“Organisation and planning 4. - (1) Every employer shall ensure that work at height is - (a) properly planned; (b) appropriately supervised; and (c) carried out in a manner which is so far as is reasonably practicable safe, and that its planning includes the selection of work equipment in accordance with regulation 7.” and that its planning includes the selection of work equipment in accordance with regulation 7.”
“Thorough examination and inspection 9. - (1) Every employer shall ensure that before lifting equipment is put into service for the first time by him it is thoroughly examined for any defect unless either - (a) the lifting equipment has not been used before; and (b) in the case of lifting equipment for which [an EC declaration of conformity] [a declaration of conformity] could or (in the case of a declaration under [theLifts Regulations 2016 ]) should have been drawn up, the employer has received such declaration made not more than 12 months before the lifting equipment is put into service; or, if obtained from the undertaking of another person, it is accompanied by physical evidence referred to in paragraph (4). (2) Every employer shall ensure that, where the safety of lifting equipment depends on the installation conditions, it is thoroughly examined— (a) after installation and before being put into service for the first time; and (b) after assembly and before being put into service at a new site or in a new location, to ensure that it has been installed correctly and is safe to operate. (3) Subject to paragraph (6), every employer shall ensure that lifting equipment which is exposed to conditions causing deterioration which is liable to result in dangerous situations is - (a) thoroughly examined— (i) in the case of lifting equipment for lifting persons or an accessory for lifting, at least every 6 months; (ii) in the case of other lifting equipment, at least every 12 months; or (iii) in either case, in accordance with an examination scheme; and (iv) each time that exceptional circumstances which are liable to jeopardise the safety of the lifting equipment have occurred; and (b) if appropriate for the purpose, is inspected by a competent person at suitable intervals between thorough examinations, to ensure that health and safety conditions are maintained and that any deterioration can be detected and remedied in good time …”
“8. Every employer shall ensure that, in the case of - (a) a guard-rail, toe-board, barrier or similar collective means of protection, Schedule 2 is complied with …”
“1. Unless the context otherwise requires, any reference in this Schedule to means of protection is to a guard-rail, toe-board, barrier or similar collective means of protection. 2. Means of protection shall - (a) be of sufficient dimensions, of sufficient strength and rigidity for the purposes for which they are being used, and otherwise suitable; … 4. Any structure or part of a structure which supports means of protection or to which means of protection are attached shall be of sufficient strength and suitable for the purpose of such support or attachment.”
“12. - (1) This regulation applies only to work equipment to which regulation 8 and Schedules 2 to 6 apply. .. (3) Every employer shall ensure that work equipment exposed to conditions causing deterioration which is liable to result in dangerous situations is inspected— (a) at suitable intervals; and (b) each time that exceptional circumstances which are liable to jeopardise the safety of the work equipment have occurred, to ensure that health and safety conditions are maintained and that any deterioration can be detected and remedied in good time.”
“Suitability of work equipment 4. - (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. … Maintenance 5. - (1) Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair. …”
“(1) Nothing in this Part shall be construed - (a) as conferring a right of action in any civil proceedings in respect of any failure to comply with any duty imposed by sections 2 to 7 or any contravention of section 8; or (b). … (c) as affecting the operation ofsection 12 of the Nuclear Installations Act 1965 (right to compensation by virtue of certain provisions of that Act). (2) Breach of a duty imposed by a statutory instrument containing (whether alone or with other provision) health and safety regulations shall not be actionable except to the extent that regulations under this section so provide. (2A) Breach of a duty imposed by an existing statutory provision shall not be actionable except to the extent that regulations under this section so provide (including by modifying any of the existing statutory provisions). (2B) Regulations under this section may include provision for - (a) a defence to be available in any action for breach of the duty mentioned in subsection (2) or (2A); (b) any term of an agreement which purports to exclude or restrict any liability for such a breach to be void.] (3) No provision made by virtue of section 15(6)(b) shall afford a defence in any civil proceedings ... (4) Subsections (1)(a) [, (2) and (2A)] above are without prejudice to any right of action which exists apart from the provisions of this Act, and subsection [(2B)(a)] above is without prejudice to any defence which may be available apart from the provisions of the regulations there mentioned. (5) … (6) … [(7) The power to make regulations under this section shall be exercisable by the Secretary of State.]”
“You are employed as a 3.5 tonne Van Driver and you shall carry out such other role and/duties as the Company considers appropriate.”
“In this Act ‘employee’ means an individual who has entered into or works under (or, where the employment has ceased,worked under) a contract of employment. (2) In this Act “contract of employment” means a contract ofservice or apprenticeship, whether express or implied, and (if itis express) whether oral or in writing.”
“118. It is firmly established that, where the relationship has to be determined by an investigation and evaluation of the factual circumstances in which the work is performed, the question of whether work is performed by an individual as an employee (or a worker in the extended sense) or as an independent contractor is to be regarded as a question of fact to be determined by the first level tribunal.”
“11. The six weekly inspections (including those conducted by Trax) are also for general roadworthiness. This would include things like brakes, lights and driver controls. Ancillary safety equipment like upper deck guard rails are not routinely checked at those inspections although this could be specifically requested by the operator. 12. I am not able to say whether a LOLER inspection had been carried out in relation to the vehicle. I had seen the previous certificate from the 2016 inspection and had discussed it with Mr Carr. As an operator he was not initially aware of the LOLER inspection requirements. During one of my last conversations with him he told me that he had called the vehicle vendor and been advised that the inspections should be done every 6 months. I told him I agreed and that it should be done every 6 months due to people working at height. I do not know if a LOLER inspection would specifically cover the upper guard rails.”
