Donaghey v Boulton & Paul Ltd
[1967] 2 All ER 1014Between: Donaghey
And: Boulton & Paul Ltd
Judges:
Viscount Dilhorne
Lord Reid
Lord Hodson
Lord Guest
Lord Pearson
Subject References:
Building
Building regulations
Roof
Roof work
Fragile materials covering roof
Fall through hole in roof under repair
Liability of contractors to servant of sub-contractor
Employee of sub-contractors falling through gap whilst re-positioning asbestos sheet
Crawling boards provided but not used
Foreman of contractors and of sub-contractor present but neither ensured that crawling boards used
Legislative References:
Building (Safety, Health and Welfare) Regulations, 1948, SI 1948 No 1145 - reg 4 (ii); reg 31(1); reg (3)
Case References:
Bailey v Ayr Engineering & Constructional Co Ltd - [1958] 2 All ER 222; [1959] 1 QB 183; [1958] 2 WLR 882; Digest (Cont Vol A) 604, 353a
Ginty v Belmont Building Supplies Ltd - [1959] 1 All ER 414; Digest (Cont Vol A) 597, 333a
Gorris v Scott (1874) - LR 9 Exch 125; 43 LJEx 92; 30 LT 431; 2 Digest (Repl) 365, 459
Grant v National Coal Board - [1956] 1 All ER 682; [1956] AC 649; 2 WLR 725; 33 Digest (Repl) 901, 1332
Hughes v Lord Advocate - [1963] 1 All ER 705; [1963] AC 837; [1963] 2 WLR 779; Digest (Cont Vol A) 1143, 89a
Mulready v J H & W Bell Ltd - [1952] 2 All ER 663, varied, CA; [1953] 2 All ER 215; [1953] 2 QB 117; [1953] 3 WLR 100; 24 Digest (Repl) 1075, 327
Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd, The Wagon Mound (No 1) - [1961] 1 All ER 404; [1961] AC 388; [1961] 2 WLR 126; [1961] 1 Lloyd's Rep 1; [1961] ALR 569; Digest (Cont Vol A) 1148, 185a
Public Works Comrs v Angus & Co, Dalton v Angus & Co - [1881-85] All ER Rep 1; (1881), 6 App Cas 740; 50 LJQB 689; 44 LT 844
affg sub nom Angus v Dalton - (1878), 4 QBD 162; 34 Digest (Repl) 198, 1394
Judgment date: 20 June 1967
ORDER
The respondents were sub-contractors of a company which had undertaken work that included repairing the roof of an aircraft hangar. The repair of the roof had been sub-contracted to the respondents. Part of this work of repair was carried out by servants of the respondents, and part was sub-contracted by the respondents to P O'Brien & Co. The respondents provided the necessary materials and safety apparatus, but P O'Brien & Co supplied the labour. The appellant, who was employed by P O'Brien & Co was engaged in carrying out repairs to the roof of the hangar by replacing damages asbestos sheets. The roof was constructed with a number of ridges running cross-wise. The apex of each ridge was sixty-two feet from the ground, the slope of each ridge finishing at a gutter fifty feet from the ground and then sloping upwards to the next ridge. The slope of the roof where the appellant was working was twenty-two degrees. There was no evidence that the roof was slippery or as to the state of the weather. By para (1) of reg 31 [F1] of the Building (Safety, Health and Welfare) Regulations, 1948, where work was done on a sloping roof and, taking into account the pitch, the nature of the surface, and the state of the weather, a person was likely to slip down or off the roof, suitable precautions had to be taken to prevent his so falling. By para (3) of reg 31 where work was being done on roofs covered with fragile materials (as this roof was) "through which" a person was liable to fall, crawling boards were to be provided and used. Crawling boards were available on the ground in the present case, but they were not on the roof and were not used. Whilst the appellant and another workman were re-positioning one of the re-laid asbestos sheets, the appellant lost his balance and fell through an open space in the roof (not through the asbestos sheeting) to the ground, thereby sustaining serious injuries.
