Ceva Logistics Ltd v Lynch & Anor [2011] EWCA Civ 188

Case No B3/2010/1091[2011] EWCA Civ 188IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN’S BENCH DIVISION
Venue BIRMINGHAM DISTRICT REGISTRY
HIS HONOUR JUDGE OWEN QC
9BM90155
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 25/02/2011
Before
LORD JUSTICE MUMMERYLORD JUSTICE MOORE-BICKLORD JUSTICE JACKSON
Between
CEVA LOGISTICS LIMITEDAppellant/ First DefendantMARK ANTHONY LYNCHFirst Respondent/ Claimant
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Lawrence West QC (instructed by Weightmans LLP) for AppellantMr Bruce Silvester and Ms Kate Balmer (instructed by Irwin Mitchell) for First RespondentMr Richard Moat (instructed by Hugh James Solicitors) for Second RespondentHearing Hearing date: Friday 28 th January 2011
JudgmentLord Justice Jackson :
[1]This judgment is in seven parts, namely: Part 1. Introduction, Part 2. The Facts, Part 3. The Present Proceedings, Part 4. The Appeal to the Court of Appeal, Part 5. Breach of Statutory Duty, Part 6. Duty of Care, Part 7. Apportionment.

Part 1. Introduction

[2]This is an appeal by the owner and operator of a warehouse against a finding that it was in breach of statutory duty to a visiting electrician, who suffered injury on the premises.[3]The statutory provisions which are relevant to this appeal are contained in the Workplace (Health, Safety and Welfare) Regulations 1992, to which I shall refer as “the 1992 Regulations”.[4]The 1992 Regulations were made by the Secretary of State in the exercise of powers conferred on her by the Health & Safety at Work etc Act 1974.[5]Regulation 4 of the 1992 Regulations provides: “(1) Every employer shall ensure that every workplace, modification, extension or conversion which is under his control and where any of his employees works complies with any requirement of these Regulations which-(a) applies to that workplace or, as the case may be, to the workplace which contains that modification, extension or conversion; and(b) is in force in respect of the workplace, modification, extension or conversion. (2) Subject to paragraph (4), every person who has, to any extent, control of a workplace, modification, extension or conversion shall ensure that such workplace, modification, extension or conversion complies with any requirement of these Regulations which – (a) applies to that workplace or, as the case may be, to the workplace which contains that modification, extension or conversion; (b) is in force in respect of the workplace, modification, extension, or conversion; and(c) relates to matters within that person’s control. (3) Any reference in this regulation to a person having control of any workplace, modification, extension or conversion is a reference to a person having control of the workplace, modification, extension or conversion in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).” (a) applies to that workplace or, as the case may be, to the workplace which contains that modification, extension or conversion; and (b) is in force in respect of the workplace, modification, extension or conversion. (a) applies to that workplace or, as the case may be, to the workplace which contains that modification, extension or conversion; (b) is in force in respect of the workplace, modification, extension, or conversion; and[6]Regulation 17 of the 1992 Regulations provides:
“(1) Every workplace shall be organised in such a way that pedestrians and vehicles can circulate in a safe manner. (2) Traffic routes in a workplace shall be suitable for the persons or vehicles using them, sufficient in number, in suitable positions and of sufficient size. (3) Without prejudice to the generality of paragraph (2), traffic routes shall not satisfy the requirements of that paragraph unless suitable measures are taken to ensure that – (a) pedestrians or, as the case may be, vehicles may use a traffic route without causing danger to the health or safety of persons at work near it; (b) there is sufficient separation of any traffic route for vehicles from doors or gates or from traffic routes for pedestrians which lead onto it; and (c) where vehicles and pedestrians use the same traffic route, there is sufficient separation between them. ” (a) pedestrians or, as the case may be, vehicles may use a traffic route without causing danger to the health or safety of persons at work near it; (b) there is sufficient separation of any traffic route for vehicles from doors or gates or from traffic routes for pedestrians which lead onto it; and (c) where vehicles and pedestrians use the same traffic route, there is sufficient separation between them. ”
[7]After these introductory remarks, I must now turn to the facts.