“… I have added you to my google drive storage which shows the service planner and the template of the defect reporting system along with process for reporting any defects, there is also a document file for some of the documents that scanned (sic) whilst checking them. It was early days in the operation and as always was work in progress. Andrew was a pleasure to work with as he really tried to understand his responsibilities around the compliance and maintenance of his vehicles. He had only just started to use the vehicle E4BTR as it had recently been bought and had spent time being painted and prepared ready for work, in fact I had not even seen the vehicle as every time I went to visit Andrew it was being worked on ready for the start of the operation. The previous six weekly inspections were done with one being a couple of weeks late but it had MOT’d in August and a six weekly inspection done in October, it was due again at the end of November but I had not visited Andrew after that date to confirm the inspection had been completed and the accident happened in December. My role as External Transport Manager is to check that vehicles are maintained according to the service schedule, drivers hours are being adhered to, drivers are completing daily walk around checks, speed limits are being adhered to and vehicles are not overloaded. Up until the point of the accident the vehicle was being inspected correctly with one being done late but we had spoken about that agreed that it would not happen again. The training side of things was to be done by Brands Transport as the safe loading of vehicles is not something I have any knowledge of, I generally do not offer training to any of my clients apart from the use of Tachograph equipment and drivers hours. …”
“By signing the (sic) for the relevant declaration below (as per your answer to section 5 [viz, ’How many hours per week will you spend on your transport manager duties ?’) you are confirming your status as an internal transport manager, an external transport manager, or both, and understand that your duties include: … Vehicle administration – including ensuring that vehicle maintenance records are retained for a period of no less than 15 months, ensuring that vehicles are specified as required and operator licence discs are current and displayed correctly; ensuring safe loading with appropriate indicators fitted; that tachograph calibrations are up to date and displayed, that there are up to date insurance certificates, a suitable maintenance planner is complete and displayed with preventative maintenance dates at least 6 months in advance, to include the Annual Test and other testing or calibration dates. Vehicle engagement – ensuring that vehicles and trailers are kept in a fit and roadworthy condition, that defects are either recorded and repaired promptly and where not roadworthy are taken out of service; to make vehicles and towed equipment [available]for safety inspections, service, repair and statutory testing available at the appropriate times and within the notified O-licence maintenance intervals; to liaise with maintenance contractors, manufacturers, hire companies as might be appropriate. Ensuring that vehicles and trailers are parked at the nominated operating centre(s) when not in use. …”
“Q. … Presumably, that’s in the early stages, what, of the business being set up? A. I’m not entirely sure what that means, as in, ‘Early stages’, but I presume so. Q. Let me put it this way, would it be your view that it would be right that in the early stages of a business such as this one, it is important the system is regularly monitored by [inaudible]? A. Certainly, absolutely. You need to make sure that he’s doing things right. And the good thing with Andrew is, even though he wasn’t operating, he was fulfilling his obligations of the six-weekly inspections”
“Q. So, there’s height implications, clearly in the physical size and height of the vehicle. Were there height implications in any other way, as far as you were concerned? At that point, when you first became aware of the fact that you were advising in respect of a car transporter? A. From my side, from the compliance side of things then, I wouldn’t have thought there was much difference. But if you’re asking about the health and safety side of things, which I don’t tend to get involved in the actual health and safety regulations. Because I’m not trained in that. I did health and safety years ago. I have not got and I don’t advise people on health and safety. There would be that issue for the company, because there would be people working at height.”
“Q. … ‘It’s during one of my last conversations with him, he told me that he called the vehicle vendor’, that’s ECM? A. Yes. Q. ‘And being advised the inspection should be done every six months. I told him I agreed and that it should be done every six months, due to people working at height”
“Q. Going back to the point, the LOLER regulations and the certificate, if one looks on the face of it, it relates specifically to the vehicle, doesn’t it? A Yes. Q. It doesn’t relate to a lifting system of work. It doesn’t relate to the system of work that’s used to lower cars, does it? A. It relates to the equipment on the vehicle that is doing the lifting, yes. Q. Which is an integral part of the trailer? A. Yes. Q. Which Andrew was asking your advice on and you were giving him advice on? A. Which bit was Andrew? Andrew was asking me, he was asking me to make him compliant. Q. Mm hmm? A. To the- Q. Sorry, just stop there for a moment. Andrew was asking you to make him compliant, wasn’t he? A. No. You stopped me in the wrong place there. Andrew was asking, I was put in place to make sure that Andrew complied with his operator’s licence. That is what I am there for, to ensure that he complies that, the lifting equipment on his vehicle is nothing to do with the operator’s licence. Not my remit. Not my level of expertise. If somebody has got stuff that they’re not sure about, I would say, ‘Speak to the people you need to, do a Google search, get somebody who is an expert in that field to tell you what you need to do. Because I don’t understand.’ I wouldn’t go round and do a full inspection on his vehicle because I’m not a trained vehicle inspector. I would go round and say, ‘Your tyre’s a bit low. Your light isn’t working.’ Because I can see those things. So, that is as far as my, you know, ‘Have you got a LOLER certificate? I understand that it needs to be in place because that is lifting equipment, you need to find the right people to do the right job.’”
‘LOLER Inspection Guidelines’
“A visual inspection should be considered daily on the following items: … Safety hand rails are all secure and complete and wire ropes are tensioned and not defective. …”
“Q. If Mr [Sippitts], you had known that this vehicle was being driven with cars for those sorts of distances over, it looks like 2,000 miles, what would you have said about that? A. Well, from my point of view, the vehicle was, from his operator’s license, the vehicle was okay. Q. Yes. A. I would rather have known, so that I could have made sure that the driver license checks were done correctly. As far as the LOLER regulations, I wouldn’t have been happy about that. But then again, it’s not really my remit. It’s up to, you know, it’s up to Carr’s transport manager. MR JUSTICE JULIAN KNOWLES: So, if he was compliant, you would want to know, just because you would want to know? A. Yes. MR JUSTICE JULIAN KNOWLES: Because presumably, you would want to know what your clients are up to? A. Yes. I’d like to think that he’d done the right thing. Because if he’s not doing that, is there anything else? But I would like to have known that he was driving, because I like to do the first driving license check, to make sure that the actual person is licensed to drive that vehicle, hasn’t got any points. And also, know that the tachograph rules are followed. So, you know, I would have been much happier knowing that they were actually operating. Q. Why would you not have been happy about the LOLER certificate? A. Why would I not have been happy? Q. If these were just practise runs, why would you not have been happy with him doing this? A. Well, even with the practise run, if they’re lifting and lowering the cars, surely somebody’s doing that, whether it’s Andrew or whether it’s somebody he employs, he should follow the regulations really. I mean, that’s a health and safety thing and not my remit, but I’d like to know he was doing the right thing. MR JUSTICE JULIAN KNOWLES: Just pause. ‘I would not have been happy about the LOLER certificate, but it is not really my remit’”
“23. The inspection is intended to ensure that the vehicle is roadworthy. A full inspection of the underside of the vehicle is completed. The inspection is only a visual inspection and we complete the checklist as we are walking around the vehicle and cab. We check the underneath of the vehicle, tyres and wheel nuts. 24. We did not go onto the vehicle to inspect the trailer or the upper deck as this does not form part of a VOSA [now the DVSA] roadworthiness inspection. We would not inspect any lifting equipment as part of a VOSA inspection, as we are not certified for vehicle lifting apparatus. Lifting equipment should be inspected in accordance with [LOLER]. The trailer on Andrew’s vehicle has a lifting top deck and should have been inspected in accordance with LOLER requirements.”
“At no point during arranging the maintenance contract or before the inspections were we asked to inspect the upper deck of the trailer. Tony and Andrew would have known that our inspection did not include this as it would have required obtaining safety equipment and test equipment which they both knew we did not have.”
