Kmiecic v Isaacs [2010] EWHC 381 (QB)

[2010] EWHC 381 (QB)Case No HQ09X00304
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 12/03/2010
Before
THE HON. MRS JUSTICE SWIFT DBE
Between
Tomasz Krysztof KmiecicClaimantNadia France IsaacsDefendant
Mr Andrew Buchan (instructed by Hansen Palomares Solicitors) for ClaimantMr Rohan Pershad (instructed by Greenwoods Solicitors) for DefendantHearing Hearing dates: 11 November 2009 and 22 January 2010
Judgment
[1]The claimant, Tomasz Kmeicic, who is 31 years old, claims damages against the defendant (formerly the first defendant), Nadia France Isaacs, for personal injuries, loss and damage sustained as a result of an accident which occurred on 17 June 2006.[2]It is alleged that the accident happened when the claimant was carrying out work as a casual labourer for a building contractor, Arkadiusz (“Arek”) Sniegula (trading under the name of Armag Decoration) at the defendant’s home at 2 Frognal Way, Hampstead. The premises consisted of a substantial two-storey house with a one-storey, flat-roofed garage attached.[3]The claimant alleges that he was standing on a ladder belonging to the defendant, whilst holding a roll of roofing material which he intended to pass up to a colleague who was on the roof of the garage. As he was doing so, the ladder toppled over and he fell approximately 1 1/2 metres to the ground.[4]As a result of the accident, the claimant sustained a comminuted fracture of his right elbow and bruising to his right hip and thigh. He has made an incomplete recovery from his injuries and is no longer able to carry out his former occupation of carpentry and general building work.

The claim

[5]Mr Sniegula was not insured and is therefore unlikely to be able to satisfy a judgment. The claimant did not commence proceedings against him in respect of the accident. Instead, proceedings were commenced on 26 January 2009 against the defendant and her husband (then the second defendant) as owners and/or occupiers of 2 Frognal Way.[6]The Particulars of Claim alleged that the accident occurred because the ladder was too short for the job. It pleaded breaches of the duties said to have been owed to the claimant by the defendant and her husband under the provisions of the Work at Height Regulations 2005 (“the 2005 Regulations”), the Construction (Health, Safety and Welfare) Regulations 1996 (“the 1996 Regulations”) and the Provision and Use of Work Equipment Regulations 1998 (“the 1998 Regulations”). The Particulars of Claim also alleged that the defendant and her husband were negligent, in breach of bailment and in breach of the duty owed to the claimant under the Occupiers Liability Act 1957. The last two allegations were withdrawn before the start of the hearing.[7]The Defence averred that the defendant’s husband was an occupier, not an owner, of 2 Frognal Way. The claimant subsequently discontinued proceedings against him. It was averred that the defendant had no knowledge of the accident. The circumstances of the accident as pleaded in the Particulars of Claim were denied. It was denied also that the defendant owed any statutory duty to the claimant and every allegation of breach of duty and negligence was denied. It was averred that any breach of duty which had occurred was the responsibility of the claimant and/or his employer. Further Information of the Particulars of Claim was requested and delivered.[8]An Amended Defence was served in June 2009, in which it was denied, inter alia, that the Regulations referred to in the Particulars of Claim applied to the defendant and/or that she had acted in any wayso as to assume responsibility or control under the Regulations. Negligence and breach of statutory duty were denied. There were allegations of contributory negligence against the claimant.[9]On 19 May 2009, Master Fontaine directed that the issue of liability should be tried as a preliminary issue. The liability hearing started on 11 November 2009, when I heard the evidence called on behalf of the claimant. The defendant had recently undergone an operation and was unfit to attend the hearing. I therefore agreed to adjourn her evidence until she had recovered. The resumed hearing took place on 22 January 2010.

The position of the parties at the hearing

[10]It is common ground that the defendant was not immediately informed of the fact that an accident had occurred at her premises. According to the claimant, Mr Sniegula was anxious to conceal the fact and told the claimant not to report the matter to the defendant. The defendant did not become aware until September 2006 (when the claimant wrote to her) that it was being alleged that an accident had occurred at her home. At that stage, she did not take the matter seriously and believed that it was a “try on”. Her position is that she still does not know whether or not an accident happened at her premises. She puts the claimant to proof of the fact.[11]It is common ground also that the ladder from which the claimant fell did not afford a safe means of access to the roof. It was too short and the surface on which it was standing was not level. It is acknowledged – indeed it forms part of his case – that the claimant was well aware that the ladder would not afford a safe means of access to the roof.

The evidence called on behalf of the claimant

[12]I heard oral evidence from the claimant and his work colleague, Mr Krzysztof Huber. Both are Polish nationals. The claimant’s command of the English language is limited, although he can speak and understand sufficient for the purposes of his work. Mr Huber speaks and understands little English. Both witnesses provided witness statements in Polish which were then translated into English. They gave oral evidence through an interpreter.[13]The claimant’s evidence was that he had worked as a carpenter in London since May 2003. He had three or four years’ experience of roofing work. In the first half of 2006, he had a regular weekday job with a company called Arcon. On two or three days during the early parts of 2006, he had done odd jobs for Mr Sniegula. He had no contract of employment with Mr Sniegula, who paid him in cash at the rate of between £60 and £80 per day, depending on the nature of the work he undertook.[14]Mr Huber said that he had worked for Mr Sniegula continuously since the end of March 2006 and continued in his employment until December 2007. He was a plumber and was not familiar with roofing work.[15]The claimant said that, during the week commencing 12 June 2006, he was on holiday from Arcon. On 14 and 15 June, he worked for Mr Sniegula at a house in Peckham. He assisted Mr Huber to install a kitchen there. He was due to return to his work with Arcon on Monday, 19 June.