Part 2. The Facts

[8]The claimant is a qualified electrician, now aged 52. At the material time the claimant was employed by his brother, the second defendant, who traded as S.W. Lynch Electrical Contractors.[9]The first defendant owns and operates a warehouse at Wellesbourne in Warwickshire, to which I shall refer as “the warehouse”. At the material time the first defendant’s name was TNT Logistics UK Limited. The first defendant’s name is now Ceva Logistics Limited.[10]For many years the second defendant had a contract with the first defendant for the maintenance of electrical items at the warehouse. The claimant, in the course of his employment, regularly visited the warehouse, in order to carry out electrical work.[11]The warehouse is laid out so that in one section there is a series of very narrow aisles (“VNAs”), which pass between tall storage racks. At one end of the VNAs there is a wall or a fire break. Accordingly it is only possible for the VNAs to be accessed from the top end. Each rack on either side of the VNAs is identified by two letters, such as CH, CJ, DA or DB. Employees of the first defendants drive vehicles known as “reach trucks” along the VNAs for the purpose of collecting or depositing goods.[12]One other feature of the warehouse should be mentioned. Two fire routes run the entire length of the warehouse. These fire routes intersect all the aisles (both VNAs and wider aisles) at right angles. The fire routes are even narrower than the VNAs. No vehicle can pass along the fire routes, although a person can do so on foot.[13]On 19th September 2006 the claimant visited the warehouse for the purpose of inspecting the lights in the roof and, where necessary, replacing them. The claimant drove around the warehouse in a vehicle known as a cherry picker. This vehicle enabled him to reach up to the roof when he needed to access the lights.[14]In the early afternoon the claimant parked his cherry picker at the end of the VNA between racks DE and EF. The claimant did some work in that VNA. He then needed to access the next VNA, namely that lying between racks DD and DC, in order to identify the precise location of a defective light. The safest course would have been for the claimant to return to his cherry picker and drive forwards a few yards. If the claimant parked his cherry picker at the end of a VNA, this gave the claimant the necessary access. Also, and more importantly, it blocked the end of the VNA, so that reach trucks could not be driven along the route where the claimant was working. Unfortunately the claimant did not take this course on that occasion. Instead the claimant made his way on foot along a fire route from the VNA between racks DE and EF to the VNA between racks DC and DD. Shortly after entering that VNA, the claimant was struck by a reach truck, which was driven by Mr Edward Coombes, an employee of the first defendant. The claimant did not see the reach truck before the accident, nor did Mr Coombes see the claimant. In view of the configuration of the reach truck and the VNA, there is no criticism of Mr Coombes.[15]The claimant suffered serious injuries to his upper limbs in the accident. The claimant took the view that both defendants were responsible for his injuries. Accordingly he intimated a claim for damages against the defendants and their insurers. Each of the defendants denied liability. In those circumstances the claimant commenced the present proceedings.