“I do not agree that Trax (Coventry) Limited should have identified the defective pillar on the upper deck of the trailer as part of the two inspections that took place in October and November 2017. They did not form part of the agreed inspection and any reference to handrails or grab rails on the checklist relates solely to the rails on the cab and trailer which are at floor level and are checked to ensure they are secure.”
“I do not tell the customers if the vehicle needs a LOLER at all. The customers come to me and request LOLER inspections. I don’t have anything to do with LOLERS. I haven’t got the experience for LOLERS. I just know that the vehicle or proper operation lifting equipment on vehicles, i.e. tail lifts, cranes, lifting decks, are all covered by LOLER. I don’t have anything to do with advising the customers. All the customers have transport managers who manage their transport fleet, who should have all the documentation and control over maintenance. When I signed the maintenance agreement with Andrew, it was to carry out a vehicle inspection, a roadworthiness inspection. Nothing to do with tail lifts. Nothing to do with LOLER, or any other requirement on the vehicle. It was just for inspection purposes.”
“I would have, yeah. But I would have also thought that he’d have already checked all this when he bought the vehicle type that he’d got and with his transport manager. Bearing in mind, I look after various fleets of vehicles for various customers. If I was doing this on a daily basis, advising my customers what they should entail, they wouldn’t need transport managers. This is what the transport manager’s job is to do, is to make sure their vehicle records and everything that they require, is all up to scratch. I shouldn’t really, or I’m never asked by any of my customers, for advice on what should and shouldn’t be done on the vehicles, other than signing a maintenance contract to look after their vehicles.”
“A. No, but I do offer them. I offer them to the customers. I’m still doing it now. I can show you, I can give you evidence of a LOLER inspection recently, or several inspections that I’ve done for customers, [and still fleet?] customers, that I’m still getting done now. So, yes, we do offer the LOLER inspection service, but we don’t do them. Q. I understand that entirely. So, you do offer it, but you wait to be asked. Is that probably the best way to put it? A. That is exactly the way to put it, yes.”
“Again, we could see the top of the pillar, but not the base of the pillar. None of the pillars we could see from, the base of any of the pillars we can’t see from floor level, because they’re above our head. They’re probably 10ft above us. So, without having a drone with a camera on it, or going up there, there’s no way of seeing that, if it’s at the top of the pillars.”
“Q. Would it be right to say, when the questions were being asked to you by Lord [Faulks] and he was saying, ‘Well, would you advise them on the LOLER regulations and getting this inspection done?’ That when you refer to the transport managers, what you were effectively saying was, ‘Well, no, I wouldn’t. That’s what you have a transport manager for?’ A. Yes.”
“A. Yes. Q. I’m not disputing that. A. No. Q. ‘Tony’, who is obviously Mr Carr, senior? A. Yeah. Q. Who is the man that you’ve worked with and knew well? A. Yeah. Q. And Andrew? A. Yeah. Q. “Would have known that our inspections did not include this, as it would have required obtaining safety equipment and test equipment, which they both knew we did not have?”
“Q. The only question is, I won’t ask you about Tony because he gave evidence yesterday and no questions were asked about this. But Andrew, why would he have known that you wouldn’t have the safety equipment and test equipment? His dad might have done, but why would Andrew have known? A. Because he knew that we didn’t participate in doing that kind of requirement. Andrew would work for his father as a mechanic for a short period as well. Nothing’s been mentioned about that. So, Andrew was quite, what’s the word? He knew his way round the vehicle, anyway.”
“The reference to grab rails and safety rails in the inspection form is in reference to rails at floor level such as the rails used to climb into the cab. We undertake a simply visual inspection to ensure that they are secure and will not fall off when the vehicle is on the road and cause damage to other road users.”
“As this is an inspection of the roadworthiness of the vehicle there is no requirement to climb onto the load area. A visual inspection of the items listed in the manual would be carried out from floor level or from underneath the vehicle, where necessary, to confirm that the body is secure on the chassis and that the load can be securely carried on or within the body to ensure that there is no risk of that load becoming a risk to other road users, pedestrians or passengers.”
“On25 January 2018 , the writer examined the guardrails on the car transporter which had been moved to Autorite Industries (Willenhall) Ltd. In the writer’s opinion, when Mr Andrew Carr leant onto the guardrail or fell against it, the pillar gave way because it was corroded to such an extent it could not bear his weight. At the time of the accident, the guardrail pillar had not been maintained to the extent that it was of sufficient strength and rigidity for its intended purpose, that is, to prevent, so far as practicable, any person falling from height. The area was heavily corroded such that little of the original steel in the pillar was left, leaving it structurally unsound. Thus, in the writer’s opinion, the guardrail pillar had not been maintained as described in the available benchmarks and practice.”
“4.1 The front nearside pillar on the deck above the cab was bent over such that all the cables were slack and provided no protection against a person on the top deck falling from height. 4.2 The area at which the pillar was bent was very significantly corroded, to such an extent that the in the writer’s opinion, it would have had very little structural integrity, and would not have supported a force, such as would be applied to the guardrail, should a person have fallen onto it, or even leaned on it.”
“The Tax (sic) inspection was by a specialist familiar with inspecting, testing and reporting upon vehicle condition and defects. One would have expected examinations to have covered the items of consideration in this case, in particular the pillar, and also to have reported upon its condition, i.e. unserviceable, not fit for purpose.”
“The LOLER state that an inspection of lifting equipment must be performed every 12 months (or possibly every six months depending upon the legal interpretation of the document). The last documented LOLER inspection was on5 July 2016 , ie 15 months prior to the incident. I am not a corrosion expert and therefore I cannot accurately determine when significant corrosion of the front nearside post guardrail post likely developed. However, if a LOLER inspection had been conducted shortly before the date of the incident, then I would expect a competent examiner to have identified the corrosion around the front nearside guardrail post and likely identified the weakness in the post.”
“The wall thickness of the front nearside post at the point of failure had reduced substantially due to the severe corrosion, which would have left it in a significantly weakened state. It likely took little force for the post to fail due to its reduced strength.”
“I understand that the six weekly safety inspections are visual inspections only. If a visual inspection of the guardrails had been conducted as part of these safety inspections, then at the last safety inspection on29 November 2017 (ie about three weeks prior to the incident), I would expect the significant corrosion around the front near side guardrail post to have been evident to a competent inspector. On seeing the corrosion, I would expect the inspector to have raised concerns about its condition.”
“The Tax (sic) inspection was by a specialist familiar with inspecting, testing and reporting upon vehicle condition and defects. On would have expected examinations to have covered the items of consideration in this case, in particular the pillar, and also to have reported upon its condition, i.e. unserviceable, not fit for purpose.”