The events of Friday, 16 June 2006

[16]The claimant and Mr Huber described how, on Friday, 16 June, Mr Sniegula took them off the Peckham job and drove them to 2 Frognal Way. When they arrived, Mr Sniegula told them what work was required there. This consisted of repairing a leak in the garage roof and carrying out various other jobs inside the house.[17]The claimant’s evidence was that, when they arrived at 2 Frognal Way, the main door of the garage was open. Inside the garage was a step ladder. Mr Sniegula told the claimant and Mr Huber that they could use the ladder to get onto the roof in order to carry out the necessary repair work. They told him that the ladder was too short and that they would need longer ladders if they were to access the garage from the ground. However, they noticed that there was an upstairs window of the house which overlooked the roof. The claimant said that he suggested that they should use the window to gain access to the roof.[18]The claimant described how the three men were then taken inside the house by a housekeeper called Melanie. They went into the room which had the window overlooking the garage roof. It was clearly a boy’s bedroom. Inside the window was a metal security grille which was locked. Under the window was a desk with an adjacent set of drawers. Also in the room was a fitted wardrobe with its left side falling off. Mr Sniegula instructed the claimant to repair the wardrobe. Melanie then took the three men into the garage by way of a door leading directly from the house. They viewed the roof from inside the garage. They also looked at other parts of the house where work was to be carried out.[19]The evidence of the claimant and Mr Huber was that, at some point during their tour of the premises, they met the defendant. They all went back to the bedroom with the window overlooking the garage roof. The claimant started working on the wardrobe. Meanwhile, the defendant and Mr Sniegula were speaking together in English.[20]In his witness statement, the claimant said that he did not listen properly to their conversation because he was working. However, he heard a reference to “scaffolding”. He heard Mr Sniegula say “no” to scaffolding and he heard the word “expensive”. He saw Mr Sniegula point to the window. The defendant said something to Melanie which the claimant did not hear, whereupon Melanie unlocked the grille and opened it. The defendant left the room at that point. Mr Sniegula, the claimant and Mr Huber went through the window onto the roof to inspect the work to be done. The claimant did not suggest that there were any further discussions with the defendant that day about the work to be done on the roof.[21]In his witness statement, Mr Huber described how, in the bedroom, Mr Sniegula talked with the defendant. Melanie opened the lock on the window. The defendant left the room whereupon the three men went through the window onto the roof.[22]In oral evidence, the claimant said that he heard Mr Sniegula and the defendant talking about using the window in order to gain access to the garage roof for the purpose of carrying out the repair work. He heard mention of using a scaffold and also the word “ladder”. At one stage in his evidence, the claimant said the defendant had suggested that they should use the window in order to gain access to the roof to carry out the work. He was pressed about the matter in cross-examination and his evidence became somewhat confused. In the end, he accepted that he had not heard the defendant suggest – or even expressly agree to - the use of the window as a means of accessing the roof in order to carry out the repair work. However, he had inferred that she had given her consent to the use of the window for this purpose from the fact that she had spoken to Melanie and that Melanie had then opened the window in order to allow himself, Mr Sniegula and Mr Huber to go through it onto the roof. He accepted that, at that time, the three men were going onto the roof only in order to inspect it and not for the purpose of carrying out work on it.[23]Having examined the roof, the claimant advised Mr Sniegula that the material covering the flat surface of the roof was in such bad condition that it needed completely replacing. The three men then left the roof via the bedroom window. Mr Huber stayed at the house working, while Mr Sniegula and the claimant went in Mr Sniegula’s car to obtain the necessary equipment for the roofing work. Mr Sniegula did not know what equipment was required and the claimant had to advise him. The roofing material was available in different colours, different sizes of rolls and different prices. Mr Sniegula telephoned the defendant to ask which she wanted. He then bought 11 rolls of the material, each measuring about 70cm in length with a diameter of about 35cm. The material contained gritted asphalt which required heating before it could be laid on the roof. Mr Sniegula and the claimant hired a blowtorch and a gas canister. They took the equipment back to 2 Frognal Way and stored it in the garage.[24]Mr Sniegula then left, having instructed the claimant and Mr Huber to carry out the work inside the house that day and to do the roofing work the following day. After he had left, the claimant repaired the fitted wardrobe in the bedroom, together with furniture elsewhere in the house. He also assisted Mr Huber to insulate some pipes in the basement.