Part 3. The Present Proceedings

[16]By a claim form issued in the Birmingham District Registry on 8th July 2009 the claimant claimed damages for personal injury against both defendants, alleging negligence and breach of statutory duty. In his particulars of claim the claimant alleged that the first and second defendant failed to provide a safe system of work. In particular, they failed to secure a proper separation between pedestrians and vehicles in the warehouse. In paragraph 6(x) of his particulars of claim the claimant pleaded the following allegation of negligence and breach of statutory duty against the first defendant:
“(x) By their servant or agent the floor manager, David Boyden: …. (b) At a meeting with Steve Lynch of the Second Defendants, prior to the Claimant’s accident and during which working systems were discussed, concluded the conversation with words to the effect that the First and Second Defendants would “work around one another”.”
[17]The defendants served defences denying liability, blaming each other and alleging contributory negligence on the part of the claimant. In relation to paragraph 6(x) of the particulars of claim, the second defendant pleaded as follows in paragraph 3(ix) of his defence:
“As a result of the matters set out above the First Defendant and Second Defendant should only have worked in proximity with each other if it was safe for them to do so. Insofar as this could not be achieved, the First Defendant was to organise a safe system of work. It is in this context that the Second Defendant accepts that the First Defendant and the Second Defendant agreed to work around the First Defendant’s works activities. If proper checks were undertaken neither would be working in proximity to the other.”
[18]Since there were serious issues between the parties on liability, very sensibly the court ordered that the question of liability should be dealt with as a preliminary issue.[19]The trial of the preliminary issue was held at the Birmingham Civil Justice Centre in April 2010 before HHJ Owen QC (“the judge”). The claimant gave evidence in support of his claim. He asserted that he was present during the conversation between David Boyden and the second defendant, as pleaded in paragraph 6(x) of the particulars of claim. The claimant also gave evidence that it was his regular practice to access VNAs on foot, without blocking off the ends. The claimant said that he had never been warned not to do this or given any proper instruction about safety matters.[20]The first defendant called a number of witnesses to explain the health and safety arrangements at the warehouse and also the measures taken after the claimant’s accident to prevent any repetition. However, the first defendant did not call Mr Boyden to rebut the allegation pleaded in paragraph 6(x) of the particulars of claim.[21]The second defendant did not give evidence or call any witnesses on his behalf.[22]The judge gave judgment on 20th April 2010. The judge accepted the gist of the claimant’s evidence. In paragraph 57 the judge made the following findings of fact:
“The question arises therefore as to whether I am satisfied, on the balance of probabilities, that the evidence given by the claimant as to the manner in which he was permitted to go about his work and, as he understood it, was the method by which he would be expected by the first defendant to go about that work is accurately described by him. I am satisfied that the claimant’s testimony on this question is accurate and reliable. I am satisfied that his lack of a true understanding as to the danger posed by going about his work on foot in the way in which he went about it (it appears without a care) is explained by the absence of any proper briefing which the first defendant itself expected would have been given. I am satisfied on the evidence that no such proper briefing had been given and which would have met the standard expected, for example either by Mr Gould or by Mr Davies.”
[23]The judge then turned to the question of liability. He held that the first defendant controlled the warehouse for the purposes of regulation 4 of the 1992 Regulations, and that this control extended to outside contractors, such as the second defendant’s employees, who were working in the warehouse. The judge held that this degree of control triggered the operation of regulation 17.[24]On the basis of his findings of fact set out in paragraph 57 of the judgment, the judge held that the first defendant was in breach of its statutory duty to the claimant imposed by regulation 17 of the 1992 Regulations. The judge rejected the contention that the first defendant also owed a separate common law duty of care to the claimant.[25]The judge held that the second defendant, as employer, owed a duty of care to the claimant and was in breach of that duty of care by failing to provide a safe system of work. The judge apportioned liability between the defendants as follows. The first defendant was 60% liable and the second defendant was 40% liable. The judge also held that the claimant was contributorily negligent to the extent of 25%.[26]The first defendant was aggrieved by the findings of liability and apportionment against itself. Accordingly, it appealed to the Court of Appeal.

Part 4. The Appeal to the Court of Appeal

[27]By an appellant’s notice dated 10th May 2010 the first defendant appealed to the Court of Appeal, asserting that the judge erred in holding that the first defendant was in breach of statutory duty, alternatively in apportioning such a high percentage of liability to the first defendant.[28]The position of the claimant and the second defendant on this appeal is that they both support the judge’s decision. They each accept the degree of responsibility for the accident which the judge has apportioned to them. They also seek to support the judge’s decision on an additional ground, namely that the first defendant owed, and was in breach of, a common law duty of care to the claimant.[29]Thus three issues arise on this appeal, namely breach of statutory duty, duty of care, and apportionment. Logically, I must first address breach of statutory duty.

