Jennings v The Forestry Commission [2008] EWCA Civ 581

[2008] EWCA Civ 581Case No B3/2007/2032
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
Venue ON APPEAL FROM MANCHESTER COUNTY COURT
Mr Recorder Rigby
Claim No. 6MA 16030
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 23/05/2008
Before
LORD JUSTICE MAYLORD JUSTICE RICHARDSSIR PAUL KENNEDY
Between
Harvey JenningsClaimant/ RespondentThe Forestry CommissionDefendant/Appellant
Richard Davies QC and Derek O’Sullivan (instructed by Eversheds LLP) for AppellantNicholas Braslavsky QC and Fiona Ashworth (instructed by Rowlands Solicitors LLP) for DefendantHearing Hearing dates : 1 May 2008
Judgment
[1]The claimant, Mr Harvey Jennings, sustained serious injuries on 19 January 2004 while delivering materials for fencing work he was carrying out for the Forestry Commission in the Alport Valley, near Bamford, Derbyshire. He was driving his own Land Rover on a steeply sloping field when it went out of control and rolled over. At a trial of liability in the Manchester County Court, Mr Recorder Rigby found the Forestry Commission liable to the claimant on three bases:(1) under the Provision and Use of Work Equipment Regulations 1998 (“the 1998 Regulations”),(2) as an employer, for breach of a duty of care and breach of the duty to make a suitable and sufficient risk assessment under regulation 3 of the Management of Health and Safety at Work Regulations 1999, and(3) for breach of a duty of care arising from the assumption of responsibility. He assessed contributory negligence at 35 per cent. The Forestry Commission now appeals against the findings of liability.

The facts

[2]The claimant was aged 47 at the date of the accident. He had by his own account been self-employed for many years, doing work that included fencing and sheep shearing. He had done fencing work for the Forestry Commission on a number of previous occasions.[3]On 1 September 2003, a few months before the accident, he had entered into a written “service contract” with the Forestry Commission. The services to be provided by him as “the Contractor” under the agreement were described in a schedule. The original schedule related to a different fencing job, but the work he was undertaking at the time of the accident was the subject of an additional schedule and was found by the Recorder to be governed by the agreement. The agreement included the following relevant provisions: i) By clause 4.2, the Contractor was to ensure that “all vehicles operated by or on behalf of the Contractor shall be in a roadworthy condition and suitable for the relevant road conditions and terrain and shall be driven or used only by competent personnel with all proper skill, care and attention …” and that “all vehicles and/or equipment operated by or on behalf of the Contractor shall be in a safe and operable condition …”. ii) By clause 5.1, the Contractor was to “ensure full compliance with all Health and Safety Law by the Contractor and employees, its sub-contractors, agents and their respective employees, in relation to any action taken by or on behalf of the Contractor in the provision and performance of the Services taking place upon the land, access routes or other premises/property of the Commission”. iii) Clause 17.1 required the Contractor to maintain third party liability insurance. iv) Clause 20 stated in terms that “the Contractor is engaged to provide the Services as an independent contractor and neither it, nor any of its employees, sub-contractors or agents (or their respective employees), is the employee of the Commission”. v) Clause 21 provided that the Contractor was not to perform any of its obligations under the agreement through sub-contractors or agents (other than the Contractor’s own employees) without notifying the Commission, which had a power of veto over the use of anyone considered unsuitable.[4]The work on which the claimant was engaged at the time of the accident involved the construction of approximately 2,100 metres of stock fence along the boundary between Forestry Commission land and National Trust land in the Alport Valley. The lower part of the job was accessible by road, with a relatively short journey from the road up to the fence line across fields of varying steepness. The upper part of the job was less readily accessible and was on very steep slopes. The claimant gave a quotation for the work on 28 December 2003, quoting a price per metre. A written schedule was then prepared by the Forestry Commission, referring back to the August 2003 service contract and setting out detailed terms and specifications for the work. The rate shown was as quoted by the claimant. The commencement date was 12 January 2004; the completion date was 31 March 2004. A detailed site plan was appended. The schedule also contained the following:
“Specification a) Fence lines to be agreed with Contract Manager before work begins. Deviations from this line must have prior approval of Contract Manager. b) Fences to be erected in accordance with Appendix 1 [which was a detailed ‘stock fence specification’]. c) All materials except netting to be supplied by Contractor. d) The materials will be taken to the fence line by helicopter or all-terrain vehicle, by National Trust staff. Health & Safety a) The Contractor must attend a pre-operational meeting with Contract Manager where site hazards, work practices, work standards and order in which work is carried out will be discussed. b) It will be the contractor’s responsibility to carry out their own risk assessment of the operation. c) The Contractor must provide a copy of their insurance certificate for a minimum of £5 million public liability insurance at least 5 days prior to the pre-operational meeting. d) Health & Safety regulations and practices must be strictly adhered to as per the Health & Safety at Work Act.”