Saturday 17 June, 2006

[25]In his witness statement, the claimant described how he and Mr Huber arrived at 2 Frognal Way at about 8am on Saturday, 17 June. The main door to the garage was closed. They rang the doorbell and Melanie let them in through the door adjacent to the garage, from where they were able to gain access to the garage. At that point, Mr Huber telephoned Mr Sniegula, as was his custom first thing each morning, in order to check what they should be doing. Mr Sniegula confirmed that they should start work on the roof.[26]In oral evidence, the claimant said that, although he had not himself discussed with the defendant how he and Mr Huber were to get the equipment for the repair work onto the roof, he had inferred from the events of the previous day (in particular, from the fact that the three of them had been permitted to access the roof through the window) that it was intended that they should use the window to gain access to the roof and that the defendant had agreed to that arrangement. The claimant said that Mr Sniegula had instructed Mr Huber and himself to use the window to gain access to the roof.[27]Mr Huber’s evidence was that, during his telephone call with Mr Sniegula on Saturday, 17 June, the latter had confirmed to him that they should access the roof via the bedroom window.[28]The claimant’s evidence was that, following the telephone call, he and Mr Huber opened the main garage door and Mr Huber then went into the house with the blowtorch, intending to take it onto the garage roof via the bedroom window. Meanwhile, the claimant changed into his working clothes and began to move the rolls of roofing material and the gas bottle from the back of the garage where they had been stored.[29]Mr Huber’s evidence was that he carried the blowtorch through the house to the bedroom. There was a young boy in bed asleep. The window grille was locked. However he said that he had been responsible for locking the window and grille the previous day after inspecting the roof, so he was able to find the keys and unlock the grille and the window. He said that he had tried not to wake the sleeping boy. He moved the set of drawers out of the way to gain access to the window. He climbed out of the window and placed the blowtorch on the roof. He then returned through the window and left the bedroom.[30]In his witness statement, Mr Huber described how he met the defendant as he was “walking down” on his way back to the garage. She shouted at him, telling him that he should not access the roof through the bedroom window. In oral evidence, he said that he thought that he had met the defendant as he was actually leaving the bedroom. He understood from what she said that he was not to go into the bedroom because the boy was asleep there.[31]In his witness statement, the claimant described how he was moving the rolls of roofing material when Mr Huber returned to the garage. He told the claimant that the defendant had said that they could not use the bedroom window to access the roof. The claimant said that they telephoned Mr Sniegula. They both spoke to him and told him what the defendant had said. They asked him to speak to her. He agreed to do so. He then rang back and told them that she would not let them go onto the roof through the bedroom window. In his witness statement, the claimant stated that “He [i.e. Mr Sniegula] said we would have to use the ladder in the garage”.[32]In oral evidence, the claimant said that Mr Huber had told him about his conversation with the defendant when he (Mr Huber) was still on the roof. He described how Mr Huber (while still on the roof) had telephoned Mr Sniegula and asked him to intervene with the defendant on their behalf. Mr Sniegula then rang back and told them that they could not use the bedroom window to gain access to the roof because the defendant’s son was asleep in the bedroom. At one stage, the claimant appeared to suggest that, during that telephone conversation, Mr Sniegula had told them that the defendant had said that they should use the ladder in the garage to gain access to the roof. He later withdrew that suggestion.[33]In his witness statement, the claimant described how, during the second telephone conversation with Mr Sniegula, he and Mr Huber had pointed out that the ladder was not suitable for the job. They asked him to bring a “proper ladder” but he refused, saying he could not do that. They told him that they would not do the job unless they had the right equipment. The claimant said that there were several telephone conversations during which Mr Sniegula begged them to carry on with the work. He and Mr Huber discussed what to do. They were worried that, if they refused, they would not get any more work from Mr Sniegula. They decided that they would use the ladder to gain access to the roof while the defendant was at home and that, if she left the house, they would use the bedroom window.[34]In his witness statement, Mr Huber gave a similar account of the communications with Mr Sniegula. He said that, after his first encounter with the defendant, he had returned to the garage and reported to the claimant what had occurred. They telephoned Mr Sniegula and asked him to speak to the defendant and get her permission for them to access the roof through the window. He went on to say:
“He telephoned us saying that she does not want to agree and that we should use the ladder from the garage.”
[35]He said that he and the claimant told Mr Sniegula that the ladder was too short and that he should bring a suitable ladder for the job. He refused, saying that it was impossible for him to come. He told them to use the ladder from the garage. Mr Huber said that he and the claimant discussed the matter and agreed that they would use the ladder whilst the defendant was at home but, when she left the house (or if she was in a position from where she would not be able to see them), they would use the bedroom window to gain access to the roof.[36]In oral evidence, Mr Huber said that, when Mr Sniegula rang him back, after telephoning the defendant: “He told us she didn’t let us to go onto the roof through the room, through the window, and then it was her who ordered us to use the ladder …”.[37]When asked further about this, he said that Mr Sniegula had told the claimant and himself later (i.e. after the accident) that the instruction to use the ladder had come from the defendant. The following exchange then took place between Mr Pershad, counsel for the defendant, and Mr Huber:
“Q: I am going to put it in as plain language as possible. Arek told you to use the ladder from the garage? A: That’s correct. Q: And because Arek told you to use the ladder from the garage you agreed? A: We didn’t have any option. Q: You agreed because he was your boss? A: That’s right.”
Q: And because Arek told you to use the ladder from the garage you agreed? Q: You agreed because he was your boss? A: That’s right.”

Q: You agreed because he was your boss?

[38]In his witness statement, the claimant went on to say that, after he and Mr Huber had decided that they would continue with the job using the ladder. Mr Huber went back inside the house whilst the claimant telephoned Mr Sniegula. He said that he told Mr Sniegula again that the ladder was too short and that he did not want to use it. Mr Sniegula begged him to do so. He said that, at that point, the defendant came into the garage and shouted at him that he should use the ladder, pointing at it as she did so. She then went back into the house. He said that he telephoned Mr Sniegula once more and asked him to telephone the defendant again and to tell her that, if he and Mr Huber were not permitted to use the bedroom window to gain access to the roof, they would leave. Mr Sniegula rang back and said that the defendant would still not allow them to use the bedroom window. He pleaded with the claimant to use the ladder and the claimant agreed to do so.[39]The claimant then described how he put the ladder in place against the side of the garage. The top step of the ladder was about a metre short of the edge of the sloping part of the roof. He began to climb the ladder, carrying the gas cylinder. By that time, Mr Huber was on the roof, having again gained access through the bedroom window. The claimant realised that the gas cylinder would be too heavy to hand up to Mr Huber so he went back down the ladder with it. He then put one of the rolls of material over his left shoulder, holding it with his left arm. He used his right hand to hold on to the ladder. His feet were about half way up the ladder when the ladder toppled over one way and he fell the other way. At that point, Mr Huber was lying on the roof waiting to receive the roll, although the claimant had not yet attempted to pass it up to him.[40]The claimant went on to describe in his witness statement how there had been a second occasion when the defendant shouted at him that day. After his fall, he had got to his feet and dragged himself into the garage where he sat on a toolbox. The defendant appeared at the internal door into the garage. There was a car between her and the defendant. He said that she shouted at him “about not going through the window and that he should use the ladder”. He said that she would have been able to see the ladder and the roll of material lying on the driveway, and also that there was something wrong with him. Mr Huber then came into the garage. The claimant said that it must have been obvious to the defendant that Mr Huber had used the bedroom window again to gain access to the roof because she started shouting at him about not going through the window.[41]In his oral evidence, the claimant was somewhat uncertain about where Mr Huber was during the events he was describing. At first he suggested that Mr Huber had been on the roof throughout the period from the time when he had taken the blowtorch up there to the time of the claimant’s fall. Later he suggested that Mr Huber had come down to the garage at some stage and that the two of them had been standing on the driveway outside the garage at the time when all the telephone conversations to Mr Sniegula except for the first one took place.[42]The claimant described two separate occasions when, according to him, the defendant had shouted at him and told him he should use the ladder to get onto the roof. He said that one of those occasions (as described at paragraph 38 above) was before his fall and the other (described at paragraph 40 above) was after it. At one point he suggested that the second incident had occurred whilst he was still lying in the driveway after his fall, rather than when he was in the garage. Later, he reverted to his previous account, namely that the defendant had come and shouted at him for the second time after the accident when he was in the garage.[43]Mr Huber said that, once he and the claimant had decided that they would have to continue with the work, he slipped into the house and made his way onto the roof through the bedroom window. Once he was on the roof, the claimant put the ladder up and Mr Huber lay on the roof waiting to receive the equipment that the claimant was going to pass up to him. He then described the claimant’s accident in much the same terms as the claimant had done. Having seen the claimant’s fall, he said that he went back through the bedroom window and made his way through the house to the driveway outside the garage. He helped the claimant up and escorted him into the garage. At that point, the defendant appeared and shouted to him that she had already told him that he could not access the roof by means of the bedroom window. He said that he did not know whether or not she had seen the claimant at that time.[44]In oral evidence, Mr Huber said that he had had another encounter with the defendant as he was making his way through the house to the garage after the claimant’s fall. That encounter was not mentioned in his witness statement. On that occasion, the defendant had again told him not to go onto the roof through the bedroom window since her son was asleep in the bedroom. Mr Huber was in a hurry to go to the claimant’s assistance. He helped the claimant into the garage whereupon the defendant appeared there shouting. He said that he did not understand what she was saying.[45]Both the claimant and Mr Huber were adamant that the defendant had not left the house during the time they were working there on the Saturday morning.