Part 5. Breach of Statutory Duty

[30]Mr Lawrence West QC, who appears for the first defendant, submits that the first defendant’s duty under regulation 17 of the 1992 Regulations was owed to its own employees, but not to the employees of other contractors working on site. Accordingly, the first defendant owed no statutory duty to the claimant under regulation 17.[31]Mr West formulates his argument in this way. Regulation 4 identifies the persons by whom and to whom duties are owed under the regulations. Regulation 4(1) has no application in this case because it deals with duties owed by employers to their own employees. Regulation 4(2) is of wider ambit, because it applies to everyone who controls a workplace and it imposes duties both to employees and non-employees. Thus the critical question is whether regulation 4(2) has the effect of imposing on the first defendant a duty owed to the claimant under regulation 17.[32]Mr West accepts that in September 2006 the first defendant was in control of the warehouse where the claimant was working. Mr West accepts that the requirements of regulation 4(2)(a) and regulation 4(2)(b) are met. However, he submits that regulation 4(2)(c) is not satisfied. This is because the requirements of regulation 17, in so far as they impinge upon the claimant, did not “relate to matters within that person’s [i.e. the first defendant’s] control”.[33]Mr West submits that only the second defendant, as employer, could instruct the claimant how to do his work. The first defendant had no authority to do so. In particular, the first defendant had no power to instruct the claimant not to enter a VNA unless the end of the VNA was blocked off. Thus, in relation to the claimant, the first defendant was powerless to implement the requirement of regulation 17.[34]In support of this argument Mr West relies upon the decisions of the Court of Appeal in King v RCO Support Services Limited [2001] ICR 608 and McCook v Lobo et al [2002] EWCA Civ 1760.[35]I do not accept these submissions. It is of course true that the second defendant was an independent contractor engaged to carry out electrical works at the warehouse. Accordingly, it was for the second defendant, not the first defendant, to instruct the second defendant’s electricians as to how they should carry out the actual electrical work: for example, what tools they should use and what precautions they should take against electrocution. Nevertheless, that circumstance does not mean that the second defendant had sole control over the claimant’s activities in the warehouse and the first defendant had no control.[36]The warehouse was a large building, with vehicles traversing aisles and many operations taking place 24 hours per day, seven days per week. Many people had reason to be in the warehouse, some employed by the first defendant and others employed by outside contractors or companies, who had reason to visit the warehouse. It was essential that rules be in place, in order to keep safe everyone whose business it was to be in the warehouse.[37]The dangers which existed in a warehouse operation of that nature are self-evident. The risk of a pedestrian being hit by a moving vehicle is just one example of those dangers.[38]Only one person or organisation could make and enforce rules of conduct for everyone who entered the warehouse. That was the first defendant. No one whose business took them to the warehouse could reasonably object to complying with such rules. Indeed this was expressly recognised both by the first defendant and by the claimant’s nephew, Stuart Lynch, a fellow employee of the second defendant.[39]When Stuart Lynch came to work at the warehouse in December 2005, he was given a copy of the first defendant’s Safety Code for Contractors (“the Safety Code”). The Safety Code includes the following provisions: “2.1 TNT expects any contractor to take all reasonable precautions to ensure the health and safety of their own employees, TNT staff, customers and third parties. 2.2 Before any contractor is allowed to work on TNT controlled premises the following documentation must be received, where applicable - Health and Safety Policy Statement (if there are 5 or more employees) - Public Liability Insurance (minimum indemnity limit of £2 million) - Employers’ Liability Insurance as laid down in the Employer’s Liability (Compulsory Insurance) Act 1969 in respect of any of the contractor’s own employees entering TNT’s premises - Any other insurance cover as laid down by TNT in the form of the contact applicable to the work being carried out by the contractor - Method Statement/Risk Assessments for the work to be carried out - Corgi Registration (for gas work) - Electrical accreditation (for electrical work) - Any specialist accreditation - Any other documentation deemed necessary by TNT Logistics UK Limited3.1 The contractor must report to the main reception and ask for the manager responsible for the area where the work is to be undertaken before commencement of such work.3.2 The contractor will be supplied with a copy of the site safety rules and he must read, understand and accept such before commencement of work.3.3 Contractors must, at