Donaghey v Boulton & Paul Ltd
[1967] 2 All ER 1014(Judgment by: Lord Guest)
Between: Donaghey
And: Boulton & Paul Ltd
Judges:
Viscount Dilhorne
Lord Reid
Lord Hodson
Lord GuestLord 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 Guest
My Lords, the Court of Appeal have held that although the point was not taken before James J it was open to the appellants before them (now the respondents in this House) to take the point that reg 31(1) of the Building (Safety, Health and Welfare) Regulations, 1948, did not apply to the circumstances of this case. In that I think that they were right. I cannot see that any prejudice was caused to the appellant in this point being raised for the first time in the Court of Appeal. Sufficient of the circumstances of the accident had been investigated to enable a decision to be made on the applicability of the regulation.
On the substantial question whether reg 31(1) did in fact apply, again I think that the Court of Appeal were right in holding that it was not applicable. The regulation is in the following terms:
- "Regulation 31:
- "(1)
- Where work is done on the sloping surface of a roof and, taking into account the pitch, the nature of the surface, and the state of the weather, a person employed is likely to slip down or off the roof, then unless he has adequate handhold or foothold or is not liable to fall a distance of more than six feet six inches from the edge of the roof, suitable precautions shall be taken to prevent his so falling ... "
Before the obligation to comply with the regulations arises certain conditions must be present:
- (i)
- work must be done on the sloping surface of a roof,
- (ii)
- taking into account the pitch of the roof, the nature of the surface, the state of the weather, a person is likely to slip down or off the roof. Then, if these conditions are present and unless there is adequate hand hold or foothold, or the person is not liable to fall more than six feet six inches from the edge of the roof, suitable precautions must be taken to prevent "his so falling". This latter expression I construe as "falling from the edge of the roof". The Court of Appeal (55) doubted whether condition 2 was satisfied, but I am not prepared to take this point against the appellant, as I think that it was assumed at the trial that by reason of one or other of the factors mentioned the appellant was liable to slip down off the roof. There was at any rate no contrary evidence for the respondents. The question then arises, against what circumstances had the suitable precautions to be taken-and the answer must be according to the regulation "to prevent him falling from the edge of the roof". What in fact happened was that the appellant fell through a hole in the roof, which had been made by the temporary removal of some asbestos sheeting. The edge of the roof cannot in the context in my view comprise the sides of the hole in the roof. The distinction is made between the roof and the edge of the roof in reg 31(4) where both "the roof" and "the edge of the roof" are separately referred to. The precautions which have to be taken are not specified as precautions to prevent the person falling through the hole in the roof but to prevent him falling from the edge of the roof. Regulation 30 makes provision for accessible openings in roofs or floors which have to be protected.
Regulation 31(3) was summarily dismissed by James J and the Court of Appeal gave it scant consideration. Willmer LJ with whose judgment Davies and Russell LJJ agreed, took the view ([1966] 2 All ER at p 830) that the mischief against which reg 31(3) was directed was the risk of the collapse of the fragile material causing the workman to fall through and that as the accident happened, not through the appellant falling through the fragile material but through a hole in the roof where there was no asbestos sheeting, the accident was not caused by a breach by the respondents of reg 31(3). I am afraid that I cannot agree with this construction of the regulation. [His Lordship read reg 31(3), which is set out at p 1024, letter d, ante, and continued:] The operative part of reg 31(3) is that where workmen have to pass over or work above fragile materials, certain precautions have to be provided and used, such as ladders and crawling boards. The circumstances under which these precautions have to be taken are further defined in the opening words of reg 31(3) where the degree of fragility of the material is described as "materials through which a person is liable to fall a distance of more than ten feet" and the work is being done on or near roofs or ceilings covered with these materials. The stage is thus set in the opening sentence of reg 31(3) for the circumstances in which the precautions have to be taken. There is no doubt on the evidence that work was being done near roofs covered with material of the necessary fragility. There is no doubt that the appellant had to pass over these materials. In fact he was standing on an asbestos sheeting when he fell. There is no doubt that the precautions desiderated were not provided and used and that if they had been used the accident would probably not have happened. In the circumstances there was plainly a breach of reg 31(3). The causal relation between the breach and the accident has been established.