Monday, 19 June 2006

[46]Mr Huber said that he and a colleague carried out the repairs to the roof on Monday, 19 June 2006. Mr Sniegula provided them with a long ladder for the purpose and they used it to access the roof and to carry up the necessary materials. It is accepted that, even then, the system of work used was not safe.

The defendant’s evidence

[47]In her witness statement, the defendant explained how she had telephoned Mr Sniegula, who had previously done work for her and, asked him to repair a leak which had developed in the roof of the garage at 2 Frognal Way. She said that she did not see him to discuss the job and was not provided with any written estimate or other documentation. She had no recollection of seeing Mr Sniegula or anyone else on Friday, 13 June 2006. She thought that she was probably out at that time.[48]In oral evidence, the defendant said that she did not recall any of the events of Friday, 13 June. She did remember that she had had a number of jobs to be done at about that time, including a leak in her son’s bedroom ceiling and in the kitchen and garage. She also remembered that there had been a cupboard that needed to be repaired. She did not remember who had repaired the cupboard: in particular she had no recollection of the claimant. She did not remember any discussion with Mr Sniegula about the repairs to the roof of the garage while in her son’s bedroom. She said that she was not saying that the discussion had not taken place, just that she had no recollection of it. She was adamant, however, that there would have been no discussion about the possibility of using scaffolding to access the garage roof; the roof was low and scaffolding would not have been required. She did not remember being told what precise work was needed on the garage roof. She regarded it as a small job and had left it to the workmen to do what was necessary.[49]In her witness statement, the defendant went on to say that she recalled that, on a Saturday in June 2006, two men appeared to be working in the vicinity of the garage. She had opened the garage door for them but had had no further involvement in their work. She said that she had not given any instructions to them or required them to use the ladder in her garage to carry out their work. She said that she did not see Mr Huber or anyone else come into the house on that day. She observed that it would not have been possible for anyone to gain access through her son’s bedroom window to the roof without asking someone to unlock the grille and the window. Furthermore, she would not have permitted workmen to gain access through the house. She denied that she had had any conversation with Mr Sniegula about allowing access through the bedroom window. She said that she would not have instructed the workman to carry out the job in any particular way, other than not to enter the house. If the ladder from the garage was used, it was without her knowledge or permission.[50]In oral evidence, the defendant said that she had only a vague recollection of the events of Saturday, 17 June. She did not now remember opening the garage door for the men, as she had described in her witness statement. She had gone out on foot to shop that morning and was absent from the house for about 20 minutes. She remembered seeing two men on the roof as she walked past the garage on her way out. When she returned, they had gone and she assumed that they were having a coffee break. She said that she was unaware of the presence of the ladder in the garage; she never used it. She denied that she had at any time instructed the claimant or Mr Huber to use the ladder to gain access to the roof.[51]The defendant said that it would have been impossible for Mr Huber to gain access to the roof through the bedroom window on the Saturday morning. He would have had to ask for the keys to the windows and grille. She said that the keys would not have been left in the room from the day before, as Mr Huber suggested. She was very particular about security and would not have permitted that to happen. Furthermore, the opening of the grille and window would have made a lot of noise which would have woken her son and attracted attention. She had no recollection of meeting someone who had been into her son’s bedroom whilst he was asleep. She said that she would have remembered such an incident. Nor did she remember any conversation with Mr Sniegula during which he asked if his employees could use the bedroom window as a means of access to the roof. She said that she had had no conversation with the claimant or Mr Huber on that Saturday.[52]The defendant said that, if she had been asked whether the men could come through the house to gain access to the roof, she would first have enquired whether it would be possible for them to get onto the roof another way. If the only way had been through the bedroom window, she would have let them have access that way, provided that they took their shoes off when walking through the house. If the work had been urgent (which she said it was not), she would have woken up her son to permit them to get onto the roof. The claimant’s case Control

