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Clyde & Co successful at trial as homeowner found not to owe a duty of care to contractor

  • 12 March 2021 12 March 2021
  • UK & Europe

  • Insurance & Reinsurance

Clyde & Co has recently been successful at trial defending a homeowner from a claim submitted by a heating and plumbing contractor on the same site. The decision not only resulted in significant savings to our client, it also serves as a useful reaffirmation of duties owed by those deemed to be in control of a workplace, and the relationship between common law and the Occupiers' Liability Act.

Clyde & Co successful at trial as homeowner found not to owe a duty of care to contractor

In summary, whilst our client was found at trial to be in a contractual relationship with the Claimant who was working at her property, she did not give the Claimant instructions on how to carry out his work. Despite the Claimant falling from a ladder whilst on the property, the Claimant as a contractor would have been knowledgeable regarding the use of ladders and competent to use one when needed.

Background

The Claimant was a heating and plumbing contractor working on a site. He alleged the first Defendant (D1) was the head contractor with control over his system of work. In turn, D1 identified our client as the project manager for the work that the Claimant undertook, instructing and paying him directly.

The Claimant's positon was that D1 was carrying out most of the work on site and he did not believe our client had control of the way work was carried out or the route(s) selected by the contractors.

When commencing the work, the Claimant alleged that he was met onsite by D1 who explained how he was to access it. D1 denied this version of events. The Claimant's role was to install a boiler, pipework, underfloor heating and to cement a shower tray in place. Initially, the Claimant accessed the site via a basic domestic ladder at the back of the property, which led to a flat roof and a window. At that time, work on a new extension to the property was underway and the extension was not yet being linked to the main house. The two buildings were eventually merged. At this stage, the Claimant was permitted to gain access via the front door. The Claimant said he was told by D1 that the former route (via the ladder and window) was the only access route our client had approved. Our client denied this, stating that other workmen had used the front door. The carpets were being replaced and therefore there were no concerns about damage occurring.

On the day of the accident, the Claimant alleged he had made several trips up and down the ladder. However, at trial he conceded that the incident happened as he came down the ladder after his first trip that day. Our client's evidence was that they had let the Claimant in through the front door of the house on that day yet the Claimant elected to exit via the ladder. Whilst descending the ladder on this occasion his right foot slipped off the rung and he fell off sustaining serious injuries.

Proceedings were issued against D1. Despite the Claimant’s initial position regarding the involvement of our client, he added our client into proceedings as the Second Defendant following the filing of a Defence pleading that our client was the manager of the work and had instructed the Claimant to carry out the works.

Trial

The matter proceeded to Trial. The judge stated that issues to be addressed were:

  • How the Claimant's accident occurred.
  • Whether D1, as the purported main contractor, owed the Claimant a duty of care for his safety on site.
  • Whether our client owed the Claimant a common law duty of care for safety on site, and/or the extent of the duty owed under the Occupiers' Liability Act 1957 (OLA).
  • If D1 or our client did indeed owe a duty, whether there a breach of that duty.
  • Whether the Claimant contributory negligent.

Handing down judgment, the Judge commented that contractually the position was a difficult one; little thought had been given to what duties each party would owe to the other, particularly in terms of overall control of the site and in terms of safety.

The Claimant's account of the accident was accepted in the absence of witnesses. It could not be established who the ladder belonged to or who had placed it. It was held that D1 was not the main contractor and found there was a direct relationship between our client and the sub-contractors. The Claimant's argument that D1 was the main contractor was rejected; D1's contact with the Claimant was limited.

Although the Claimant and our client were found to be in a contractual relationship, no instructions were given to the Claimant regarding how to go about his work or access the property. It was held that our client was not obliged to instruct the Claimant whether to or how to use the ladder. The Claimant would be expected to have more knowledge. The use of a ladder is not complex and an appointed contractor could be trusted to use a ladder competently and only when needed. Further, it was found our client had not specifically given the Claimant instructions to not use the stairs inside the property.

Concluding, the Court found neither Defendant owed a duty of care to the Claimant. The claim therefore failed, resulting in savings of over £180,000 for our insurer client.

What can we learn?

  • The judge referred specifically to the case of McCook v Lobo [2002]. In this case it was found that the duties owed by a person who is deemed to have control of the workplace is limited only to those ‘matters within that person’s control’.
  • The judge reiterated the relationship between common law and the OLA. It is inappropriate to treat potential liability at common law as explained in Kealey v Heard [1983] as distinguished to the duty of care owed under the OLA unless a distinct and simultaneous relationship arises, for example, employer and employee. The OLA imposes a common duty of care upon the occupier to "take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there". The OLA was amended to regulate the duty an occupier owes to visitors in place of the rules of the common law.
  • The standard of care an occupier is expected to meet is the standard of a reasonable occupier, which is no different from the usual common law negligence standard of care.

End

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