It is said that the mischief against which reg 31(3) was designed was men falling through fragile materials in roofs, and as the appellant did not fall through the fragile materials, the regulation does not apply. I cannot follow this argument. The regulation was designed for the safety of men working on the roof, and the mischief against which the regulation was designed was men falling from the roof. (See Grant v National Coal Board.) Whether the fall took place through the roof or from a hole in the roof seems to be immaterial. In my opinion undue importance has been attached by the Court of Appeal to the phrase "through which a person is liable to fall a distance of more than ten feet". It does not denote the mischief against which the regulation is designed, but merely describes the degree of fragility of the materials and the distance of a possible fall as circumstances which must exist before the regulation applies. To construe the regulation according to the respondents would mean that if the workman put his foot through the asbestos sheeting material and fell to the ground he could appeal to the regulation, but if he overbalanced off the asbestos sheeting and fell ten feet to the ground he could not recover. Such an unreasonable result cannot, I think, have been contemplated by the regulation. I cannot see any justification for the view that before the regulation can apply the accident must have happened by the man falling through the fragile materials. The precise way in which the accident happened is not material if the accident which happened was the type of accident against which the regulation was designed. (See Hughes v Lord Advocate.)
The strongest case relied on by the respondents was Gorris v Scott. The facts were that the defendant shipowner undertook to carry the plaintiff's sheep from a foreign port to England. On the voyage some of the sheep were washed overboard by a failure on the part of the defendant to take a precaution required by the Contagious Diseases (Animals) Act, 1869. It was held that the plaintiff was not entitled to recover on the ground that the object of the statute was to prevent the spread of contagious disease among animals and not to protect them against the perils of the sea. The mischief against which the Act was designed was expressed to be the introduction or spread of contagious or infectious diseases among animals in Great Britain, and the accident of being washed overboard was a different kind of mischief altogether against which the statute was not designed. In the present case the general purpose of the Building (Safety, Health and Welfare) Regulations, 1948, was to secure the safety of the men working, and the mischief against which reg 31 was designed was men falling from the roof. This was the type of accident which happened and the regulation therefore applies to the respondents.
A further question arises on the submission by the respondents that even if there was a breach of reg 31, this regulation did not apply to them, as they had sub-contracted for the work to be performed by P O'Brien & Co originally the first defendants. This involves a consideration of reg 4 (ii). [His Lordship read the relevant terms of reg 4 (ii), which are set out at p 1027, letter d, ante, and continued:] The Court of Appeal dismissed this argument, expressing themselves bound, as they were, by the decision in Mulready v J H & W Bell Ltd. The respondents invited this House to overrule Mulready v J H & W Bell Ltd. In that case the head contractor employed a sub-contractor who failed to comply with reg 31 of the Building (Safety, Health and Welfare) Regulations, 1948. The Court of Appeal held that the head contractor, even though he had no knowledge of the breach of statutory duty, remained liable in damages to a workman employed by the sub-contractor who sustained injuries as a result of the breach. The present case and Mulready really turn on a proper interpretation of reg 4 (ii), the relevant part of which has already been quoted. The argument which succeeded in Mulready's case was that if a duty was cast on the head contractor to perform the work, he cannot avoid it by sub-contracting. This assumes, however, that a duty is cast on the head contractor to perform the work. Lord Goddard CJ said ([1953] 2 All ER at p 218, letter a; [1953] 2 QB at p 125) that the head contractor had agreed with the building owner to perform the work on the roof and that it did not matter whether they chose to perform it by their own workmen or by means of a sub-contract. With respect to the members of the Court of Appeal, that is to give too wide a meaning to the word "performed". The head contractor, although he may undertake the operation with the building owner, does not perform the work if he divests himself of the control and direction of the work by employing a sub-contractor.
For these reasons I consider that the ratio of decision as expressed by the Court of Appeal was wrong. The trial judge (Pearson J), had decided the case in the plaintiff's favour on a more narrow ground, namely, that in view of the control exercised by the head contractor he could be regarded as performing the work in question. On the facts of that case I think that he was right. The question is whether the facts in the present case can justify a similar conclusion. The difficulty is that this aspect of the matter was really never considered in the courts below as they were bound by Mulready and the evidence is very meagre. However, there was certain evidence by Mr Gregory, the respondents' foreman erector. G Taylor Brandon were the main contractors and the respondents were the main roof contractors. They had sub-contracted some of the roof work to P O'Brien & Co (formerly first defendants) the appellant's employers. All the materials and safety equipment were purchased by the respondents who supplied the labour, some of which was sub-contracted to P O'Brien & Co and some to another firm. Mr Gregory nevertheless was the senior man on the spot responsible to the respondents for supervising the work on the roof. In these circumstances it can fairly be said that the respondents had not divested themselves of the control and direction of the roof work and that they were "performing" the work in the terms of reg 4 (ii). It follows that, in my view, the respondents are liable in damages for breach of statutory duty to the appellant.
On the question whether the case of Ginty v Belmont Building Supplies, Ltd affords any protection to the respondents, I agree with the rest of your lordships in thinking that the case has no application to the facts of this case.
I would allow the appeal and restore the judgment of James J.