Donaghey v Boulton & Paul Ltd
[1967] 2 All ER 1014(Judgment by: Lord Reid)
Between: Donaghey
And: Boulton & Paul Ltd
Judges:
Viscount Dilhorne
Lord ReidLord 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
Judgment by:
Lord Reid
My Lords, the appellant was not employed by the respondents and he was not injured by the negligence of any servant of the respondents. He can only succeed if he can show that the respondents were in breach of a statutory regulation and that that breach caused his accident. He relies on regs 4 and 31 of the Building (Safety, Health and Welfare) Regulations, 1948.
The first question is whether the respondents had any duty under reg 4 to comply with reg 31. A firm of contractors, not parties to this case, had undertaken certain work which included repair work on the roof of a large hangar at Luton Airport. They had then sub-contracted for that repair work with the respondents. Part of that work was being performed by the respondents' servants but they made a further sub-contract with a small firm, P O'Brien & Co. We do not have the terms of that sub-contract and it may not have been in writing; but it is clear that the substance of it was that O'brien supplied labour for the fixing of absestos sheets on the roof while the respondents supplied the necessary materials and safety apparatus. The appellant was employed by O'Brien on this work. He seeks damages from the respondents because, although O'Brien was clearly liable, O'Brien was not insured and has no means. [His Lordship read the relevant part of reg 4, which is set out at p 1027, letters c and d, post, and continued:] It is not disputed that the respondents were a contractor within the meaning of this regulation, and that, if they were "performing" the work in the course of which the appellant was injured, they were bound to comply with the regulations specified; but they say that they were not performing this work, because it was being performed by O'Brien and his servants. They say that the case of Mulready v J H & W Bell Ltd was wrongly decided.
In Mulready's case, as in this case, the defendants had bus-contracted for certain work on a roof and the plaintiff was employed by the sub-contractor. My noble and learned friend, Lord Pearson, who was the trial judge, held ([1952] 2 All ER at p 664, letter h) that this was a sub-contract of a very partial and minor character and that the defendants had remained in effective charge and control of the work. For that reason he held ([1952] 2 All ER at p 665, letter e) that they were undertaking the building operation and performing the work in the course of which the plaintiff was injured. The Court of Appeal, however, added reasons which went much farther. They held that a duty was cast on the contractors by reg 4 which they could not avoid by sub-contracting.
The Court of Appeal ([1953] 2 All ER at p 218, letter d; [1953] 2 QB at p 125) relied on the well-known statement by Lord Blackburn in Public Works Comrs v Angus & Co Dalton v Angus & Co ([1881-85] All ER at p 26; (1881), 6 App Cas at p 829):
"... a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching on him of seeing that duty performed by delegating it to a contractor."
There, however, the position was that the landowner clearly owed a duty to his neighbour not to withdraw support from his building, and the question was whether it was any answer to say that he had employed a competent contractor to carry out the work which withdrew the support. Here the position is quite different. The question is whether any duty under reg 4 ever attaches to a contractor who, by sub-contracting before the work is begun, puts the sub-contractor in complete charge of the work. The Court of Appeal appear to have assumed that it does, but, in my view, this must depend on the proper construction of the regulation.
In the first part of reg 4 "undertaking" might mean carrying out an operation, or it might mean entering into a contract which requires the operation to be carried out. I shall assume that it has the latter meaning; but there is nothing unusual or improper in sub-contracting, and "undertaking" cannot carry the implication that the contractor must be treated as having undertaken to employ only his own servants to carry out the operations. The duty is to comply with such of the requirements of (in this case) reg 31 as relate to "any work, act or operation performed or about to be performed" by the contractor. So no duty can arise until work is about to be performed by the contractor; and, if the extent of his sub-contracting is such that he never in any real sense "performs" the work, I do not see how the contractor can be under any duty under this provision. These regulations have the practical purpose of promoting safety, and it is right that duties under them should attach to all who take part in the performance of the work; but I can see no ground for attaching an artificial meaning to "performing" work so that a contractor is deemed to perform work merely because he has employed a sub-contractor to do it. That would be creating vicarious liability for no useful purpose so far as safety is concerned: for, if the contractor has no right under his contract with the sub-contractor even to supervise the sub-contractor's operations, he cannot do anything to promote safety. I am, therefore, of opinion that Mulready's case was rightly decided on the grounds stated by my noble and learned friend, Lord Pearson, but that the additional grounds stated by the Court of Appeal are unsound.