The claimant’s case

[53]For the claimant, Mr Buchan contends that, by her actions as described by the claimant and Mr Huber, the defendant exercised de facto control over the way in which the claimant and Mr Huber carried out their work. In particular, it is said that she withdrew the permission to use the bedroom window to access the roof that she had - either expressly or at least by implication - given to them on Friday, 16 June. It is said that she insisted that the men should use the ladder to gain access to the roof at a time when their immediate employer, Mr Sniegula, was absent from site. Mr Buchan argues that, during his absence, Mr Sniegula had, in effect, surrendered control of the work to the defendant. During this time, he was acting merely as a messenger or interpreter, relaying the defendant’s instructions (given in English) to the claimant and Mr Huber in Polish. Mr Buchan contends that, in those circumstances, the defendant owed the claimant a duty under the 2005, 1996 and 1998 Regulations.[54]Regulation 3(2) of the 2005 Regulations provides:
“The Requirements imposed by these Regulations on an employer shall apply in relation to work – (a) by an employee of his; or (b) by any other person under his control, to the extent of his control.” (a) by an employee of his; or (b) by any other person under his control, to the extent of his control.”
[55]Regulation 3(3) states:
“The requirements imposed by these Regulations on an employer shall also apply to – (a) a self-employed person, in relation to work – (i) by him; or (ii) by a person under his control, to the extent of his control; and (b) to any person other than a self-employed person, in relation to work by a person under his control, to the extent of his control.”
The claimant contends that the defendant’s duty under the 2005 Regulations arises by the application of Regulation 3(3)(b). (a) a self-employed person, in relation to work – (i) by him; or (ii) by a person under his control, to the extent of his control; and (b) to any person other than a self-employed person, in relation to work by a person under his control, to the extent of his control.” (ii) by a person under his control, to the extent of his control; and[56]Regulation 4 of the 1996 Regulations provides:
“(1) Subject to paragraph (5), it shall be the duty of every employer whose employees are carrying out construction work and every self-employed person carrying out construction work to comply with the provisions of these Regulations insofar as they affect him or any person at work under his control or relate to matters which are within his control. (2) 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. (3) Subject to paragraph (5), it shall be the duty of every employee carrying out construction work to comply with the requirements of these Regulations insofar as they relate to the performance of or the refraining from an act by him.”
It is contended that the defendant’s duty under the 1996 Regulations arises pursuant to Regulation 4(2).[57]Mr Buchan draws attention to the difference between the provisions in the 2005 and 1996 Regulations and those contained in the 1998 Regulations. Under Regulation 3(3)(b) of the 1998 Regulations, the requirements imposed on an employer also apply, inter alia: “ … (5), to a person who has control to any extent of - (i) work equipment;(ii) a person at work who uses or supervises or manages the use of work equipment; or(iii) the way in which work equipment is used at work, and to the extent of his control.” (i) work equipment;(ii) a person at work who uses or supervises or manages the use of work equipment; or(iii) the way in which work equipment is used at work,[58]However, Regulation 3(4) of the 1998 Regulations provides that:
“Any reference in paragraph (3)(b) to a person having control is a reference to a person having control in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not).”
[59]Mr Buchan submits that the absence from the 2005 and 1996 Regulations of any similar restriction on the circumstances in which a person should be treated as “having control” makes clear that those Regulations are intended to apply, inter alia, to situations whereby a householder assumes control of work being performed at his property. He cited the case of Jennings v The Forestry Commission [2008] EWCA Civ 581, which concerned the 1998 Regulations.[60]Jennings involved a claim by a self-employed man who had sustained injury when his LandRover went out of control on a steeply sloping field on which he was driving in the course of carrying out fencing work for the Forestry Commission. He alleged that the Forestry Commission had assumed control over his work equipment (the LandRover). In the course of his short judgment (at paragraph 48), Sir Paul Kennedy noted “in passing” the terms of Regulation 3(4) and observed:
“So a householder who employs a contractor to do work on his home, and then sees the contractor using his equipment in a way which appears to be dangerous, is not in breach of Regulation 3 if he does not intervene.”
That was not the situation in Jennings since the Forestry Commission were plainly carrying on an “undertaking” within the meaning of Regulation 3(4).[61]Mr Buchan submits that it is to be inferred from the words of Sir Paul Kennedy that, since there is no equivalent of Regulation 3(4) in the 2005 or 1996 Regulations, it must have been intended that those Regulations – unlike the 1998 Regulations – should apply to a householder who assumes control of work being done on his or her property.[62]Mr Buchan submits that it is clear from the authorities that the question of whether or not an individual exercises control over another person (Regulation 3(3)(b) of the 2005 Regulations) or “controls the way in which any construction is carried out” (Regulation 4(2) of the 1996 Regulations) is an issue of fact. He cited the case of McCook v Lobo [2002] EWCA Civ 1760, in which Judge LJ (as he then was) referred to Regulation 4(2) of the 1996 Regulations before saying, at paragraph 16:
“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 regulation 4(1). That, therefore, identifies the starting point. But someone who is not an employer may also be bound by the statutory obligation under regulation 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 regulation 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”
[63]The circumstances of McCook were very different from those in the present case. In McCook, the defendant was the occupier of premises. He did not direct how the work should be done and was not present at the time the work was being performed. The Court of Appeal found that he had not been in control of the relevant work. At paragraph 28 of McCook, Hale LJ (as she then was) underlined that the issue of control was an issue of fact. She said:
“Regulation 4(2) of the 1996 Regulations to my mind depends entirely on the question of factual control.”
[64]Mr Buchan submits that, by interfering in the work being done by the claimant and Mr Huber, the defendant plainly exercised control over the two men and over the way in which they carried out their work. Thus, she owed them a duty under the relevant Regulations.