Health & Safety

[5]The Recorder found that paragraph (d) of the specification amounted to an undertaking by the Forestry Commission to procure that materials were taken to the fence line by helicopter or all-terrain vehicle, by National Trust staff. Mr Davies QC, for the Forestry Commission, accepted that the schedule was to be read in this way, but relied on events on the ground, to which I will come, as giving rise to a variation of this term at the time when the schedule was signed.[6]The Contract Manager referred to in the schedule was the Forestry Commission’s Mr Albin Smith. On 16 January 2004 Mr Smith completed an outline risk assessment form, in which he identified a “slip, trip or fall” hazard at the worksite and listed the following controls:
“Materials flown to steep areas by helicopter. PPE [personal protective equipment]. Worksite planning.”
[7]The pre-operational meeting referred to in the schedule took place at the worksite on 19 January 2004, after the claimant had already commenced work on the job. A record form in respect of that meeting was filled in by Mr Smith and signed on the day by him and the claimant. It contained a section on “Work Organisation” which included the following printed entries and handwritten comments against them (the handwritten entries being shown here by italics):
“Has the order of working been agreed? Yes (transport permitting). Special requirements in the Schedule: Delivery of materials to worksite by helicopter (NT to arrange).”
Special requirements in the Schedule: Delivery of materials to worksite by helicopter (NT to arrange).”[8]Those documents need to be considered together with the claimant’s own evidence of how he came to be using his Land Rover for the work. In his third witness statement he said that the intention had been to fly in some posts for the job by helicopter in December but bad visibility had prevented it. He himself had gone up with a National Trust worker and the pilot to peg out where the bundles were to be dropped. The statement continues:
“3. Nothing more was done then until 5th January 2004, when I actually firmed up the quote and indeed approximately one week before the start date, I spoke to Albin Smith and discussed how I was to do the job, including the use of my Land Rover and nothing was said. Albin Smith did say, initially, when he asked me to quote for the job, that The National Trust would provide track machines if necessary but I mentioned to him a week before the accident that I was intending to use my Land Rover as I had done on many previous jobs, and he did not say anything negative in that regard.”
[9]In his fourth witness statement, the claimant said that Mr Smith knew that he was going to do the job with his Land Rover, and “I did not want to bother The National Trust with this particular job because I thought it would be pretty straightforward with the Land Rover”.[10]These matters were explored further in the claimant’s oral evidence. For example, the following exchanges occurred in the course of cross-examination (tr.13G-14B):
“Q. I think what you said in your brief evidence in chief was that the helicopter was going to be arranged for transport to the upper part and it was left to me to decide upon the lower part? A. When I first looked at the job I said to [Albin Smith] that I would use the Land Rover and [Albin] said we could use the ATV [all terrain vehicle] if necessary. Nothing more was said about that part. … Q. So the lower part is where the accident occurred? A. Hmm. Q. That field? So it was your decision to use the Land Rover in that field? A. Yes.”
Q. So the lower part is where the accident occurred? A. Yes.”