Then the question arises whether, on the facts of this case, the respondents were performing or taking part in the performance of the work or operations in the course of which the appellant was injured. Not only were the respondents responsible for seeing that materials and safety apparatus were available when required, but the respondents' foreman says that he was there "to keep an eye on what was going on". This is not surprising because there were several gangs working on the roof and it is hardly credible that each gang was entitled to do its work as and when it pleased. This foreman says that he and O'Brien's men were working in conjunction with each other. He left technical decisions to O'Brien's foreman because O'Brien's man was an expert in this field and the respondents' foreman was not. That, however, is what normally happens when the subordinate alone is an expert. I think that, as in Mulready's case, this was, to use the words of my noble and learned friend, a sub-contract of a very partial and minor character. So the respondents were responsible for complying with the requirements of reg 31.
Before James J it was not contended that reg 31(1) did not apply. This matter was raised before the Court of Appeal and I think that that court rightly allowed the point to be taken. It my view, this provision has no application to this case: it only applies if the workman is likely to slip down or off the roof and liable to fall a distance of more than six feet six inches "from the edge of the roof". It was not contended that the appellant was liable to fall from the edge of the roof in the ordinary sense. Where he was working two roofs of two bays sloped down to meet at a gutter and if he had slipped down the roof he would have slipped to this gutter and not have fallen at all. He fell, however, through an opening in the roof and it is said that the edges of this opening were edges of the roof. I do not agree. Openings in the roof are dealt with in reg 30, and in reg 31 I see no reason to extend the ordinary meaning of "edge of the roof" to include the edge of a hole in the roof.
Regulation 31(3) raises a more difficult point. Regulation 31(3) is as follows:
- "(3)
- Where work is being done on or near roofs or ceilings covered with fragile materials through which a person is liable to fall distance of more than ten feet-
- (a)
- where workmen have to pass over or work above such fragile materials, suitable and sufficient ladders, duck ladders or crawling boards, which shall be securely supported, shall be provided and used;
- (b)
- prominent notices stating that the coverings are fragile shall be affixed to the approaches thereto.
- Provided that sub-para (b) shall not apply as respects glass coverings."
It was not denied that this roof was of fragile material and it could hardly be denied that, although the appellant in fact fell through a hole in the roof, he might from the place where he was working have fallen on to and through a part of the roof. That was sufficient to bring this provision into operation, and therefore there was a duty to see that crawling boards or one of the other things specified should be provided and used. The respondents had provided crawling boards somewhere on the ground nearby. The appellant wanted to use them, but he was dissuaded or prevented by O'Brien's foreman. There is uncontradicted evidence that their use might well have prevented this accident, and I would therefore hold it proved that failure to use them involved a breach of the respondents' duty to comply with this regulation, and that that breach caused this accident; but it is argued that that is not sufficient to make the respondents civilly liable to the appellant.
First, the respondents rely on Ginty v Belmont Building Supplies, Ltd. One might be pardoned for thinking that the result reached in that case was obvious. The employer had done all that he could to prevent breach of a regulation, but his servant disobeyed his orders, acted in breach of the regulation, was injured as a result, and then claimed damages from the employer. Of course he failed; the accident was entirely his own fault. But that bears no resemblance to the present case. The respondents brought in O'Brien as sub-contractor, but, for the reasons which I have given, they remained bound to comply with the regulations and therefore liable to be sued for damage caused by a breach. The main cause of the breach which caused this accident was the fault of O'Brien's foreman. I find nothing in the authorities to entitle the respondents to disregard the fault of this foreman and succeed on the false basis that the appellant was solely to blame for the breach and the accident caused by it.
Then the respondents rely on Gorris v Scott. There a regulation required that pens should be provided in any vessel in which animals were imported. Sheep were carried in a vessel without there being such pens, and it was alleged that as a result the sheep were swept overboard by the sea; but it was clear that the purpose of the regulation was to prevent the spread of disease: it had nothing to do with the safety of the animals. Kelly CB said that ((1874), LR 9 Exch at p 128):
"... when the damage is of such a nature as was not contemplated at all by the statute, and as to which it was not intended to confer any benefit on the plaintiffs, they cannot maintain an action founded on the neglect."
Later he said ((1874), LR 9 Exch, at pp 129, 130):
"But, looking at the Act, it is perfectly clear that its provisions were all enacted with a totally different view: there was no purpose, direct or indirect, to protect against such damage; ... all the purposes enumerated being calculated and directed to the prevention of disease, and none of them having any relation whatever to the danger of loss by the perils of the sea ... the damage complained of here is something totally apart from the object of the Act of Parliament, and it is in accordance with all the authorities to say that the action is not maintainable."