Breach of the Regulations

[65]The claimant alleges multiple breaches of the 2005, 1996 and 1998 Regulations. The breaches alleged are as follows: Under the 2005 Regulations• a failure to ensure that the claimant’s work at height was carried in a manner which was properly planned and so far as was practicable was safe, contrary to Regulation 4(1);• a failure to identify the measures required by the 2005 Regulations or to take account of a risk assessment, contrary to Regulation 6(1);• a failure to provide suitable and sufficient measures to prevent, so far as was reasonably practicable, the claimant from falling a distance liable to cause personal injury, contrary to Regulation 6(3);• a failure to ensure that the work that was carried out using an existing means of access and egress, contrary to Regulation 6(4)(2);• a failure, in selecting the equipment to be used by the claimant for work at height, to take account of the working conditions and risk to the safety of the claimant, the distance to be negotiated and the distance and consequences of a potential fall, contrary to Regulation 7(1);• a failure to select work equipment, the characteristics of which were appropriate to the nature of the work to be performed and foreseeable loadings, which allowed passage without risk and was in other respects the most suitable work equipment, contrary to Regulation 7(2); and• a failure to comply with the requirements in respect of ladders imposed by Schedule 6, contrary to Regulation 8(e). Under the 1996 Regulations• a failure to supply sufficiently safe access to and egress from the claimant’s place of work or to make and keep safe the place at which he was working, contrary to Regulation 5(1);• a failure to keep the claimant’s place of work safe, contrary to Regulation 5(2); and• a failure to provide equipment which was safe and suitable for the purpose for which it was used, contrary to Regulation 27(1).

(a) Negligence

[66]In addition, the claimant alleges negligence on the part of the defendant by employing Mr Sniegula when, it is said, she knew or ought to have known that he was incompetent, uninsured and disreputable. Mr Buchan invites me to find that he was a “cowboy” contractor. He argues that the issue of Mr Sniegula’s competence and reputation having been raised by the claimant in the Particulars of Claim, it is for the defendant to rebut the allegations. This, he says, she has failed to do. He submits that I should therefore find that the defendant was negligent as alleged.

The defendant’s case

[67]Mr Pershad contends that, if I accept the defendant’s evidence in its entirety, the claim must fail. He argues that, even if I were to accept that the defendant acted in the ways described by the claimant, her actions would still not be such as to establish that she exercised the necessary degree of control over the claimant or the way in which he carried out his work.[68]Mr Pershad referred to the words of Judge LJ in McCook (quoted at paragraph 62 above) and in particular to his observation that the “obvious person” to exercise control over the way in which work was carried out would be an employer. He emphasises that the issue of whether or not any other person exercised the necessary degree of control so as to bring himself or herself within the Regulations is a matter of fact.[69]Mr Pershad says that, if the defendant had refused to permit the claimant and Mr Huber to access the roof through the bedroom window, she would merely have been asserting the ordinary right of an occupier of land to deny access to her property. She would have been exercising control over her property, not over the way in which the work was carried out. She was entitled to specify conditions on which the work should be done. It was for the claimant’s employer, Mr Sniegula, to devise a safe system of work, taking into account those conditions and all the relevant risks.[70]Mr Pershad submits that the evidence of the claimant and Mr Huber made clear that the instruction to proceed with the work using the ladder came from Mr Sniegula, not the defendant. The defendant had no authority to compel the claimant or Mr Huber to do anything. They said that they had had no option but to agree to carry out the work because Mr Sniegula was their “boss”. It was, Mr Pershad submits, Mr Sniegula’s decision to proceed. There was no suggestion that the defendant was insisting that the work had to be done that day. Mr Sniegula could and should have instructed the claimant and Mr Huber to postpone the work until the appropriate equipment was available. In short, Mr Pershad submits that there is no evidence that the defendant had at any stage assumed that degree of control over the claimant or the way in which he did his work which would give rise to a duty under the Regulations.[71]Mr Pershad emphasises the extremely wide-ranging nature of the requirements of the relevant Regulations, as demonstrated by the large number of breaches alleged against the defendant. He observes that, if those requirements are to be imposed upon householders in circumstances such as the present case, it would have far reaching consequences. It would place a very substantial burden upon individuals who engage contractors to carry out work on their homes. In most cases, such individuals would not have the necessary expertise to enable them to comply with their duties under the Regulations. They might have to consider employing specialist works managers to ensure that they (and any contractors employed by them) were complying with their statutory duties. Mr Pershad argues that this would be wholly inconsistent with the responsibilities that can sensibly be imposed upon a householder who employs contractors to carry out straightforward and relatively minor household repairs.[72]Mr Pershad contends that primary liability for the claimant’s accident lies with Mr Sniegula, who was guilty of breaches of the relevant Regulations and of negligence. He suggests that the claimant himself must also bear some responsibility for his accident. He had done roofing work in the past and was well aware that it was unsafe to use the ladder because of its inadequate length and the uneven surface on which it had to stand.[73]As to the allegations of negligence made against the defendant, Mr Pershad submits that there is no evidence that the defendant had any grounds, prior to the claimant’s accident, to believe that Mr Sniegula was not a reputable contractor. He had been recommended to her and had carried out work for her on a previous occasion, apparently without incident. There is, Mr Pershad points out, no duty on a householder to enquire whether a contractor whom he or she intends to employ is insured and it is difficult to see how such a duty could be enforced or complied with effectively. Discussion and conclusions Factual findings