Q. So the lower part is where the accident occurred?

[11]As appears in the passage I have quoted from his third witness statement, the claimant had used his Land Rover on many previous jobs. He had in fact owned the vehicle for about 12 years and had adapted it himself by raising the suspension system so that larger, “dumper truck” type wheels and tyres could be fitted. He used it off-road for fencing work: it was not licensed for use on the road.[12]One of the issues before the Recorder was the extent to which the Forestry Commission had determined in the past what kind of vehicle should be used on a particular job. As to that, the claimant said in his third witness statement that “I always did everything on my jobs and Albin Smith had no real input except for jobs in the Goyt Valley in 2003 and Rainow in 2002, when Albin Smith asked if I needed to use a quad bike …”. Later in the statement he referred in addition to Albin Smith providing a “soft track machine with driver” (referred to in oral evidence as an Argocat) for two jobs in the Derwent Valley. In oral evidence the claimant told the Recorder that on those occasions the Forestry Commission had carried out an assessment before he undertook the work and the transport was provided.[13]Returning to the present job, it was the claimant’s evidence, in his first and third witness statements, that the night before starting the job he dropped the Land Rover off on a track near to where the job was going to take place. He and his assistant, Charles Davies, started work on the job at about 2.00 pm on 19 January. Mr Smith came at approximately 3.00 pm. The claimant was working up the hill at that point but saw Mr Smith’s car arrive and went down to talk through the job with him and sign the documents. He refers to signing the risk assessment, but it is clear that the documents he discussed and signed at that time were the schedule itself and the record form for the pre-operational meeting. Mr Smith then left and the claimant carried on with his work. Charles Davies says in a witness statement that the meeting between the claimant and Mr Smith took 15-20 minutes and that after the meeting Charles Davies and the claimant started to lay posts for the next day; the claimant brought the posts up in his Land Rover; he had been up to the tree line where Charles Davies was working on two or three occasions before the accident. It was at about 4.00 pm when the accident occurred. It was not witnessed by Charles Davies and it is not known how precisely it happened; but the Land Rover appears to have lost traction, slid down the field and rolled over onto its roof. The accident occurred on land owned by the National Trust, not the Forestry Commission.[14]On the claimant’s own evidence he did not think there would be a problem with the Land Rover and had not experienced any problem by the time Mr Smith came with the documents. It was only after the meeting with Mr Smith that a problem arose. For example, his cross-examination included the following passage (tr.21C-E):
“A. … Looking from the road, it looked quite a straightforward job. I thought the Land Rover was capable of doing it. But when I actually went on the field, it came quite evident that I was going to be struggling with it actually. Q. But you kept on going? A. That’s right, yes. Q. You did not at that point contact Mr Smith to say, ‘Look, the Land Rover is going to struggle with this. I need the ATV.’ A. We had just signed – I had actually started the job and gone to the first gateway and then Alvin came and we signed the documents and then actually after Alvin had gone, that’s when I started to struggle with the Land Rover. Q. When he was with you, obviously he had no idea of this and you are saying after the meeting on that afternoon you started to struggle with the Land Rover? A. Well, I say struggle, no, it was actually coping, but obviously the way it worked out it did not cope well enough, but I wasn’t aware that it wouldn’t be able to cope at the time.”
It also appears from the exchange at tr.24B-C that the area where the claimant had been working before Mr Smith’s arrival may have been less steep than where he was working later, when the accident occurred.[15]There is no doubt as to the Land Rover’s unsuitability for use at the place where the accident occurred. This was a steep slope covered with grass, moss and mole hills; and it was wet at the time. The report of the jointly instructed engineer summarised the faults in the Land Rover as including(i) that it had a customised raised suspension system that would have altered the “design” centre of gravity of the vehicle, and(ii) that it was not fitted with a roll-over protection system.[16]Before leaving the facts, there is one further passage in the claimant’s evidence that I think it important to set out. It relates to the general question of control, which runs through the legal issues in the case. In the course of his cross-examination the claimant referred to the specification with which he had to comply. The exchange continued:
“Q. You were not told how to do it, you were just given the schedule of what they expected it to look like? A. That’s right. Q. But how you actually built it, when you built it, was up to you, was it not? A. Yes. Q. And there was no-one supervising you or in control of you or anything like that? You were in charge? A. Yes, I was accountable to Alvin for the quality of the fencing. Q. Absolutely, you were accountable for quality, but you were in charge of the actual contract works? A. That’s right ….”
[17]I have referred extensively to the claimant’s evidence. Although Mr Smith had signed a witness statement, the Forestry Commission did not call him as a witness at the trial. Mr Braslavsky QC, for the claimant, placed very considerable emphasis on this, stressing that there was no evidence from Mr Smith to contradict the evidence given by the claimant. I have borne that carefully in mind; but, as appears below, the difficulties faced by this claim arise from the claimant’s own evidence, taken together with the documentary evidence; and if the claim cannot succeed on the claimant’s evidence, nothing can turn on the absence of evidence from Mr Smith, whatever may have been the reasons for the decision not to call him.

The issues

[18]The logical order for consideration of the issues is: i) Was there an employment relationship between the Forestry Commission and the claimant? If so, it is common ground that there was a breach of the Forestry Commission’ duties as an employer. ii) If there was no employment relationship, was the Forestry Commission nonetheless subject to the requirements of the 1998 Regulations in relation to the Land Rover, by virtue of regulation 3(3)(b)? If so, it is common ground that there was a breach of regulation 4 for which it is strictly liable. iii) Was there an assumption of responsibility by the Forestry Commission giving rise to a duty of care? If so, it is common ground that there was a breach of that duty.

Employment relationship?