all times observe the safety rules and the instructions given by the responsible manager who will enforce the company safety policy at all times.3.4 If, in the opinion of the contractor or TNT site management, the contractor’s work will present real or potential hazards, the contractor must inform TNT management beforehand of the arrangements he needs to make to ensure that safety of TNT employees, its customers and third parties.3.5 Contractors must familiarise themselves with any of TNT’s health and safety arrangements, which may be relevant to the contractor’s activities.3.6 Where it is necessary for any company representatives to draw attention to a breach of law, site safety rules or the contractors own method statement, the contractor must ensure that full and effective action shall be taken to remedy the situation. If such action is not taken, the Company reserve the right to demand that the contractor ceases work and removes himself from the site.” - Health and Safety Policy Statement (if there are 5 or more employees) - Public Liability Insurance (minimum indemnity limit of £2 million) - Employers’ Liability Insurance as laid down in the Employer’s Liability (Compulsory Insurance) Act 1969 in respect of any of the contractor’s own employees entering TNT’s premises - Any other insurance cover as laid down by TNT in the form of the contact applicable to the work being carried out by the contractor - Method Statement/Risk Assessments for the work to be carried out - Corgi Registration (for gas work) - Electrical accreditation (for electrical work) - Any specialist accreditation - Any other documentation deemed necessary by TNT Logistics UK Limited[40]Stuart Lynch signed a statement at the end of the Safety Code, confirming that he had received the document and would abide by its provisions. This document illustrates the degree of control which the first defendant could, and in some instances did, exercise over the employees of visiting contractors. It is unfortunate that no similar copy of the first defendant’s Safety Code was given to the claimant when he came to work at the warehouse.[41]Let me turn now to the two authorities upon which Mr West relies.[42]In King v RCO Support Services Limited [2001] ICR 608 the claimant, a steam cleaning operative employed by the first defendant, was given the task of spreading grit over ice in the yard of a bus station belonging to the second defendant, a bus company. The claimant used a sack, barrow and a shovel to distribute the grit from a pile in the yard. When he had gritted two thirds of the yard, the claimant slipped and fell on un-gritted ice suffering personal injuries. He claimed damages against both his employer and the bus company for, inter alia, breach of statutory duty. The judge dismissed the claim against both defendants. The Court of Appeal allowed the claimant’s appeal against the employer but dismissed the claimant’s appeal against the bus company. The Court of Appeal held that, though the bus company did have a degree of control over the claimant’s workplace for the purposes of regulation 4(2) of the 1992 Regulations, the requirement in regulation 12(3) to keep the workplace free from any substance which might cause a person to slip did not relate to “matters within [the bus company’s] control”; and that, accordingly, the bus company was not liable to the claimant. Thus the claim against the bus company failed by reason of regulation 4(2)(c) of the 1992 Regulations.[43]This decision seems to be entirely explicable by reference to the facts of that case. The slippery ice was the very thing which the outside contractor, the claimant’s employer, was engaged to deal with. It was for that employer, not the bus company, to instruct the steam cleaning operative how he should deal with the slippery ice. There would be an analogy with the present case if the claimant had been injured by an electric shock. It is for the electrical contractor to instruct its employees how to avoid the risk of electrocution when they are repairing light fitments. Matters of this nature are not within the province of the warehouse owner.[44]I therefore conclude that King is of no assistance to the first defendant in this case. King merely illustrates that a visiting contractor is the party responsible for ensuring that its employees take proper care in relation to matters within their own specialist skill or sphere. Regulation 4(2) of the 1992 Regulations prevents a visiting contractor from shuffling that responsibility off onto the owner or occupier of the workplace.[45]In McCook v Lobo [2002] EWCA Civ 1760 a building in south London was being converted into a fish market with offices above. An employee of the contractor fell from a ladder and was injured. The Court of Appeal held that the building owner had no liability to the claimant under regulation 4(2) of the Construction (Health, Safety and Welfare) Regulations 1996 (“the 1996 Regulations”). Regulation 4(2) provided:
“It shall be the duty of every person (other than a person having a duty under paragraph (1) or (3)) 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. ”
In explaining the operation of regulation 4(2)