“15. The effect in this case ofsection 69 of the Enterprise and Regulatory Reform Act 2013 ('the 2013 Act'), which amends the Health and Safety at Work etc Act 1974, was not disputed. The case proceeded on the agreed basis that there was no longer a self-standing cause of action available to the claimant for any breaches of the statutory duties of employers under what have become known as the 'six pack' of health and safety regulations. Her only cause of action against CXK lay in common law negligence – in other words, by establishing that the common law duty of care owed to her by her employer had been breached, and that that breach had, foreseeably, caused her accident. 16. No cases on the effect of the 2013 Act were cited to me. For guidance on the nature of the duty of care now owed by employers at common law, I was taken to two sources of law. The first was the pre-existing caselaw on employers' liability at common law, developed before the statutory health and safety regulatory regime came into existence. I was taken to some of that earlier caselaw – some of it considerably earlier – in the course of legal argument, and consider its application further below. But the essence of the employers' duty at common law, briefly stated, is to take reasonable steps to provide a reasonably safe place of work, and system of work, for their employees, so as to protect them, so far as reasonably practicable, from reasonably foreseeable harm. The caselaw is clear about the importance of context, in understanding what is reasonable, and in giving detailed meaning to that duty, in individual cases. 17. The second source was the statutory health and safety regulatory regime itself. The claimant's case – and, again, this was not disputed – was that in considering the nature of the modern common law employers' duty it is still permissible to have regard to the statutory duties, to understand in more detail what steps reasonable and conscientious employers can be expected to take to provide a reasonably safe workplace and system of work. 18. Care is needed with this analysis. In removing the claimant's cause of action for breach of statutory duty, the 2013 Act did not repeal the duties themselves. Those duties continue to bind employers in law. So they continue to be relevant to the question of what an employer ought reasonably to do. However by enacting s 69, Parliament evidently intended to make a perceptible change in the legal relationship between employers and employees in this respect. It removed direct actionability by claimants from the enforcement mechanisms to which employers are subject in carrying out those statutory duties. What I have referred to as this 'rebalancing' intended by s 69 was evidently directed to ensuring that any breach of those duties would be actionable by claimants if, but only if, it also amounted to a breach of a duty of care owed to a particular claimant in any given circumstances; or in other words, if the breach was itself negligent. It is no longer enough to demonstrate a breach of the regulations. Not all breaches of the statutory regime will be negligent. Before the 2013 Act, the statutory regime had produced results in which employers were fixed with legal liability for accidents even where they had taken reasonable precautions against them. Stark v Post Office[2000] EWCA Civ 64 became a well-known example. A component in a postman's bicycle gave way even though the machine had been sensibly maintained and checked; the Post Office was held liable to the claimant even though it had not been negligent. Section 69 changed that framework, with a view to producing different results.”
‘ensuring safe loading with appropriate indicators fitted’; ensuring ‘a suitable maintenance planner is complete and displayed with preventative maintenance dates at least 6 months in advance, to include the Annual Test and other testing or calibration dates’; ‘ensuring that vehicles and trailers are kept in a fit and roadworthy condition, that defects are either recorded and repaired promptly’ and where not roadworthy are taken out of service’; ‘to make vehicles and towed equipment available for safety inspections, service, repair and statutory testing available at the appropriate times and within the notified O-licence maintenance intervals’; ‘to liaise with maintenance contractors, manufacturers, hire companies as might be appropriate.’
“Yeah, but again, that for me, it’s a health and safety issue, rather than a road compliance issue. And that’s why I try not to get too involved. Just because it’s on a vehicle, it’s a health and safety thing. It’s not a road compliance issue, which is what I’m trained in. I’m not a health and safety advisor.”
“Q. You have that conversation with him and you very candidly said and were obviously querying that it was a long time ago and what you remember. But obviously, there’s the conversations that take place, whether it’s six months preferably, or 12 months, [on the face of this report?]. And that you had that discussion with Andrew. When you set up the Google diary that is there to ensure compliance, why is LOLER not in the diary? A. Because that is not the road compliance. The diary that I set up is what I use for other companies. It’s just I just copy it, change the vehicle details, put the new date in for those things. I generally don’t put the LOLER in, because that’s a health and safety requirement. That is something that is done by the operator. In Andrew’s case, because he was new and he’d never heard of that, that is why I spoke to him about that. It’s something that I never used to put in that document. I’ve never done it before.”
“Q. If you had been aware of the fact that the manufacturer’s advice or guidance, in respect of drivers’ daily checks, was to check additional items, you would have raised that with Andrew, wouldn’t you? If you had known that? A. If I’d have known that, I would have just said, “Look, you know, would you like to do an additional daily check, just on an A4 bit of paper, that the drivers come up and check theirs?”
““Well, because we had seen it and it said, ‘The next one is due 2017’, I was thinking, ‘Well okay, that’s their idea.’ We weren’t using a vehicle at the moment and that’s when I had this discussion with Andrew and said, ‘This is what we need to be doing. You need to have a new certificate. They’re saying 2017. It runs out. You’re not using at the moment, but you need to get it done before you do start using it. I would be happier about the six-monthly.’ And that’s when he’s had this thing. And apparently, he said, ‘Six-monthly’s good.’ And that was where I left it. Because he wasn’t using the vehicle, there was no immediate rush to go out and get it because he wasn’t, well he told me he wasn’t actually using it at the time.”
“From these authorities I deduce the principles, that the overall test is still the conduct of the reasonable and prudent employer, taking positive thought for the safety of his workers in the light of what he knows or ought to know; where there is a recognised and general practice which has been followed for a substantial period in similar circumstances without mishap, he is entitled to follow it, unless in the light of common sense or newer knowledge it is clearly bad; but, where there is developing knowledge, he must keep reasonably abreast of it and not be too slow to apply it; and where he has in fact greater than average knowledge of the risks, he may be thereby obliged to take more than the average or standard precautions. He must weigh up the risk in terms of the likelihood of injury occurring and the potential consequences if it does; and he must balance against this the probably effectiveness of the precautions that can be taken to meet it and the expense and inconvenience they involve. If he is found to have fallen below the standard to be properly expected of a reasonable and prudent employer in these respects, he is negligent.”