Discussion and conclusions

[74]I am not satisfied that any of the witnesses gave a wholly reliable account of the relevant events. Even allowing for language difficulties and the passage of time, the claimant’s oral evidence was at time confused and inconsistent both with his witness statement and internally. There were parts of his evidence which I reject entirely.[75]An example of such a part is his account of the events that occurred immediately after he and Mr Huber had reluctantly agreed between themselves that they would have to proceed with the work using the ladder. The evidence that the claimant gave of a subsequent telephone conversation with Mr Sniegula (when he claimed that he told Mr Sniegula that he did not want to use the ladder and Mr Sniegula begged him to do so) made no sense, given the decision which he and Mr Huber had just reached. The claimant claimed that, during that telephone call, he had asked Mr Sniegula to ring the defendant again and to tell her that, if she did not agree to Mr Huber and himself using the bedroom window to access the roof, they would leave the property. The issuing of such an ultimatum would have been completely contrary to the agreement that the claimant had previously reached with Mr Huber and entirely inconsistent with their fear that, if they refused to get on with the job, they might not receive any further work from Mr Sniegula. The claimant’s account was that Mr Sniegula agreed to telephone the defendant again and did so. It is in my view highly unlikely that Mr Sniegula would have agreed to make another telephone call to the defendant, let alone issue an ultimatum to her. Moreover, having issued the ultimatum (as he claims), the claimant then did nothing to carry it through when the defendant’s refusal was communicated to him by Mr Sniegula.[76]The claimant went on to describe how, after he had made the telephone call to Mr Sniegula, the defendant came out to the garage and shouted at him that he should use the ladder to access the roof. If that had happened, I would have expected Mr Huber (who had set off to access the roof through the bedroom window immediately after he and the claimant had decided that they would have to go ahead with the work) to have seen and heard the incident from the roof. Yet Mr Huber made no mention of it in his witness statement or in oral evidence. Nor did he mention the subsequent telephone call which the claimant said Mr Sniegula made to him, informing him that the defendant would not agree to let the two men use the bedroom window to access the roof.[77]I find that this part of the claimant’s evidence was a fabrication. I am satisfied that, once Mr Huber and the claimant had decided they would have to proceed with the work, Mr Huber went onto the roof while the claimant put the ladder in place. The accident happened very shortly thereafter. There was no intervening conversation between the claimant and Mr Sniegula or the defendant. That would accord with Mr Huber’s evidence.[78]On the whole, I found Mr Huber’s account a good deal more reliable than that of the claimant. Insofar as there are inconsistencies between his account and that of the claimant, I prefer Mr Huber’s evidence.[79]So far as the defendant is concerned, I do not accept that her recollection of events was as poor as she claims. I accept that, since she was unaware of the accident for some time after it occurred, she would have had no particular reason to remember the events of the relevant days with any clarity. However, I did not get the impression that she was being frank about the extent of her recollection.[80]Despite the fact that the accident was not immediately reported to the defendant and that no request for help was made after it had occurred, I find that the accident happened in the way described by the claimant and Mr Huber. I am satisfied that the reason why it was not reported (a fact that would in usual circumstances raise doubts as to whether it had happened at all) was because of Mr Sniegula’s insistence that the defendant should not be told about it, presumably because he did not wish to damage his reputation with her.[81]I accept also the evidence of the claimant and Mr Huber that, on Friday, 16 June, the defendant was present in the bedroom when her housekeeper, Melanie, was showing Mr Sniegula, the claimant and Mr Huber around the house and that the defendant gave permission, either expressly or implicitly, for Melanie to open the bedroom window to allow the men access to the roof for the purpose of ascertaining what work needed to be done. I do not, however, accept that there was any discussion at that time as to how the roof was to be accessed for the purpose of carrying out any work that was necessary. At that time, the inspection of the roof had not taken place and the extent of the work to be done, and the nature of the equipment required to do it, were not known. It would have made no sense to discuss the question of access to the roof at that stage.[82]I do not accept either that there was any discussion about scaffolding and/or the expense thereof at that time. Any such discussion would have been premature. In his oral evidence, the claimant said that when, the following day, he and Mr Huber were protesting to Mr Sniegula about the dangers of using the ladder, Mr Sniegula said that scaffolding would be too expensive. It may be that scaffolding (as well as the use of long ladders) was discussed at that time. However, scaffolding was not used to complete the work even after the claimant’s accident and the likelihood is, in my view, that it was never mentioned at all. By the time the inspection of the roof had taken place on Friday, 16 June, the defendant had left the bedroom. There was no evidence of any other discussions with her that day about the work that was to be done or about access to the garage roof.[83]I find that Mr Sniegula, the claimant and Mr Huber all made an assumption that the two men would be permitted to access the roof by means of the bedroom window. However, I am quite satisfied that there was no agreement by the defendant – whether expressly or implicitly – that this would be so.[84]I am quite satisfied also that, if the defendant had been asked whether she would allow access to the roof from the bedroom window in order for work to be carried out (as opposed to for the purpose of inspecting the roof), she would have refused permission. In her witness statement she said this:
“I have white carpets throughout the house. I would not have permitted men in work clothes, work boots and carrying equipment such as gas cylinders and rolls of felt to trample up the stairs and through bedrooms.” and “I would not have instructed the workmen to carry out the job in any particular way, other than not to enter the house.”
[85]Those passages, in my view, correctly reflected her attitude. In oral evidence, the defendant said that, if the window had been the only means of access available, she would have allowed the men to use it. However, it is plain that it was possible to access the roof without going inside the house. In those circumstances, I am satisfied that she would not have entertained the idea of the claimant and Mr Huber using the house as a means of access for their work.[86]I accept the evidence of the claimant and Mr Huber that Mr Huber took the blowtorch onto the roof via the bedroom window and that he encountered the defendant on his way back through the house. It is difficult to see how, if this had not happened, Mr Huber could have known that the defendant’s son was asleep in the bedroom at the time. Furthermore, there would be no reason for the claimant and Mr Huber to invent the incident. I find that, when she encountered him, the defendant was angry that he should have used her son’s bedroom window to gain access to the roof, particularly when he was sleeping there. I am satisfied that she made clear to Mr Huber – and to Mr Sniegula in a subsequent telephone conversation – that she would not allow the men access to the roof through the bedroom window. It seems to me highly unlikely that the defendant would have forgotten this encounter with Mr Huber or the subsequent telephone conversation with Mr Sniegula. As I have said previously, I did not get the impression that she was being frank about the extent of her recollection of events.[87]I accept also that Mr Huber had another encounter with the defendant inside the house when she caught him making his way from the roof to the driveway outside the garage after the claimant’s fall. She was angry that he had ignored her instruction not to use the window to gain access to the roof and again forbade him from doing so.[88]I do not, however, accept that the defendant at any time instructed or directed the claimant or Mr Huber about the equipment they should use to gain access to the roof. She does not strike me as a person who would be sufficiently interested in the work to involve herself in any discussions as to how it was to be done. Her sole aim was, I find, to get the job done with the minimum inconvenience to herself and her family. In her witness statement, she said this:
“I would not have given the workmen any instruction as to how to carry out their work and I would not have instructed them to use a stepladder. I engaged a builder so that he would make that decision.”
[89]It seems to me, that that paragraph accurately describes her attitude. I do not therefore accept that it was at her instigation or insistence that the ladder was used to carry out the work. I find that the defendant’s contribution was confined to an insistence that the men should not access the roof through the bedroom window.[90]I do not accept that Mr Sniegula told either the claimant or Mr Huber at any time before the claimant’s fall that it was the defendant who had said that they should use the ladder to gain access to the garage roof. It is possible that, after the accident, Mr Sniegula told the claimant and/or Mr Huber that it had been the defendant who had insisted on the use of the ladder. If he did, I find that the assertion was untrue and that he made it in an attempt to exculpate himself. However, I am quite satisfied that he did not make that assertion before the accident occurred.[91]The defendant’s refusal to allow the men access to the garage roof via the bedroom window produced a dilemma for Mr Sniegula: either the job could be done that day using the ladder that was available or it would have to be postponed until appropriate equipment could be obtained. I accept the defendant’s evidence that, so far as she was concerned, postponement of the work would not have caused any problem. It is unlikely that the job was particularly urgent. The leak had occurred during the summer months. There was no reason, from the defendant’s point of view at least, why the job could not have been done (as it subsequently was) some time during the week commencing 19 June 2006, when suitable equipment had been obtained. Nevertheless, Mr Sniegula insisted that the claimant and Mr Huber should carry on with the job using the ladder. He was aware of their concerns about safety (and should in any event have been aware of the risks) but nevertheless insisted that they should go ahead with the work. They did so because, as Mr Huber acknowledged, they did not have any option since he was their “boss”.