[19]The Recorder found that the “factual reality” of the relationship between the Forestry Commission and the claimant was that of employer and employee. I take a fundamentally different view. It seems to me that, on the facts as summarised above, the claimant was plainly acting as an independent contractor and not as an employee.[20]Lane v The Shire Roofing Company (Oxford) Ltd [1995] PIQR 417 was treated by the Recorder as the most relevant authority. Mr Davies did not dispute that, but submitted that the case was factually very different from the present one and that the principles stated in Lane lead to a very different result when applied to the facts of the present case. At p.421 Henry LJ (with whom the other members of the court agreed) referred to “the standard authorities”, including Readymix Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497, as showing that there are many factors to be taken into account and, with different priority being given to those factors in different cases, all depends on the facts of each individual case. He did, however, identify certain relevant principles:
“First, the element of control will be important: who lays down what is to be done, the way in which it is to be done, the means by which it is to be done, and the time when it is done? Who provides (i.e. hires and fires) the team by which it is done, and who provides the material, plant and machinery and tools used? But it is recognised that the control test may not be decisive – for instance, in the case of skilled employees, with discretion to decide how their work should be done. In such cases the question is broadened to whose business was it: was the workman carrying on his own business, or was he carrying on that of his employers? The American Supreme Court, in United States of America v Silk (1946) 331 US 704, asks the question whether the men were employees ‘as a matter of economic reality’. The answer to this question may cover much of the same ground as the control test (such as whether he provides his own equipment and hires his own helpers) but may involve looking to see where the financial risk lies, and whether and how far he has an opportunity of profiting from sound management in the performance of his task …. And these questions must be asked in the context of who is responsible for the overall safety of the men doing the work in question ….”
[21]The plaintiff in Lane was injured while doing tiling work for the defendant building contractor who had advertised for men to work on a particular contract and had taken on the plaintiff at a daily rate when he responded to the advertisement. The plaintiff had at one time had his own one-man firm as a builder/roofer/carpenter, but that work had dried up, his public liability insurance had lapsed and at the time he answered the advertisement he was usually working for others. Henry LJ not only held that the defendant was the plaintiff’s employer, but described the situation as substantially nearer “the lump” than that of a specialist sub-contractor.[22]The Recorder in the present case held that “[f]or other purposes the Claimant might be deemed to be self-employed and running his own business but for the purposes of health and safety applying the approach of Henry LJ I find that this was closer to someone working on ‘the lump’ than to the relationship between an occupier and a skilled independent contractor”.[23]The Recorder’s reference to “an occupier” is puzzling, since the claimant was working on a boundary fence and was not in fact on the Forestry Commission’s land at the time of the accident.[24]Mr Davies also took strong issue with the Recorder’s reference to “the lump”, contending that the typical features of that phenomenon were plainly not present here. As he summarised it, the origin of “the lump” lay in the construction industry and it typically involved men working for periods of varying length on a single site, often as groundworkers, for a single “employer”. They usually did not supply their own tools; they rarely, if ever, supplied their own materials; and they rarely, if ever, quoted a contract price, but were paid by the day or the week, the price being decided unilaterally by the “employer”. There were fiscal advantages for both sides, and health and safety advantages for the employer. There was nothing approaching equality of bargaining power, and control of the work to be done and the manner of doing it lay substantially with the “employer”. The present situation, submitted Mr Davies, was worlds away from that. I agree, and regard it as wholly inapposite to liken this case to “the lump”. But that is not sufficient to determine the question whether the relationship is to be categorised as one of employment.[25]Mr Braslavsky pointed to the detailed specification for the work and the need for prior approval of the Contract Manager for any deviations from the line of the fence. In my view that does not help at all. A detailed client specification, from which the contractor is not free to depart without the client’s approval, is perfectly normal in contracts for services. Much more important is who had control over the way in which the work was to be done and when it was to be done. The answer is that the claimant had such control. He was in charge of the work and was not subject to supervision by the Forestry Commission. He decided when to do it, subject to the outer time limits laid down in the schedule for the commencement and completion of the work. Moreover, he decided whether and on what terms to employ an assistant (a matter over which, unlike the use of sub-contractors, the Forestry Commission had no veto). He provided all the materials except netting, at a cost which he estimated in his oral evidence at about £4,000 (a sum which was doubted by the Recorder but seems to be to be plausible for a fence of this length and construction). He used his own Land Rover (though there is an issue, which I shall reserve for consideration later, as to whether the Forestry Commission nonetheless had control over the means of transportation of the materials to the site). He quoted a price for the work, which was accepted by the Forestry Commission. If one stands back and asks whose business it was, the answer is that it was obviously the claimant’s business. He was taking the financial risk, and he stood to gain or to lose according to the speed and efficiency with which the work was completed.[26]The shape of the August 2003 service contract also accords with the view that the claimant was being retained as an independent contractor. The obligations imposed on him to ensure that vehicles and equipment were in proper condition, to ensure that he and his employees complied with health and safety requirements, and to maintain third party liability insurance, all point in that direction. So, too, the relevant schedule provided that it was the claimant’s responsibility to carry out his own risk assessment of the operation (a point that is not negatived by the fact that the Forestry Commission also chose to carry out a risk assessment). The express term of the agreement that he was engaged to provide the services “as an independent contractor” and not as an employee of the Forestry Commission may not carry much weight in itself but is a further relevant factor. There is no suggestion that the agreement was a sham. To my mind, it is both an indicator and a reflection of the “factual reality” of the relationship between the parties.[27]Accordingly, the Recorder was in my view wrong to hold that the Forestry Commission entered into an employment relationship with the claimant and therefore owed him the duties of an employer towards an employee in respect of this work.