“7. Vicarious liability is a common law principle of strict, no-fault liability. Under this principle a blameless employer is liable for a wrong committed by his employee while the latter is about his employer's business. The time-honoured phrase is ‘while acting in the course of his employment’. It is thus a form of secondary liability. The primary liability is that of the employee who committed the wrong. (To a limited extent vicarious liability may also exist outside the employment relationship, for instance, in some cases of agency. For present purposes these other instances can be put aside.) 8. This principle of vicarious liability is at odds with the general approach of the common law. Normally common law wrongs, or torts, comprise particular types of conduct regarded by the common law as blameworthy. In respect of these wrongs the common law imposes liability on the wrongdoer himself. The general approach is that a person is liable only for his own acts. 9. Whatever its historical origin, this common law principle of strict liability for another person's wrongs finds its rationale today in a combination of policy factors. They are summarised in Professor Fleming's Law of Torts, 9th ed (1998), pp 409–410. Stated shortly, these factors are that all forms of economic activity carry a risk of harm to others, and fairness requires that those responsible for such activities should be liable to persons suffering loss from wrongs committed in the conduct of the enterprise. This is ‘fair’, because it means injured persons can look for recompense to a source better placed financially than individual wrongdoing employees. It means also that the financial loss arising from the wrongs can be spread more widely, by liability insurance and higher prices. In addition, and importantly, imposing strict liability on employers encourages them to maintain standards of “good practice” by their employees. For these reasons employers are to be held liable for wrongs committed by their employees in the course of their employment.”
“The expression ‘non-delegable duty’ has become the conventional way of describing those cases in which the ordinary principle is displaced and duty extends beyond being careful, to procuring the careful performance of work delegated to others.”
“7-106. As a general rule, a person who engages an independent contractor to carry out a task or perform an activity is not responsible for any shortcomings on the part of the contractor … Nature of non-delegable duty 7-107. Exceptionally, however, the courts may hold that an employer or principal who is under a duty to take care cannot delegate the duty to another person. This means that the defendant cannot delegate legal responsibility in respect of the duty, rather than that the defendant cannot delegate actual performance of a task to another person. The defendant’s duty in these circumstances is to ensure that care is taken.”
“(1) The claimant is a patient or a child, or for some other reason is especially vulnerable or dependent on the protection of the defendant against the risk of injury. Other examples are likely to be prisoners and residents in care homes. (2) There is an antecedent relationship between the claimant and the defendant, independent of the negligent act or omission itself, (i) which places the claimant in the actual custody, charge or care of the defendant, and (ii) from which it is possible to impute to the defendant the assumption of a positive duty to protect the claimant from harm, and not just a duty to refrain from conduct which will foreseeably damage the claimant. It is characteristic of such relationships that they involve an element of control over the claimant, which varies in intensity from one situation to another, but is clearly very substantial in the case of schoolchildren. (3) The claimant has no control over how the defendant chooses to perform those obligations, i.e. whether personally or through employees or through third parties. (4) The defendant has delegated to a third party some function which is an integral part of the positive duty which he has assumed towards the claimant; and the third party is exercising, for the purpose of the function thus delegated to him, the defendant's custody or care of the claimant and the element of control that goes with it. (5) The third party has been negligent not in some collateral respect but in the performance of the very function assumed by the defendant and delegated by the defendant to him.”
“The argument based on non-delegable duty is not understood. The facts of Woodland are wholly distinguishable. None of the unusual circumstances in which the courts are prepared to find a non-delegable duty apply to the facts of this case.”
“7-112. [Having identified Lord Sumption’s five factors] A clear instance was the non-delegable duty of an employer to maintain a safe system of work. … 12-10. The employer’s duty to an employee is a single, personal duty, which is non-delegable, so that the employer must not simply take care, he must see that care is taken, by all those persons engaged by him. Judicial definitions have included: ‘The duty of an employer towards his servant is to take reasonable care for the servant’s safety in all the circumstances of the case’ and ‘the duty of taking reasonable care … so to carry on his operations as not to subject those employed by him to unnecessary risk’. ‘The ruling principle is that an employer is bound to take reasonable care for the safety of his workmen, and all other rules or formulas must be taken subject to this principle.’ It follows that the employer’s duty is stricter than the duty to take reasonable care for oneself, and it exists whether or not the employment is inherently dangerous.”
“(1) The criteria themselves are consistent with the long-standing policy of the law, apparent notably in the employment cases, to protect those who are both inherently vulnerable and highly dependent on the observance of proper standards of care by those with a significant degree of control over their lives.”
“... the ... duty was personal to the employer, in this sense that he was bound to perform it by himself or by his servants. ... The obligation is fulfilled by the exercise of due care and skill. But it is not fulfilled by entrusting its fulfilment to employees, even though selected with due care and skill.”
“The true question is, What is the extent of the duty attaching to the employer? Such a duty is the employer's personal duty, whether he performs or can perform it himself, or whether he does not perform it or cannot perform it save by servants oragents. A failure to perform such a duty is the employer's personal negligence. ... the whole course of authority consistently recognizes a duty which rests on the employer and which is personal to the employer, to take reasonable care for the safety of his workmen, whether the employer be an individual, a firm or a company, and whether or not the employer takes any share in the conduct of the operations.”
“It is not, however, broken by a mere misuse or failure to use proper plant and appliances due to the negligence of a fellow-servant or a merely temporary failure to keep in order or adjust plant and appliances or a casual departure from the system of working, if these matters can be regarded as the casual negligence of the managers, foreman, or other employees.”
“A statement of the relevant principle of law can be divided into three parts. First, an employer owes to his employee a duty to exercise reasonable care to ensure that the system of work provided for him is a safe one. Secondly, the provision of a safe system of work has two aspects: (a) the devising of such a system and (b) the operation of it. Thirdly, the duty concerned has been described alternatively as either personal or non-delegable. The meaning of these expressions is not self-evident and needs explaining. The essential characteristic of the duty is that, if it is not performed, it is no defence for the employer to show that he delegated its performance to a person, whether his servant or not his servant, whom he reasonably believed to be competent to perform it. Despite such delegation the employer is liable for the non-performance of the duty.”
“… the first defendants had failed to provide a safe place for their workmen, and had, therefore, committed a breach of their common law duty as recently laid down in Wilsons & Clyde Coal CoLtd v English. This is a duty which cannot be avoided by delegation. It is no answer to say, as counsel for the first defendants submitted: ‘We employed competent contractors to provide a safe place or plant.’ The class of cases in which the employment of a competent contractor affords a defence belongs to a wholly different category in the law of negligence. I have no hesitation in holding that the first defendants have no defence whatever to the plaintiff's claim.”
“8. The key question is whether this case falls directly or by analogy within the principle and defence identified in Ginty v Belmont Building Supplies Ltd[1959] 1All ER414 by Pearson J, and considered with approval by the House of Lords in Boyle v Kodak Ltd[1969] 1WLR661 , 666f, 669, 670f, 671 and 672e, to which I will return. At this stage it suffices to refer to the statement of Lord Reid in Boyle v Kodak Ltd summarising the effect of the authorities. He stated, at p 667: “once the [claimant] has established that there was a breach of an enactment which made the employer absolutely liable, and that that breach caused the accident, he need do no more. But it is then open to the employer to set up a defence that, in fact, he was not in any way in fault, but that the [claimant] employee was alone to blame.”
