necessary to determine the scope of the duty by reference to the kind of damage from which A must take care to save B harmless.”
Lord Oliver of Aylmerton emphasised the same point in Murphy v Brentwood District Council [1991] 1 AC 398, 486 when he said:
“The essential question which has to be asked in every case, given that damage which is the essential ingredient of the action has occurred, is whether the relationship between the plaintiff and the defendant is such … that it imposes upon the latter a duty to take care to avoid or prevent that loss which has in fact been sustained.”
This question necessarily subsumes the question whether the acts or omissions of the defendant caused the damage relied on.” Both Caparo and Murphy were mainly concerned with negligence claims where the damage is characterised as economic loss. But the same principles apply to all negligence claims. Personal injury or physical damage directly inflicted by the actions of a defendant do not often need sophisticated analysis of the underlying legal structure to formulate a claim in negligence. But where the damage is economic or where, as in the present case, personal injury or death were not directly inflicted by the relevant defendants, a composite question arises by reference to the particular facts. “The essential question which has to be asked in every case, given that damage which is the essential ingredient of the action has occurred, is whether the relationship between the plaintiff and the defendant is such … that it imposes upon the latter a duty to take care to avoid or prevent that loss which has in fact been sustained.”[78]Agreeing with Gage LJ, I am persuaded that the judge in the present case made factual findings which were not open to him on the evidence. The difference is fairly narrow, but, in my view, critical. We have the benefit of a transcript of the evidence, and I imagine that the judge did not. The crucial facts therefore were that the meeting of 12th December 2001 left it that three possible routes for the fire alarm cable would be investigated; that no decision was reached as to which route would be taken; that FAFS were to report back to Humphries and Thistle once the investigation had been undertaken; but that FAFS did not do this. On the contrary, in the persons of Mr Gray and Mr Penney, FAFS unilaterally decided to use the external route without instructions from Humphries or Thistle and without telling them. This was contrary to what had been agreed at the meeting on 12th December 2001.[79]These being the facts, I do not consider that the relationships between Mr Gray and Humphries or Thistle were in the circumstances such as to impose on either of them a duty to take care to avoid or prevent the tragic accident which in fact occurred. It had not been decided that the cable would be routed externally and, put bluntly, what FAFS did was unauthorised. I do not consider that Thistle owed a duty to Mr Gray to explain the position with Railtrack before the route for the cable was decided. I do not consider that Humphries owed a duty to Mr Gray to ensure that FAFS carried out their work safely in this respect when the work itself was unauthorised. The accident occurred because FAFS decided to start the work when they should not have started it. I do not consider that Humphries or Thistle owed Mr Gray a duty to guard against possible consequences of that unanticipated action on the part of FAFS.

Cited in 1 later judgment