Judge LJ stated at paragraph 16:

“In principle it is clear that the obligation to perform the duty provided by the regulation cannot be avoided by abdicating responsibility. If compliance is required, it is not an answer to contend that the duty was ignored and thus did not arise. The requisite level of control before the duty does arise, however, is linked to the way in which construction work is carried out and it is confined to construction work within the individual’s control. For this purpose the obvious person who controls the way in which construction work on site is carried out is an employer. The employer owes express duties under reg 4(1). That, therefore, identifies the starting point. But someone who is not an employer may also be bound by the statutory obligation under reg 4(2). Whether the appropriate level of control over the work is or should be exercised by an individual other than an employer so as to create the duty to comply with the obligations under reg 4(2) is, in my judgment, a question of fact. It is not answered affirmatively by demonstrating that an individual has control over the site in a general sense as an occupier, or that as the occupier of the site he was entitled to ask or require a contractor to remove obvious hazards from the site. The required control is related to control over the work of construction.”
[46]Hale LJ expressed similar views. At paragraph 28 she said:
“Regulation 4(2) of the 1996 Regulations to my mind depends entirely on the question of factual control. Of course if a person has factual control and chooses not to exercise it, they cannot thereby escape liability. But there will still be the question of fact as to whether such control exists. In the circumstances of a client who is contracting with an apparently reputable contractor to conduct construction work in his premises, there is little reason to doubt the straightforward factual finding made by the judge that the client was not in control of the way in which the claimant was doing his work.”
[47]In my view, regulation 4(2) of the 1996 Regulations and regulation 4(2) of the 1992 Regulations are similar in their effect. Regulation 4(2)(c) of the 1992 Regulations limits the responsibility of the workplace owner or occupier to matters in respect of which it is, or should be, able and competent to give instructions to visiting contractors and their employees.[48]The next question to consider is whether, on the facts as found by the judge in this case, the first defendant was responsible for breach of regulation 17 of the 1992 Regulations. In my view the answer is plainly yes.[49]The claimant gave evidence that he and others frequently used the fire routes in order to pass between the VNAs. No one ever told him not to do this. It is clear from paragraph 57 of the judgment that the judge accepted this evidence. Thus it came about that the first defendant permitted pedestrians and reach trucks to be in VNAs at the same time. It is quite true, as Mr West pointed out, that the first defendant’s witnesses gave a different account of matters. However, the judge rejected that evidence. It is also significant that the first defendant did not call Mr Boyden to give evidence. Thus there was no challenge to the claimant’s evidence concerning the unsatisfactory arrangement made by Mr Boyden for co-ordination of the activities of the first defendant’s employees and the second defendant’s employees. The arrangement simply was that they would work around one another.[50]Let me now draw the threads together. The combined effect of regulations 4(2) and 17 of the 1992 Regulations was that the first defendant owed a statutory duty to the claimant to ensure that there was proper separation of vehicles and pedestrians in the warehouse. The first defendant was in breach of that statutory duty in that it permitted the claimant to enter VNAs when reach trucks were or may have been operating there. The first defendant ought to have instructed the claimant to block off the end of any VNA before he entered it. The first defendant failed so to instruct the claimant. Instead the first defendant allowed the claimant to persist in walking down fire routes and entering unprotected VNAs. I would therefore uphold the judge’s finding of breach of statutory duty.[51]In those circumstances the first defendant’s appeal on liability must fail. The issue raised by the claimant’s respondent’s notice does not, strictly speaking, arise. I shall therefore deal more briefly with the arguments concerning duty of care.