‘… the only act or default of anyone which caused or contributed to the non-compliance was the act or default of the plaintiff himself’
“… the common law principle that a person cannot derive any advantage from his own wrong which, in this context, meant that a person cannot by his own wrongful act impose on his employer the liability to pay damages to him.”
“41. Ginty’s case and Boyle v Kodak Ltd concerned an employee claimant, and not a claimant who was the employer company’s director, let alone its sole director and shareholder. In the circumstances of the present case, moreover, as the corporate first defendant who is sued can only act through its sole director, the claimant, there is no question of the director/claimant disobeying the company’s instruction. The fact is that the director’s acts and omissions constitute the company’s breach of its duty under the Regulations. Can the Ginty/Boyle v Kodak Ltd defence apply in this situation, and, if it can, how is it to be explained ?”
“47. Where, as is the position of the claimant, a director/claimant has paid no attention whatsoever to health and safety issues, and has abrogated his responsibilities as owner and director of the company for them, he will be in breach of his duty qua director under section 174(2)(a) of the 2006 Act. The facts that the claimant was not a mechanic, or skilled in operating a workshop, and that there were other people who were more closely involved in the setting up and day-to-day running of the workshop do not, given the findings of the judge, mean that he can satisfy the standard required in section 174. 48. The consequence of this is that the claimant is a wrongdoer and falls within the first of Pearson J’s explanations or justifications for the defence; the common law principle that a person cannot derive any advantage from his own wrong. The common sense proposition in Lord Diplock’s speech in Boyle v Kodak Ltd[1969] 1WLR661 that ‘to say ‘You are liable to me for my own wrongdoing’ is neither good morals nor good law’ appears to me to be applicable where the director/claimant has paid no attention whatsoever to health and safety issues, and in the judge’s words (at para 59) had “abrogated his responsibilities as owner and director” of the company. I do not consider that it lies in the mouth of a claimant who is the defendant’s sole director and shareholder, and through whom the company must act, to assert that the company has not proved that it has done all it could to ensure compliance when it is only through the claimant director’s acts that the company can act.”
“55. I observe only that the statutory formulation in section 174 of the 2006 Act recognises that there will be variations between different types of directors and between different types and sizes of company. Directors are permitted to engage in substantial delegation of management functions to non-board employees, just as they were at common law: see In re City Equitable Fire Insurance Co Ltd[1925] Ch407 , 429. Directors are not, however, permitted to escape from being in a position to guide and monitor management and from “the duty to supervise the discharge of the delegated functions”: In re Barings plc (No 5)[1999] 1BCLC433 , 489, approved by the Court of Appeal[2000] 1BCLC523 , 536, and Equitable Life Assurance Society v Bowley[2004] 1BCLC180 , para 41. In the latter case Langley J stated that the law as to the extent to which non-executive directors may be able to rely on the executive directors and other professionals to perform their duties is in a state of development and is “fact sensitive”
“The defence will apply only the claimant is the sole author of his own misfortune. The employer will be liable if he himself was at fault.”
“3. (1) These Regulations shall apply - … (2) The requirements imposed by these Regulations on an employer in respect of lifting equipment shall apply in relation to lifting equipment provided for use or used by an employee of his at work. (3) The requirements imposed by these Regulations on an employer shall also apply— (a) to a relevant self-employed person], in respect of lifting equipment he uses at work; (b) subject to paragraph (5), to a person who has control to any extent of— (i) lifting equipment; (ii) a person at work who uses or supervises or manages the use of lifting equipment; or (iii) the way in which lifting equipment is used, and to the extent of his control.” and to the extent of his control.”
“19. The law of vicarious liability is on the move. On12 July 2012 , shortly before the hearing of the appeal in this case, the Court of Appeal handed down its judgments in E v English Province of Our Lady of Charity[2013] QB722 . That case was concerned with the preliminary issue of whether the diocesan trust could be vicariously liable for acts of sexual abuse committed by a parish priest in the diocese. The court held, by a majority, that he could. Before us Mr Leggatt, for the Middlesbrough defendants, suggested that the court would no doubt wish to read the judgments in full. He was right to do so. The hearing of that case before the Court of Appeal lasted but a day, but the impressive leading judgment of Ward LJ evidences consideration of case law and academic writings that goes far beyond the material to which counsel can have had time to refer in that short hearing. At paras 20 and 21 of his judgment, Ward LJ traces the origin of vicarious liability back to the middle ages, but rightly identifies that the law upon which he and I cut our teeth rendered the employer, D2, liable for the tortious act of the employee, D1, provided that the act in question was committed “in the course of the employee’s employment”
“35. The relationship that gives rise to vicarious liability is in the vast majority of cases that of employer and employee under a contract of employment. The employer will be vicariously liable when the employee commits a tort in the course of his employment. There is no difficulty in identifying a number of policy reasons that usually make it fair, just and reasonable to impose vicarious liability on the employer when these criteria are satisfied: (i) the employer is more likely to have the means to compensate the victim than the employee and can be expected to have insured against that liability; (ii) the tort will have been committed as a result of activity being taken by the employee on behalf of the employer; (iii) the employee’s activity is likely to be part of the business activity of the employer; (iv) the employer, by employing the employee to carry on the activity will have created the risk of the tort committed by the employee; (v) the employee will, to a greater or lesser degree, have been under the control of the employer.”
“56. In the context of vicarious liability the relationship between the teaching brothers and the institute had many of the elements, and all the essential elements, of the relationship between employer and employees. (i) The institute was subdivided into a hierarchical structure and conducted its activities as if it were a corporate body. (ii) The teaching activity of the brothers was undertaken because the provincial directed the brothers to undertake it. True it is that the brothers entered into contracts of employment with the Middlesbrough defendants, but they did so because the provincial required them to do so. (iii) The teaching activity undertaken by the brothers was in furtherance of the objective, or mission, of the institute. (iv) The manner in which the brother teachers were obliged to conduct themselves as teachers was dictated by the institute’s rules. 57. The relationship between the teacher brothers and the institute differed from that of the relationship between employer and employee in that: (i) The brothers were bound to the institute not by contract, but by their vows. (ii) Far from the institute paying the brothers, the brothers entered into deeds under which they were obliged to transfer all their earnings to the institute. The institute catered for their needs from these funds. 58. Neither of these differences is material. Indeed they rendered the relationship between the brothers and the institute closer than that of an employer and its employees.”