At the time of the accident the respondents' foreman was in charge, and it was part of his job to see to the sheeting, but he left it to P O'Brien & Co's foreman to use his own judgment as he was a qualified man. P O'Brien & Co were without means and uninsured. On appeal in an action for damages for personal injuries against P O'Brien & Co and the respondents, the claim against the respondents being based on alleged breach of statutory duty under reg 31,
Held-
(i) the respondents were liable to the appellant in damages for breach of statutory duty, because-
- (a)
- the respondents had not divested themselves of control over the execution of the work and consequently the work was being "performed" by them within the meaning of reg 4(ii) [F2] of the Building (Safety, Health and Welfare) Regulations, 1948; accordingly they were under statutory duty to comply with the requirements of reg 31 (see p 1020, letter i, p 1022, letter a, p 1023, letters g and i, p 1026, letter i, and p 1031, letters f and g, post).
- Decision of Pearson J in Mulready v J H & W Bell Ltd ([1952] 2 All ER 663) approved; principal ratio decidendi of the Court of Appeal in the same case ([1953] 2 All ER 215) disapproved.
- (b)
- the respondents were in breach of reg 31(3) as crawling boards were not used; and the appellant was entitled to the benefit of that enactment since the mischief against which it was directed was the risk of an injury to an employee workman from a fall from the roof, and the fact that the accident had not happened in precisely the way contemplated by reg 31(3), as the fall had been through an open space not through fragile material, did not exclude the respondents' civil liability (see p 1019, letters g to i, p 1025, letter e, p 1026, letter c, p 1028, letter g, p 1030, letter g, and p 1031, letter g, post).
- Gorris v Scott ((1874), LR 9 Exch 125) and Ginty v Belmont Building Supplies Ltd ([1959] 1 All ER 414) distinguished.
(ii) reg 31(1) did not apply, because it was directed to the risk of slipping down or off a roof and falling from the edge of the roof and not, as in the present case, falling through a hole in the roof (see p 1018, letter f, p 1024, letter c, p 1026, letter i, p 1029, letter f, and p 1031, letter g, post).
Notes
As to safety provisions for roof work under building regulations, see 17 Halsbury's Laws (3rd Edn) 127, para 206 notes (k), (l); and for cases on the subject, see 24 Digest (Repl) 1075, 327; 1077, 333, 334; 1081, 361-363.
For the Building (Safety, Health and Welfare) Regulations, 1948, reg 4, reg 31, see 8 Halsbury's Statutory Instruments (1st Re-Issue) 189, 202.
Per curiam: although the point that reg 31(1) did not apply in the circumstances of this case was not taken before the trial judge, the Court of Appeal had been right in allowing it to be raised on appeal before them (see p 1024, letter a, p 1026, letter i, p 1028, letter h, and p 1031, letter g, post).
Decision of the Court of Appeal (sub nom Donaghey v P O'Brien & Co ([1966] 2 All ER 822) reversed on holding (iii) of that report, viz, as regards reg 31(3), affirmed on holding (ii), viz, as regards reg 31(1), and approved on holding (i) of that report, viz, allowing the contention regarding reg 31(1) to be raised; and reversed, in the result, as regards liability.
Appeal
This was an appeal by Eddie Conaghey from an order of the Court of Appeal (Willmer, Davies and Russell LJJ), dated 25 May 1966, and reported sub nom Donaghey v P O'Brien & Co in [1966] 2 All ER 822, allowing the appeal of the respondents, Boulton & Paul from a judgment of James J given at Bedford Assizes on 3 February 1966, whereby the appellant was awarded £13,873 1s 2d damages for personal injuries against his employers, P O'Brien & Co and the respondents.
In an action commenced by writ dated 5 November 1962, the appellant alleged negligence and breach of statutory duty under reg 31 of the Building (Safety, Health and Welfare) Regulations, 1948, against the employers and the respondents. The employers entered an appearance and filed a defence but, being uninsured and without funds, took no part in the trial and allowed the appellant's claim against them to go by default. Negligence was not established at the trial as against the present respondents, but it was found that they were in breach of statutory duty under reg 31(1). Contributory negligence on the part of the appellant was established at the trial, he being held to be twenty-five per cent at fault. The facts are set out in the opinion of Viscount Dilhorne.
Their Lordships took time for consideration