The 1998 Regulations

[28]I shall consider the 1998 Regulations on the basis that the Forestry Commission was not the claimant’s employer. If, contrary to the conclusion reached above, the Forestry Commission was the claimant’s employer, it is accepted that the 1998 Regulations applied and that there was a breach of them. The issue of remaining interest is whether they applied in the absence of an employment relationship between the parites.[29]It is not in dispute that the claimant’s Land Rover was “work equipment” as defined in regulation 2(1). Nor is it in dispute that it was being used by the claimant “at work”, so that by regulation 3(2) the requirements of the 1998 Regulations would apply to it if there were an employer/employee relationship. Those requirements include, by regulation 4, various obligations relating to the suitability of work equipment; and it is common ground that there was a breach of regulation 4 if it applied.[30]Whether regulation 4 applied in the absence of an employment relationship depends on regulation 3(3), which provides: “The requirements imposed by these Regulations on an employer shall also apply – … (b) … to a person who has control to any extent of -(i) work equipment;(ii) a person at work who uses or supervises or manages the use of work equipment; or(iii) the way in which work equipment is used at work, and to the extent of his control.” (i) work equipment; (ii) a person at work who uses or supervises or manages the use of work equipment; or (iii) the way in which work equipment is used at work,[31]The Recorder rightly emphasised the words “to any extent” in the first line of paragraph (b); but the words “and to the extent of his control” in the last line are of equal importance, yet, as Mr Davies pointed out, they did not feature in the Recorder’s reasoning. The central question in this case, however, is whether the Forestry Commission had any relevant control at all.[32]It is necessary to consider each of the sub-paragraphs of paragraph (b), whilst allowing for the possibility of overlap between them. It is difficult, however, to see on what possible basis it could be said that the Forestry Commission had control of the Land Rover itself, within sub-paragraph (i). The case has to be put, as I think Mr Braslavsky acknowledged, on the basis of sub-paragraph (ii) or (iii), that is on the basis of control of the claimant in relation to his use of the Land Rover, or control of the way he used the Land Rover. The nature of the claimant’s case is that the Forestry Commission was in a position to prevent his using the Land Rover at all or to restrict its use to parts of the fence line where it was safe to use it.[33]Some assistance as to the approach to be adopted towards regulation 3(3)(b) is to be found in McCook v Lobo [2002] EWCA Civ 1760, where the court considered regulation 4(2) of the Construction (Health, Safety and Welfare) Regulations 1996, which provides that “[i]t shall be the duty of every person … who controls the way in which any construction work is carried out by a person at work to comply with the provisions of these Regulations insofar as they relate to matters which are within his control”. The issue in the case was whether the owner of premises at which work was being carried out by a building contractor retained by him owed a duty under regulation 4(2) to a general labourer employed by the building contractor. The court held that he did not. The key points to be extracted from the judgments of Judge LJ (at para 16) and Hale LJ (at para 28) are that the duty under the regulation depended on factual control and that a person who had factual control could not avoid the duty by choosing not to exercise such control. The parties before us did not contend for a different approach under regulation 3(3)(b).

The Recorder’s central reasoning on this issue was as follows:

“I find that the Defendant had given consideration to the practicalities of transporting the material to the fence line and to the safety of the person or persons who would be involved in the process. The Defendant as is clear from the Specification … decided that the materials should be transported by helicopter or all terrain vehicle and undertook to arrange that such transport should be available. Though in the event the Claimant took it upon himself to transport materials in his Land Rover I find that by allowing him to do this Mr Smith … had chosen not to exercise the control that I find he and the Defendant had of this part of the operation and chose to allow the Claimant to use what was, as everyone accepts, unsuitable equipment. … [T]he Defendant by contract and also by previous practice had factual control of this part of the operation within the meaning of [regulation] 3(3)(b) and therefore of the equipment which was used.”
[35]Although the ultimate question is one of factual control, it seems to me that one needs to start by considering the contractual position. Indeed, Mr Braslavsky’s submissions were rooted to a significant extent in the contract. His argument was that the Forestry Commission had taken upon itself a contractual obligation to ensure that the materials were taken to the fence line by helicopter or all terrain vehicle, and inherent in that was a contractual right on its part to insist that materials were transported in that way and not by any other means. Mr Smith could therefore have told the claimant not to use the Land Rover at all or to restrict the use of the Land Rover to the less steep slopes. He had control, but in allowing the claimant to use the Land Rover he chose not to exercise that control.[36]I find that line of argument unpersuasive for a number of reasons. First, I am doubtful whether, even if there had been a contractual obligation on the Forestry Commission to ensure that materials were taken to the fence line by helicopter or all terrain vehicle, it would have entailed, or warranted the implication of, a contractual right to direct the claimant not to transport the materials by other means. Had such an obligation existed, the claimant could have insisted on its performance, but it does not follow that he could have been prevented contractually from transporting the materials in his own vehicle if he chose to do so in order to enable him to get on with the job.[37]Secondly, I do not accept that there was a contractual obligation on the Forestry Commission to ensure that the materials were taken to the relevant part of the fence line by helicopter or all terrain vehicle. That was certainly the provision in the schedule, but one has to look beyond the schedule for the true terms of the agreement actually entered into between the parties. By the time the schedule came to be signed, it was the clear understanding between the claimant and Mr Smith that materials were to be delivered by helicopter to the upper part of the job but that the claimant would use his Land Rover for the lower part of the job. The claimant had informed Mr Smith of his decision to use the Land Rover about a week beforehand, and both parties proceeded thereafter on that basis. That was reflected in the record of the pre-operational meeting, signed at the same time as the schedule, which said nothing about delivery of materials to the lower part of the site: the claimant himself accepted that the reference in it to “delivery of materials to worksite by helicopter” related only to the upper part of the job. Thus, the parties must be taken to have agreed to a variation to the wording contained in the schedule, restricting the scope of the Forestry Commission’s delivery obligation to the upper part of the site. It may still have been implicit that an all terrain vehicle would be provided if requested by the claimant, but there was no general obligation on the Forestry Commission in respect of delivery of materials to the lower part of the site. In the absence of such an obligation, the argument that the Forestry Commission had a right to control the mode of transport of materials has nothing left to support it.[38]Irrespective of whether there was a contractual right of control, I think it clear that the Forestry Commission did not have control as a matter of fact. It is true that it had a better overall knowledge of the terrain and had originally built in provision for all materials to be moved by helicopter or all terrain vehicle. But in practice the claimant assessed for himself that it would be “pretty straightforward” for the Land Rover on the lower part of the job and decided to use it for that purpose. This was communicated to Mr Smith and was evidently taken into account in the risk assessment carried out by him a few days before the work began, in which he referred only to transportation by helicopter to the steep areas; and essentially the same point was included in the record of the pre-operational meeting. Mr Smith turned up for that meeting, with the documents, after the claimant had already started the job, and he left immediately after the meeting. The claimant accepted in evidence that he was in charge of the work, which he was left to do without supervision. Both parties acted, as it seems to me, on the understanding that it was for him to decide how to do the work, including what use was to be made of the Land Rover. If he had concerns, it was for him to raise them and if necessary to request the use of some other mode of delivery of the materials to the site. He raised no concerns at the meeting, because he had none at that stage. In my judgment, this was not a situation in which Mr Smith had factual control but failed to exercise it, “allowing” the claimant to use the Land Rover when he could have stopped him. The relevant control lay in practice with the claimant.[39]Mr Braslavsky sought to derive assistance for his case from a Forestry Commission policy document dealing on its face with the use of chainsaws by contractors. I doubt whether the document had any application to the aspect of the claimant’s work in issue in this case, but in any event I have found the document unhelpful.[40]Mr Braslavsky also placed weight on the history of previous dealings between the parties, to which the Recorder referred in his reasoning. In my view, however, that history does not take one very far. There were a few previous occasions when the Forestry Commission provided an all terrain vehicle; but the claimant had also used his own Land Rover on a number of previous occasions. The evidence overall does not support the Recorder’s apparently general finding that Mr Smith on earlier contracts had decided when an all terrain vehicle or helicopter was necessary and had arranged for one to be provided as necessary. That may or may not have been the position on the particular contracts where such a vehicle was provided, but the claimant’s evidence taken as a whole does not show that he always relied on the Forestry Commission rather than exercising his own judgment in the matter. In any event, on this job, as I have said, he did exercise his own judgment, at least in relation to the lower part of the job, and that was the position accepted by both parties.[41]It follows that the Forestry Commission did not have control to any extent for the purposes of regulation 3(3)(b) and the requirements of the 1998 Regulations did not apply. The Recorder was therefore wrong to hold the Forestry Commission liable under them.[42]After the hearing of this appeal a different constitution of the court handed down judgments in Mason v East Potential Limited [2008] EWCA Civ 494 and written submissions on those judgments were received from counsel for both parties. It suffices to say that my analysis of regulation 3(3)(b) accords with Mason but that nothing in that case, which concerned the application of regulation 3(3)(b) to a very different factual situation, determines the answer to the issue arising in this case.