“Stage 2: The connection between the brothers’ acts of abuse and the relationship between the brothers and the institute 62. Where an employee commits a tortious act the employer will be vicariously liable if the act was done “in the course of the employment” of the employee. This plainly covers the situation where the employee does 21something that he is employed to do in a manner that is negligent. In that situation the necessary connection between his relationship with his employer and his tortious act will be established. Stage 2 of the test will be satisfied. The same is true where the relationship between the defendant and the tortfeasor is akin to that of an employer and employee. Where the tortfeasor does something that he is required or requested to do pursuant to his relationship with the defendant in a manner that is negligent, stage 2 of the test is likely to be satisfied. But sexual abuse can never be a negligent way of performing such a requirement. In what circumstances, then, can an act of sexual abuse give rise to vicarious liability ?”
“Two elements have to be shown before one person can be made vicariously liable for the torts committed by another. The first is a relationship between the two persons which makes it proper for the law to make the one pay for the fault of the other. Historically, and leaving aside relationships such as agency and partnership, that was limited to the relationship between employer and employee, but that has now been somewhat broadened. That is the subject matter of this case. The second is the connection between that relationship and the tortfeasor’s wrongdoing. Historically, the tort had to be committed in the course or within the scope of the tortfeasor’s employment, but that too has now been somewhat broadened. That is the subject matter of the Wm Morrison case [which was a parallel case:[2020] AC989 ].”
“7. The parties’ respective positions can be simply put. As Lord Bridge of Harwich stated in D & F Estates Ltd v Church Comrs for England[1989] AC177 , 208 (echoing the words of Widgery LJ in Salsbury v Woodland[1970] 1QB324 , 336), “It is trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of the work”
“At para 35 above, I have identified those incidents of the relationship between employer and employee that make it fair, just and reasonable to impose vicarious liability on a defendant. Where the defendant and the tortfeasor are not bound by a contract of employment, but their relationship has the same incidents, that relationship can properly give rise to vicarious liability on the ground that it is ‘akin to that between an employer and an employee’. That was the approach adopted by the Court of Appeal in E’s case[2013] QB 722 .”
“18. I do not believe that by his reference to “those incidents”
“I have quoted these paragraphs at length to show that he was answering the questions by reference to the details of the relationship, and its closeness to employment, rather than by reference to the five ‘policy reasons’ in para 35.”
“20. The next case was Cox v Ministry of Justice[2016] AC660 . The issue was whether the prison service could be vicariously liable for injuries caused to a prison catering manager by the negligence of a prisoner who was working under her direction on prison service pay. There was no contract of employment between the prison and the prisoners. Nevertheless, applying the Christian Brothers case, this court held that the prison was vicariously liable. It is fair to say that Lord Reed JSC did focus on the five policy factors identified by Lord Phillips. He pointed out that they are not all of equal significance. Factor (i), deep pockets, is not in itself a principled reason to impose liability, although the absence of any other source compensation may sometimes be taken into account (para 20). Factor (v), control, does not have the significance which once it did. In today’s world an employer is likely to be able to tell an employee what to do but not (at least always) how to do it. But the absence of even this vestigial degree of control would point against liability (para 21). That left three interrelated factors: (ii) that the tort was committed as a result of activity undertaken by the tortfeasor on behalf of the defendant; (iii) that the activity was part of the business activity of the defendant; and (iv) that by employing the tortfeasor to do it, the defendant created the risk of his committing the tort (para 22). He summed up the principle thus, at para 24: “The result of this approach is that a relationship other than one of employment is in principle capable of giving rise to vicarious liability where harm is wrongfully done by an individual who carries on activities as an integral part of the business activities carried on by a defendant and for its benefit (rather than his activities being entirely attributable to the conduct of a recognisably independent business of his own or of a third party), and where the commission of the wrongful act is a risk created by the defendant by assigning those activities to the individual in question.” (Emphasis supplied.)
“23. The last, and perhaps the most difficult, case is Armes v Nottinghamshire County Council[2018] AC355 . The issue was whether the county council could be vicariously liable for physical and sexual abuse allegedly carried out by two of the foster parents with whom the claimant was placed by the county council while in their care. Lord Reed JSC repeated his analysis in Cox, prefacing his account with the statement that, while the classic example of a relationship justifying the imposing of vicarious liability was employer and employee, as explained in Cox and Christian Brothers ‘the doctrine can also apply where the relationship has certain characteristics similar to those found in employment’ (para 54). In applying the five ‘incidents’ identified in those cases, he placed more emphasis on the lack of any other source of compensation if there were no vicarious liability and on the extent of the control exercised by the local authority over the foster parents’ care for the children (para 62). In applying the three interrelated factors, he held that the relevant activity of the local authority was the care of children committed to the local authority’s care (para 59). The foster parents were an integral part of the local authority’s organisation of its childcare services, carried on for the benefit of the local authority (para 60). By placing the children in foster care, the local authority had created the risk of the harm being done (para 61). Significantly, having examined the relationship between the foster parents and the local authority in some detail, he concluded that ‘the foster parents … cannot be regarded as carrying on an independent business of their own’ (para 59).”
“24 There is nothing, therefore, in the trilogy of Supreme Court cases discussed above to suggest that the classic distinction between employment and relationships akin or analogous to employment, on the one hand, and the relationship with an independent contractor, on the other hand, has been eroded. Two cases decided by common law courts since Christian Brothers and Cox have reached the same conclusion.”
“27. The question therefore is, as it has always been, whether the tortfeasor is carrying on business on his own account or whether he is in a relationship akin to employment with the defendant. In doubtful cases, the five ‘incidents’ identified by Lord Phillips may be helpful in identifying a relationship which is sufficiently analogous to employment to make it fair, just and reasonable to impose vicarious liability. Although they were enunciated in the context of non-commercial enterprises, they may be relevant in deciding whether workers who may be technically self-employed or agency workers are effectively part and parcel of the employer’s business. But the key, as it was in Christian Brothers[2013] 2AC1 , Cox[2016] AC660 and Armes[2018] AC355 , will usually lie in understanding the details of the relationship. Where it is clear that the tortfeasor is carrying on his own independent business it is not necessary to consider the five incidents.”
“The line between one who works for another and one who carries on a recognisably independent business certainly is a valuable and principled one, and should not be affected by the ‘analogous to employment’ test. Rather, the proper sphere of application of that test is to non-contractual relationships and to atypical working relationships involving persons who are neither employees nor independent contractors. In Barclays itself it is apparent that the doctor did not surrender his autonomy to the bank, and a number of other indicators, in particular those pointed to by Lady Hale, supported his being an independent contractor.”