Part 6. Duty of Care

[52]Every employer owes a duty of care to its own employees to provide a safe system of work. The employer also owes a more limited duty of care to the employees of other organisations who operate in the workplace which that employer controls.[53]The claimant, supported by the second defendant, contends that the judge erred in failing to hold that the first defendant owed a duty of care to the claimant in addition to its statutory duty under the 1992 Regulations. The first defendant resists that contention.[54]A large number of authorities have been cited in relation to this issue, which ultimately is of academic interest only in the present appeal. The authorities are identified in the skeleton arguments. The court has been taken on a rapid tour by Mr West through the House of Lords decisions in Ferguson v Welsh [1987] 1WLR 1553, Caparo Industries Plc v Dickman [1990] 2 AC 605 and Tomlinson v Congleton Borough Council [2003] UKHL 47; [2004] 1 AC 46, as well as many Court of Appeal and first instance decisions. I shall not embark upon a review of those authorities. The general principles of negligence established by the House of Lords are well known. The application of those principles to specific factual situations far removed from the present case is not of assistance.[55]In the present case, for the reasons set out in Part 5 above, it was plainly the responsibility of the first defendant to co-ordinate the various activities which were taking place in the warehouse. It was the responsibility of the first defendant to ensure that its own employees and the employees of external contractors did not come into collision. In particular it was for the first defendant to ensure that there was safe and separate circulation of pedestrians and vehicles. In my view, the first defendant owed a duty of care to the claimant at common law which was concurrent with its statutory duty. I quite accept that the second defendant was not a “cowboy operator”, as the judge pointed out in paragraph 69 of the judgment. The first defendant was entitled to assume that the second defendant gave proper instruction to his employees, including the claimant. Nevertheless that circumstance did not absolve the first defendant from its responsibility to ensure safe co-ordination between the activities and movements of all individuals working within the warehouse.[56]For these reasons, therefore, I would hold that the first defendant owed to the claimant a common law duty of care and was in breach of that duty, essentially for the same reasons as set out in Part 5 above.[57]In these circumstances, the only remaining issue to consider is apportionment.

Part 7. Apportionment

[58]In addressing the issues of apportionment, the judge summarised the respective responsibilities of the defendants as follows in paragraph 76 of the judgment:
“… On the one hand, the first defendant has actual control over that which goes on in its premises and bore a statutory duty for that very reason which demonstrates, by their breach, substantial causal potency and blameworthiness for the reasons I have already indicated. On the other hand, the second defendant was the claimant’s employer with a clear and non-delegable duty which appears not to have been addressed seriously, if at all, by the second defendant.”
[59]Weighing up these factors, the judge apportioned 60% of the responsibility to the first defendant and 40% of the responsibility to the second defendant.[60]This court does not readily entertain appeals on apportionment, where the judge has had all relevant factors in mind and has not been influenced by irrelevant factors. The trial judge is in the best position to assess the percentages of responsibility.[61]In the present case the judge did indeed have all the relevant factors in mind. He set them out in a lengthy judgment, spanning 33 pages. Mr West has not pointed to any error of principle made by the judge in carrying out the apportionment exercise. I would therefore dismiss this element of the appeal.[62]In the result therefore, if my Lords agree, the judge’s decision on liability will stand. The claimant will recover damages for his injuries, less a discount of 25% for contributory negligence. Those damages will be paid as to 60% by the first defendant and 40% by the second defendant. Accordingly, I would dismiss this appeal.

Lord Justice Moore-Bick :

[63]The circumstances giving rise to this appeal have been described by Jackson L.J., whose account I gratefully adopt.[64]The legislative provisions which lie at the heart of the appeal are regulations 4 and 17 of the Workplace (Health, Safety and Welfare) Regulations 1992 (“the Regulations”). Regulation 4(2) obliges every person who has, to any extent, control of a workplace to ensure that it complies with any applicable requirement of the Regulations which relates to matters within his control.[65]In the present case the claimant sustained injury as a result of failing to comply with the first defendant’s rules governing the movement of pedestrians and traffic in its warehouse. In order to identify defective lights that required replacement it was more convenient for him to walk along the aisles (known as “VNAs”) between the stacks of palletted goods instead of using the slower and rather more cumbersome “cherry picker” that was needed to gain access to the lights themselves. He preferred to use the transverse fire aisles to move from one VNA to another rather than to inspect the lights in one aisle at a time, having first blocked the entrance to the aisle with the cherry picker to prevent lift trucks from entering and possibly injuring him. Using the fire aisles was dangerous, however, because it enabled him to emerge without warning into the path of a reach truck using the neighbouring VNA.[66]Mr. West Q.C. submitted that the expression “matters within that person’s control” in regulation 4(2)(c) refers to matters over which the employer is entitled to exercise control. The claimant was employed by the second defendant, who alone had the right to direct his method of working. The first defendant had no right to tell the claimant how to do his job and therefore the way in which he moved around the warehouse was not a matter within the first defendant’s control.[67]In my view that argument is based on a misunderstanding of regulation 4(2). It has been held on a number of occasions that whether an employer has control to any extent over the relevant workplace or any part of it is a matter of fact. In McCook v Lobo [2002] EWCA Civ 1760 the court was concerned with regulation 4(2) of the Construction (Health, Safety and Welfare) Regulations 1996, which impose a duty on 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 the regulations “insofar as they relate to matters which are within his control.”