Assumption of responsibility

[43]The Recorder found that the Forestry Commission owed the claimant a duty of care by having assumed responsibility in relation to the transportation of the materials. He saw similarities between this case and Mercer v South Eastern and Chatham Railway Companies’ Managing Committee [1922] 2 KB 549, in which the defendants were held liable for injury caused to the plaintiff when she passed through an unlocked wicket gate and was knocked down by a train while crossing the railway line. It was the defendants’ practice, upon which pedestrians had come to rely, to lock the gate when a train was approaching and to have it unlocked only when no train was approaching. The signalman had negligently departed from that practice on the occasion of the accident, thereby creating a danger that “was not an obvious one”. As to the present case, the Recorder stated:
“In this case the previous dealings between the Claimant and the Defendant and specifically with Mr Smith were such that he was entitled to rely upon the Defendant to provide a helicopter or an all terrain vehicle when he, Mr Smith, assessed that it was necessary. The specification confirmed this practice in undertaking that such transport would be provided to the Defendant. On this issue my finding is that the Defendant had assumed a common law duty of care to the Claimant in relation to the provision of transport for the materials.”
[44]Again I have reached an altogether different conclusion. The present case does not seem to me to have any relevant factual similarities to Mercer (which was, moreover, an occupier’s liability case about the creation of a hidden danger on land rather than involving any more general principle about the creation of a duty of care through an assumption of responsibility). As already explained, I do not accept that the previous dealings between the parties were such that the claimant was entitled to rely on Mr Smith to assess what mode of transport was necessary. In any event, on this occasion the claimant made his own assessment in relation to the lower part of the job and decided for himself to use his Land Rover. That was the basis on which the parties entered into the agreement, notwithstanding that the specification referred to delivery by helicopter or all terrain vehicle. There was no relevant assumption of responsibility by the Forestry Commission in respect of delivery of materials; nor was there any relevant reliance by the claimant. In my judgment, the Recorder’s finding of liability on this basis cannot stand.

Conclusion

[45]For the reasons given, I would allow the Forestry Commission’s appeal and direct that the claimant’s claim be dismissed.

Sir Paul Kennedy:

[46]I agree that, for the reasons given by Richards LJ, the respondent never was an employee of the Forestry Commission, nor did the Forestry Commission assume a duty of care for his safety in carrying out the task on which he was engaged at the time of the accident. The appeal therefore succeeds on grounds 2 and 3, but it may be helpful if I say a little about how I have come to the conclusion that the appeal should also succeed in relation to ground 1.[47]The Provision and Use of Work Equipment Regulations 1998 apply to all equipment used at work. It is accepted that the definition of “work equipment” is wide enough to include the Land Rover being used by the respondent at the time of the accident to transport materials. In the light of the expert’s report it is clear that the Land Rover was not suitable for carrying out that task at that location. Had the respondent been the appellants’ employee the appellants would clearly have been in breach of regulation 4 which, so far as material provides that– “(1) Every employer shall ensure that work equipment is so constructed or adapted as to be suitable for the purpose for which it is used or provided. (2) In selecting work equipment, every employer shall have regard to the working conditions and to the risks to the health and safety of persons which exist in the premises or undertaking in which that work equipment is to be used and any additional risk posed by the use of that work equipment. (3) Every employer shall ensure that work equipment is used only for operations for which, and under conditions for which, it is suitable.”[48]But it is not sufficient for the appellants to show that the respondent was not an employee, because the regulations impose duties on others in addition to employers. Regulation 3(3) so far as material, provides that– “The requirements imposed by these Regulations on an employer shall also apply–(a) …(b) … to any person who has control to any extent of– (i) work equipment; (ii) a person at work who uses or supervises or manages the use of work equipment, or (iii) the way in which work equipment is used at work, and to the extent of his control.” It is worth noting in passing that regulation 3(4) states– “Any reference in paragraph (3)(b) to a person having control is a reference to a person having control in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).” So a householder who employs a contractor to do work on his home, and then sees the contractor using his equipment in a way which appears to be dangerous, is not in breach of regulation 3 if he does not intervene. (a) … (b) … to any person who has control to any extent of– (i) work equipment; (ii) a person at work who uses or supervises or manages the use of work equipment, or (iii) the way in which work equipment is used at work, and to the extent of his control.”[49]But in the present case Mr Albin Smith was not a householder. He was the contract manager for the Forestry Commission and thus outside the saving provisions of regulation 3(4). So far as the respondent was concerned Mr Smith was the emanation of the Forestry Commission, the person with whom the respondent had contact when he was on the job, and it is the case for the respondent that, for the purposes of regulations 3(3)(b) Mr Smith was a person who had control to some extent of the respondent’s use of his Land Rover.[50]When the Forestry Commission decided to instruct a contractor to carry out the particular fencing work on which the respondent was engaged at the time of his accident they carried out a survey, which enabled them to decide where the fence was to be erected, what type of fence was to be erected, who was to supply the materials (mostly the contractor) and how the materials were to be brought up to the points at which they were to be used. So Schedule 2 Part I to contract No FM 48/04, provided in the section headed “Specification”– “(d) The materials will be taken to the fence line by helicopter or all-terrain vehicle, by National Trust Staff.” The respondent tendered for the work. His quotation is dated 28th December 2003. He was successful, and, to complete the formalities, he signed Schedule 2 on 19th January 2004, probably about one hour before his accident. So undoubtedly the documentation did indicate that the Forestry Commission, not the contractor was to bear the burden of taking the materials to the fence line, and that they contemplated discharging that burden by helicopter or an all-terrain vehicle (ATV) supplied by the National Trust. Whether that was a term of the contract, or merely an indication in the contract documentation of what was to happen, might be debatable, but Mr Richard Davies QC, for the appellants, accepted that it was initially a term of the contract. However, as he pointed out, the situation on the ground was more fluid than the documentation might suggest. Access to part of the fence line was so difficult that a helicopter would undoubtedly be required to take materials to that part. Indeed, as the respondent said in his third witness statement, some time prior to 19th January 2004 he had gone with a representative of the National Trust to peg out where air-lifted bundles were to be dropped. Other parts of the fence line were not so inaccessible, and it was clearly envisaged by both Mr Smith and the respondent that materials could be got up to those other parts of the fence line either by means of an ATV supplied by the National Trust or by the respondent using his own adapted Land Rover which, as they both knew, he had used on many previous occasions. In the same witness statement the respondent said– “Approximately one week before the start date I spoke to Albin Smith and discussed how I was to do the job, including the use of my Land Rover and nothing was said. Albin Smith did say, initially when he asked me to quote for the job that the National Trust would provide track machines if necessary but I mentioned to him a week before the accident that I was intending to use my Land Rover as I had done on many previous jobs, and he did not say anything negative in that regard.” Later in that statement the respondent said– “I always did everything on my jobs and Albin Smith had no real input except for jobs in the Goyt Valley in 2003 and Rainow in 2002 when Albin Smith asked if I needed to use a quad bike and an assistant and Dave Jones was provided for me.” At the end of the statement the respondent reverted to those earlier occasions, saying that Albin Smith– “had asked if I needed a quad bike and provided the soft track machine with driver for two jobs in the Derwent Valley not far from Alport.” When giving evidence the respondent said that on previous occasions when an ATV had been used it was the Forestry Commission who decided if it was necessary and supplied it. That is what was accepted by the judge, but without reference to what the respondent had said in his witness statements.[51]On the day of the accident the respondent began work at about 2 pm. He was being assisted by Mr Charles Davies, who had worked with the respondent on many occasions. The respondent used the Land Rover to transport materials, and at about 3 pm Albin Smith arrived on the site. He and the respondent got into the respondent’s larger van to discuss the contract and to sign the contract documents. Mr Davies waited outside. In the respondent’s 4th witness statement he explained why, up to that point, he had been using the Land Rover. He said– “I didn’t want to bother the National Trust with this particular job because I thought it would be pretty straight forward with the Land Rover. The bank in question however was much steeper than it seemed at first when you actually drive on it, especially when it is wet and slippy with the moss. However, it never entered my mind that the Land Rover would slip otherwise I would not have taken on the job in the Land Rover.” In the witness box the respondent explained that it was after Mr Smith had gone that he “started to struggle with the Land Rover”. If an ATV has been available he would have used it, but he had not asked for one because right up to the time of the accident he believed he could cope using the Land Rover. For a time he was able to do so because, according to Mr Davies, after Albin Smith had gone the respondent had been up to the tree line where Mr Davies was working on two or three occasions before the accident, which, according to the appellant’s accident report, occurred at about 4 pm.[52]I have looked at the evidence in a little detail because, when that is done, it seems to me to be clear that despite what was said in the contract documentation the appellants never did in practice undertake the whole of the burden of taking materials to the fence line, and the respondent did not expect them to do so. In contractual terms that might be said to have resulted from a consensual variation to the contract, but for present purposes the precise contractual position does not matter. What matters is that the appellants left it to the respondent to decide whether he could safely move materials to the fence line with his Land Rover, and he was a very experienced fencer, plainly capable of making such a judgment. He was to erect a fence over two kilometres long. There would be stretches of the fence which he would not be able to reach by Land Rover, and the appellants left it to the respondent to indicate when an ATV or helicopter would be required. Nothing in the 1998 regulations required them to do otherwise. The case for the respondent, accepted by the judge, really proceeds upon the basis that the appellants were locked into their original contractual undertaking, and that by failing to give effect to it they were not exercising the control over the respondent’s use of his Land Rover which regulation 3(3) required them to exercise. I disagree. It seems to me that as a result of the way in which the relationship had evolved Albin Smith cannot be criticised for departing when he did, leaving it to the respondent to let him know when he required further assistance. So, when the accident happened about three quarters of an hour later, the appellants had no control over the respondent’s actions, and cannot therefore be said to have been in breach of regulation 3(3). This is not a case of turning a blind eye. The condition precedent to the imposition of the statutory obligation, namely the existence of control to at least some extent was not satisfied, so, in my judgment, the appeal should be allowed on all three of the appellants’ grounds of appeal.[53]I agree that this appeal should be allowed for the reasons given by Richards LJ.

Cited in 1 later judgment