Control

[92]The 2005 Regulations apply, in the case of a non-employer, to “work by a person under his control, to the extent of his control”. The 1996 Regulations impose a duty on a non-employer who “controls the way in which the construction work is carried out by a person at work” to comply with the Regulations “insofar as they relate to matters which are within his control”. I am entirely satisfied that the defendant did not assume control over the claimant, in the sense of being able to direct how he carried out his work. She was entitled to – and did – impose limits on (and thereby control) his access to her property, by refusing him entry to the house for the purpose of gaining access to the roof. She did that in her capacity as an occupier, not as a person controlling the way in which he carried out his work. That was the extent of any control she exercised over him. She had no right to instruct him or direct him in his work. That right belonged at all times to his employer, Mr Sniegula. The suggestion made by Mr Buchan - that Mr Sniegula had delegated control of the claimant and Mr Huber to the defendant in his absence and that he was acting merely as a conduit for communicating the defendant’s instructions to them - is in my view fanciful. It flies in the face of their evidence that it was Mr Sniegula who directed them to proceed with the work using the ladder and that it was because he (the “boss”) so directed them that they pressed on with the work, despite their concerns.[93]It is apparent that the defendant would not have had the necessary knowledge or expertise to devise and direct the claimant and Mr Huber in a safe method of carrying out the work. She was in the position in which most householders find themselves when arranging for household repairs to be carried out. They engage contractors whom they hope and believe will be capable of doing a reasonably competent job and (within certain limits) leave them to get on with the job. Some may lay down ground rules as to which parts of their property contractors can access and which are “out of bounds”. It cannot, in my view, be the case that, merely by setting such limits, they are to be taken to assume control for the contractor’s employees and for the way in which those employees carry out their work, such that they owe to those employees the extensive array of duties contained within the 2005 and 1996 Regulations. If such duties were to be imposed upon an individual householder, it would, in my view, be in circumstances very different from the present case: for example, perhaps, where the householder had played an unusually large role in the planning, management and/or execution of the relevant work.[94]I find that the defendant owed the claimant no duty under the 2005 or the 1996 Regulations. The 1998 Regulations contain the limitation at Regulation 3(4) which I have referred to at paragraph 58 above. In the light of the defendant’s position as a householder, she can owe no duty under those Regulations.

Negligence

[95]The actions of Mr Sniegula in insisting that the work on the roof should proceed despite the absence of suitable equipment - and in failing, even when the work on the roof was resumed after the accident, to ensure a safe system of work - suggest that he was (in respect of this work at least) irresponsible and incompetent. The fact that he sought to conceal the accident from the defendant and that he had no appropriate insurance cover also suggests that he may have deserved the epithet suggested by Mr Buchan of a “cowboy” operator.[96]There is, however, no evidence to suggest that the defendant was, or should have been, aware of that fact prior to the relevant events. Indeed, there is every reason to believe that she was not. Mr Sniegula had been recommended to her and she had previous experience of his work. She continued to use him after the accident. The house at 2 Frognal Way was a substantial and valuable property. The impression that the defendant gives is that she is a person of exacting standards. It seems highly unlikely that she would have employed a contractor whom she knew or believed to be a “cowboy” operator. There was moreover no duty on her to enquire whether Mr Sniegula was properly insured.[97]Accordingly (and leaving aside the question of whether the defendant would in fact have owed a duty of care to the claimant not to engage his incompetent employer to carry out work for her), I find that there is no evidence of negligence on the part of the defendant.[98]I have considerable sympathy for the claimant who sustained serious injuries as a result of his accident. However, responsibility for that accident lay with his employer, not this defendant. The fact that the claimant will receive no compensation for his injuries results from his employer’s failure to have proper insurance. That failure does not mean that he can look to the defendant to make good his loss.[99]There will be judgment for the defendant.

Cited in 1 later judgment