Judge L.J. said in paragraph 16:

“Whether the appropriate level of control over the work is or should be exercised by an individual other than an employer so as to create the duty to comply with the obligations under regulation 4(2) is, in my judgment, a question of fact.”
[68]Similarly, in paragraph 28 Hale L.J. said:
“Regulation 4(2) of the 1996 Regulations to my mind depends entirely on the question of factual control. Of course if a person has factual control and chooses not to exercise it, they cannot thereby escape liability. But there will still be the question of fact as to whether such control exists.”
[69]In my view the nature and purpose of the Regulations point clearly to the conclusion that they are also intended to impose on those who have the ability to exercise control over conditions in the workplace to any extent a duty to make it reasonably safe for those who use it by ensuring compliance with the Regulations to the extent that they exercise control. That was how the judge interpreted the Regulations and he was right to do so.[70]In the present case the first defendant had the ability to control the movement of vehicles and pedestrians within the warehouse. It could not tell the claimant how to do his job, insofar as that involved identifying and replacing failed lamps, but it had both the right and the ability to control the way in which he moved around the warehouse for that purpose. It owed a duty under Regulation 17 to the claimant and to anyone else who might be there to organise the movement of vehicles and pedestrians in such a way as to ensure that they could circulate in a safe manner and it could by its control of the premises enforce any rules it might make to achieve that end.[71]The decision in King v RCO Support Services Limited [2001] I.C.R. 608 is not inconsistent with that conclusion. The basis of the claim against the bus company was that it was in control of the workplace, namely the yard, and was therefore under a statutory duty under regulation 12(3) of the Regulations to keep it free from any substance which might cause a person to slip. The court held that the claimant’s employer had the actual physical control of the gritting operation and that the bus company did not exercise control over the yard in relation to that matter. The outcome would, I think, have been different if the claimant had been injured by a bus because it is likely that the bus company had remained in control over the movement of buses in the yard.[72]I agree with Jackson L.J., therefore, that the first defendant owed the claimant a statutory duty in this case to ensure that there was proper separation of vehicles and pedestrians in the warehouse and that it was in breach of that duty in failing to draw to his attention its rules relating to pedestrian access to the VNAs.[73]I also agree with Jackson L.J. that the first defendant owed a duty of care to the claimant at common law to take reasonable steps to ensure that he did not suffer personal injury while working in the warehouse. The claimant was employed by the second defendant, who might reasonably have been expected to draw the first defendant’s safety requirements to his attention, if he had been made aware of them. In fact, however, the judge’s findings show that it was the practice of the first defendant to give safety briefings when contractors arrived for work and that for a job of this kind it would normally require the contractor to provide a method statement describing how it proposed to carry out the work and also a risk assessment. The judge found, however, that neither was obtained in this case and that a proper safety briefing was not given either to the second defendant or to the claimant. The result was not simply that the first defendant failed to live up to its own high standards, but that the claimant was not made aware of the precautions he needed to take in order to avoid injury. In those circumstances I agree that the first defendant failed to discharge its duty of care to him. The fact that the second defendant was a reputable contractor does not affect the matter, because the first defendant failed to put him in a position to give the claimant as his employee the necessary safety instructions himself.[74]As far as apportionment is concerned, there is nothing I wish to add to what Jackson L.J. has said. I agree that the appeal should be dismissed.

Lord Justice Mummery:

[75]I agree.

Cited in 1 later judgment