Donaghey v Boulton & Paul Ltd
[1967] 2 All ER 1014(Judgment by: Lord Hodson)
Between: Donaghey
And: Boulton & Paul Ltd
Judges:
Viscount Dilhorne
Lord Reid
Lord HodsonLord 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 Hodson
performing the act of fixing the ventilators within the meaning of reg 4. Likewise I agree that the respondents to this appeal were on the facts of this case "performing" the operations in the course of which the appellant was injured. In Mulready's, however, the court in construing reg 4 held that the word "perform" in reg 4 of the Building (Safety, Health and Welfare) Regulations, 1948, has a wider meaning sufficient to cover vicarious performance of the work by a sub-contractor and impose liability on a head contractor who subsequently took no part in the work.
In order to understand the argument it is necessary to set out reg 4, which provided [F4] as follows:
- "4.
- It shall be the duty of every contractor and employer of workmen who is undertaking any of the operations to which these regulations apply-
- (i)
- to comply with such of the requirements of regs. 5-30, 66(1) in so far as it relates to the protection of the hoistway, 73, 75, 77, 80-84, 89, 90(1), 91, 92, 93 and 95 as affect any workman employed by him;
- provided that the requirements of the said regulations shall be deemed not to affect any workman if and so long as his presence in any place is not in the course of performing any work on behalf of his employer or is not expressly or impliedly authorised or permitted by his employer;
- (ii)
- to comply with such of the requirements of regs. 31-33, 74(1), (2), (3), (4) and (5), 76, 78, 79, 88, 90(2), 94, 96 and 97 as relate to any work, act or operation performed or about to be performed by such contractor or employer of workmen; ... "
The difference between paras (i) and (ii) is striking. Paragraph (i) deals with regulations as affecting any workmen employed by every contractor and employer of workmen. Paragraph (ii) does not deal with workmen but demands compliance with the requirements of such of the regulations as relate to any work, act or operation performed by such contractor or employer of workmen.
There is thus an argument for the construction of the word "perform" so as to extend to cover a contractor who is not actually doing any works but had agreed with the building owners to do the work. On the other hand, manifestly inconvenience and possibility of injustice may arise, especially where there is a chain of contractors and sub-contractors, each of whom had undertaken to do the work. These considerations suggest a narrower construction of the word "perform" as being appropriately applied to the person who is physically performing the work. The employer, not the contractor, unless he is involved in the performance, must take the precautions. The wide construction of "perform" involves that every person who enters into a contract and undertakes to do any part of the work is deemed to be performing it although he sub-contracts it. This construction is not, I think, consistent with the division of duties set out in reg 4. I am of opinion on reconsideration that the only person liable under para (ii) is he who physically "performs" the operation and accordingly revise my previous opinion. On this construction of the word "perform" the well known statement on duty contained in Lord Blackburn's speech 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) has no application.
I have nothing to add on reg 31(1) which has been found by the Court of Appeal to have no application to this case.
Regulation 31(3) is in a different position. James J and the Court of Appeal treated this regulation as inapplicable because it was aimed at preventing a different sort of accident from that which befell the appellant. [His Lordship read reg 31(3), which is set out at p 1024, letter d, ante, and continued:] In support of the contention of the respondents reliance is naturally placed on the leading case of Gorris v Scott, which decided that when a statute creates a duty with the object of preventing a mischief of a particular kind, a person who, by reason of another's neglect of the statutory duty, suffers a loss of a different kind, is not entitled to maintain an action in respect of such loss. Applying the principle to this case, Willmer LJ said ([1966] 2 All ER at p 830, letter d):
"I think it is plain, however, that the mischief against which reg. 31(1) is directed is the risk of a collapse of the fragile material causing the workman to fall through it."
This of course is true, but the mischief really contemplated is the risk of a fall a distance of more than ten feet and this need not take place in precisely the way with which the wording of the regulation appears to deal.
I think that guidance is to be found in a decision of your lordships in the case of Grant v National Coal Board. This was an action for damages based on a breach of s 49 of the Coal Mines Act, 1911, which prescribed: "The roof and sides of every travelling road ... shall be made secure ... " A mineworker was injured by the derailment of a bogie in which he was riding when it struck some stone which had fallen from the roof of the travelling road. It was held that the accident was one against which the legislation was designed to protect him, notwithstanding that the accident happened in a manner not contemplated by the Act of 1911, viz, injury caused by the direct impact of material falling from the roof. Applying Gorris v Scott it was pointed out in your lordships' House that there was in that case a complete difference in kind in the mischief aimed at, namely, the prevention of the introduction and spread of contagious disease among animals, not their protection from perils of the sea, whereas in the case under consideration, although the primary danger was that of being crushed or hurt by a fall of stone, yet there are other risks of a like nature which may follow from a fall of stone which may imperil the safety of the workers. Such a risk is the risk of a derailment as happened and caused the injury. In dealing with Gorris v Scott where the object of the enactment was of a kind totally different from the safety of workpeople, my noble and learned friend, Lord Reid, pointed out that if the enactment in that case implied civil liability, it was a very different thing to say that, where the object of the enactment is to provide safety, the implication is that liability only arises if the injury occurs in a particular way. I think that, although the matter is not free from difficulty, as the judgments delivered on the subject of reg 31(1) show, yet reg 31(3) applies to this case.
Agreeing as I do that the absence of crawling boards was a cause of the accident, the only remaining question is whether on the line followed by Pearson J in Ginty v Belmont Building Supplies Ltd, the accident should be attributed solely to the fault of the appellant. I cannot accept that this authority has any relevance to this case and see no reason to disturb the finding of liability and the proportion of blame fixed by the trial judge. I would accordingly allow the appeal and restore the order of James J.