Pigott B said ((1874), LR 9 Exch at p 130):
"The legislature never contemplated altering the relations between the owners and carriers of cattle, except for the purposes pointed out in the Act; ... its object was not to regulate the duty of the carrier for all purposes but only for one particular purpose."
I entirely agree with that decision: but it was dealing with something very different from the present case. Here one of the main objects of the Factories Act, 1961 was to promote safety: and the sole purpose of the regulations was to prevent men working on a roof from falling to the ground. It is one thing to say that, if the damage suffered is of a kind totally different from that which it is the object of the regulation to prevent, there is no civil liability. It is quite a different thing, however, to say that civil liability is excluded because the damage, though precisely of the kind which the regulation was designed to prevent, happened in a way not contemplated by the maker of the regulation. The difference is comprarable with that which caused the decision in Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd, The Wagon Mound (No 1) to go one way and the decision in Hughes v Lord Advocate to go the other way.
In deciding against the appellant on reg 31(3) Willmer LJ said, with the the approval of the other members of the court ([1966] 2 All ER at p 830, letter d):
"I think it is plain, however, that the mischief against which reg. 31(3) is directed is the risk of a collapse of the fragile material causing the workman to fall through it."
I do not think that that is quite right. The mischief against which the whole regulation is directed is the risk of injury from a fall from the roof, not the risk of collapse of the material. These regulations were made under, inter alia, s 60 of the Factories Act, 1937, and that section provided that where the Secretary of State was satisfied that any process was "of such a nature as to cause risk of bodily injury to persons employed in connexion therewith" he might make regulations to meet the necessity of the case. Regulation 31 requires various precautions in various circumstances in which persons are likely to be injured in certain ways. I do not see why, however, it should follow that a person must be injured in precisely one of these ways before he can recover damages. Suppose a man is standing on a fragile roof near a hole in the roof. There is a breach of the regulation because crawling boards or similar apparatus have not been provided and used. Then he falls because there were no crawling boards. If he falls to his right he falls through the hole. If he falls to his left he falls through the fragile material. Is the law so absurd that if he falls to his right he cannot recover damages, whereas if he falls to his left he can? It appears to me to be a wrong approach to put each separate provision in each separate regulation in a watertight compartment, and then to say that a man must be injured in precisely the way contemplated in that separate provision before he can recover damages.
That a person is to be entitled to recover damages for injury caused by a breach of this kind of regulation is an inference which the courts have drawn from various Acts of Parliament. They were passed for the benefit of employees and it is inferred that Parliament intended that a person injured by reason of a breach of their provisions or of provisions in regulations made under them should have a civil remedy. It would seem odd to go on and infer that Parliament intended to withhold this benefit from every person who, though his injury was caused by a breach, did not suffer that injury in precisely the way contemplated in the statute or regulation. I am not prepared to attribute any such intention to Parliament.
The respondents rely on the decision in Bailey v Ayr Engineering & Constructional Co Ltd. There a regulation required a working place to be "covered in such manner as to protect any person who is working in that place from being struck by any falling material or article". The plaintiff was working in an open shaft in a building under construction when he was hit by a failing block of masonry. His action for damages failed. Parker LJ held ([1958] 2 All ER at p 226, letter b; [1959] 1 QB at p 188) that this regulation did not apply to material which had become part of the structure and affixed to the freehold. I am not concerned whether that was right or wrong: I shall assume it was right; but he appears to have held that the defendants were in breach because they had not provided any covering. He said ([1958] 2 All ER at p 226, letter f; [1959] 1 QB at p 188):
"Accordingly this is a case where they cannot say that they were not in breach of the regulation at all, because it was their duty to take steps to put up some umbrella, albeit only an umbrella designed to prevent materials and debris and tools from falling down. Be that as it may, and assuming, as I do, that they were in breach, it was not that breach which caused the injuries in this case, but the fact that this block of masonry, something which is completely outside the regulation, fell in the way I have described."
I think that he meant that, even if there had been an umbrella sufficient to comply with the regulation, this block was so heavy that it would have crashed through that umbrella and injured the plaintiff in just the same way. If that was his meaning then the breach did not cause the injury and the case does not touch the question which I have been considering. The respondents argue that Parker LJ meant that, even if compliance with the regulation would have prevented this block of masonry from breaking through the covering and injuring the plaintiff, still he could not recover damages for his injury although it would then have been caused by the breach. If he did mean that then I would not agree with him.
I would allow this appeal.