“258. It follows from these, and other, authorities that relationships that may be akin to employment so as to give rise to vicarious liability include: (1) The relationship between a bishop and a parish priest - see E per Ward LJ at [122], or between the unincorporated association known as “the Brothers of the Christian Schools” and the lay brothers of the Catholic Church that were members of that association - see Christian Brothers, or between a congregation of Jehovah’s Witnesses and one of its Elders - see BXB v Watch Tower and Bible Tract Society of Pennsylvania and anor[2021] EWCA Civ 356 [2021] 4 WLR 42 per Nicola Davies LJ at [72]-[81]. (2) The relationship between a prisoner and the prison governor where the former is paid to do work in a prison and for the prison’s benefit - Cox. (3) The relationship between a foster-parent and a child placed under local authority control - Armes. (4) The relationship between members of the armed forces and the Crown. The former are not, strictly, employees - see Newell v Ministry of Defence[2002] EWHC 1006 (QB) per Elias J at [3], but the Crown can be vicariously liable for their conduct - see Bici v Ministry of Defence[2004] EWHC 786 (QB) per Elias J at [2] and [63] (and see Attiyah on Vicarious Liability in the Law of Torts (1967) at p395: ‘… it is in practice unthinkable that the Crown would today deny vicarious liability for members of the armed forces.’) (5) The relationship between a police officer and a chief officer of police. Police officers are not (usually) employees, but they fall under the direction and control of their chief officer and must comply with lawful instructions. The relationship might be said to be akin to employment and the chief officer is, by statute, responsible for torts committed by subordinate officers in the course of their functions - sees48 Police Act 1964 ands88 Police Act 1996 . (6) A further possible example is the relationship between a scoutmaster and a scout association. In Murphy v Zoological Association and another The Times14 November 1962 , a 10-year-old boy died after being mauled by a lion at Whipsnade Zoo. Atkinson J held that ‘the Boy Scouts Association could not be said to have been vicariously liable for the acts of scoutmasters and cubmistresses.’ However, in the first instance judgment in JL (unreported, Manchester County Court, transcript of judgment given on27 May 2015 ), HHJ Platts held that the Scout Association was liable for acts of sexual abuse by a scoutmaster (the subsequent appeal on a different aspect of HHJ Platts’ decision did not address this issue). The question of vicarious liability was conceded by the Scout Association in KCR v The Scout Association[2016] EWHC 587 (QB) . 259. In each of these cases the tortfeasor was not the defendant’s employee, but nor was the tortfeasor said to be an independent contractor. There was no contract of service, but the relationship was, in material respects, akin to that of employment and the tortfeasor was closer to the position of an employee than an independent contractor.”
“260. Relationships that have been held not to be akin to employment and so not to give rise to vicarious liability include: (1) The relationship between a bank and a doctor engaged to carry out pre-employment medical screening for the bank - see Barclays Bank. (2) The relationship between a school and a teacher who was contracted to provide compulsory swimming lessons to the school’s pupils - see Woodland v Swimming Teachers Association[2013] UKSC 66 [2014] AC 537 per Lord Sumption at (3) The relationship between a debt collection company and a registered bailiff to whom it sent work - see Kafagi v JBW Group Ltd[2018] EWCA Civ 1157 . (4) The relationship between a company and a contractor that had been engaged to carry out demolition works on the company’s premises - see Ng Huat Seng v Mohammad [2017] SGCA 58 (cited in Barclays Bank at [26]). (5) The relationship between the football club and the football scout/coach in DSN [viz, Blackpool Football Club Ltd v DSN[2021] EWCA 1352 ].”
“20. Historically the common law has imposed vicarious liability on a person where there was a relationship of employment between that person and the tortfeasor. That has required the courts to consider the distinction between a relationship of employment and the relationship that may exist with an ‘independent contractor’. That in turn has required the courts to draw a distinction between a contract of employment (or contract of service, as it was described in the Particulars of Claim in this case) and a contract for services. 21. In recent years the courts have had to address the question whether there can be vicarious liability even where there is no relationship of employment in the strict sense but where there is something “akin to employment”
“(1) Where after the commencement of this Act - (a) an employee suffers personal injury in the course of his employment in consequence of a defect in equipment provided by his employer for the purposes of the employer’s business; and (b) the defect is attributable wholly or partly to the fault of a third party (whether identified or not), the injury shall be deemed to be also attributable to negligence on the part of the employer (whether or not he is liable in respect of the injury apart from this subsection), but without prejudice to the law relating to contributory negligence and to any remedy by way of contribution or in contract or otherwise which is available to the employer in respect of the injury. (2) In so far as any agreement purports to exclude or limit any liability of an employer arising under subsection (1) of this section, the agreement shall be void. (3) In this section - ‘business’ includes the activities carried on by any public body; ‘employee’ means a person who is employed by another person under a contract of service or apprenticeship and is so employed for the purposes of a business carried on by that other person, and ‘employer’ shall be construed accordingly; ‘equipment’ includes any plant and machinery, vehicle, aircraft and clothing; ‘fault’ means negligence, breach of statutory duty or other act or omission which gives rise to liability in tort in England and Wales or which is wrongful and gives rise to liability in damages in Scotland; and ‘personal injury’ includes loss of life, any impairment of a person’s physical or mental condition and any disease. (4) This section binds the Crown, and persons in the service of the Crown shall accordingly be treated for the purposes of this section as employees of the Crown if they would not be so treated apart from this subsection.”
“The substantial question which arises is, as their Lordships think, whether the deceased was a “worker” within the meaning of the Workers' Compensation Act, 1922, and its amendments. Was he a person who had entered into or worked under a contract of service with an employer? The Court of Appeal thought that his special position as governing director precluded him from being a servant of the company. On this view it is difficult to know what his status and position was when he was performing the arduous and skilful duties of piloting an aeroplane 25which belonged to the company and when he was carrying out the operation of top-dressing farm lands from the air. He was paid wages for so doing. The company kept a wages book in which these were recorded. The work that was being done was being done at the request of farmers whose contractual rights and obligations were with the company alone. It cannot be suggested that when engaged in the activities above referred to the deceased was discharging his duties as governing director. Their Lordships find it impossible to resist the conclusion that the active aerial operations were performed because the deceased was in some contractual relationship with the company. That relationship came about because the deceased as one legal person was willing to work for and to make a contract with the company which was another legal entity. A contractual relationship could only exist on the basis that there was consensus between two contracting parties. It was never suggested (nor in their Lordships' view could it reasonably have been suggested) that the company was a sham or a mere simulacrum. It is well established that the mere fact that someone is a director of a company is no impediment to his entering into a contract to serve the company. If, then, it be accepted that the respondent company was a legal entity their Lordships see no reason to challenge the validity of any contractual obligations which were created between the company and the deceased.”
“(1) Where any person suffers damage as the result partly of his own fault and partly of the fault of any other person or persons, a claim in respect of that damage shall not be defeated by reason of the fault of the person suffering the damage, but the damages recoverable in respect thereof shall be reduced to such extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage: …”
“The court has to weigh both the causative potency of the conduct of the defendant and claimant as well as their respective blameworthiness. This is a rough and ready exercise which can produce a range of legitimate views as to what is just and equitable.”