Donaghey v Boulton & Paul Ltd
[1967] 2 All ER 1014(Judgment by: Viscount Dilhorne)
Between: Donaghey
And: Boulton & Paul Ltd
Judges:
Viscount DilhorneLord 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
Judgment by:
Viscount Dilhorne
My Lords, on 3 February 1962, the appellant, who was in the employ of a firm called P O'Brien & Co fell from the roof of an aircraft hangar then in course of construction and as a result suffered serious injuries. P O'Brien & Co were employed by the respondents, who were themselves sub-contractors of another company, to do work on the roof of the hangar, and one of the tasks on which they were engaged was covering the roof with asbestos sheeting.
At the time of the accident the appellant was engaged with a man called Mr Crean in removing some of the asbestos sheets which had been damaged as a result of gales and in replacing them with others. The roof of the hangar was so constructed that the ridge of the sloping roof did not go along the length of the hangar but with the ridges running across the hangar. The apex of each ridge was sixty-two feet from the ground. Except at the ends of the hangar the slope of the roof was only twenty-two degrees. The slope from the ridge of the roof finished at a gutter, fifty feet from the ground, and from that gutter the roof sloped upwards to the next ridge. At the time of the accident the appellant and Mr Crean were working on a part of the roof where the slope was twenty-two degrees.
They had removed the damaged sheets andrelaid the lowest tier next to the gutter when P O'Brien's foreman noticed that one of the relaid sheets was out of place. He thereupon told the appellant and Mr Crean to put it right. To do so Mr Crean stood on the asbestos roof covering to one side of the sheet that had to be moved. The appellant stood on the other side of that sheet with one foot on an angle iron purlin which formed part of the roof structure uncovered as a result of their removal of the sheets, and with his other foot on the asbestos sheeting. Behind him was an open space created by their removal of the asbestos sheets. They had some difficulty in moving the sheet which was out of place and, when it came free, the appellant lost his balance and fell through the open space in the roof to the ground.
He brought an action against his employers and against the respondents alleging negligence and breach of statutory duty, alleging failure to comply with the Building (Safety, Health and Welfare) Regulations, 1948. [F3] P O'Brien & Co entered an appearance, filed a defence but did not appear at the trial. It was said that they were without funds and not insured against claims such as that brought by the appellant. The action was tried by James J at Bedford Assizes in February, 1966. He held that P O'Brien & Co were guilty of negligence and of breach of statutory duty and that no case of negligence was established against the respondents but that they, too, were guilty of a breach of statutory duty. He assessed the damages at £18,497 8s 2d and, holding that the appellant was one-quarter to blame, and the respondent and P O'Brien & Co three-quarters to blame, he gave judgment against them for £13,873 1s 2d.
From that judgment the respondents appealed to the Court of Appeal. If P O'Brien & Co are without funds and were not insured, the appellant will only recover compensation for the serious injuries which he received if he succeeds in this appeal. It is perhaps a matter which should receive consideration by the legislature whether employers who employ men to do work of the character of that on which the appellant was engaged should not be required to insure against claims of the nature brought by the appellant, for in the absence of insurance an injured workman may not get the compensation to which he is entitled.
The appellant in his statement of claim alleged breach of a number of regulations but in this appeal it is necessary to refer in detail only to reg 31. That is headed "Roof Work". It contains a number of paragraphs. Regulation 31(1), which James J held had not been complied with, reads as follows:
"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 hand-hold 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."
The appellant also alleged a breach of reg 31(3). [His Lordship read the materials words of reg 31(3) which are set out at p 1024, letter d, post, and continued:] James J in his judgment said that he did not think that reg 31(3) had "got anything to do with this accident and in so far as it is relied on the [appellant] fails in respect of that". He did not find that there had been a breach of any of the other regulations. Relying on Mulready v J H & W Bell Ltd, James J held that the respondents did not discharge themselves from the duty of complying with reg 31(1) by employing P O'Brien & Co and that the respondents' breach of duty was not coincidental with the appellant's breach of duty, so that the appellant was not debarred by the decision in Ginty v Belmont Building Supplies Ltd from recovering damages.
The respondents appealed to the Court of Appeal and there sought to contend that reg 31(1) did not apply. This had not been argued before James J though the contention had not been expressly abandoned. The Court of Appeal allowed this contention to be put forward, and it is now submitted that they were wrong to do so.
Although in some cases the application of reg 31(1) may depend on evidence as to the nature of the surface, the state of the weather and the absence of adequate hand-holds or footholds, in other cases it will be clear without any such evidence that the regulation does not apply.
In my opinion, this case is within the latter category. If it came within the former, then the Court of Appeal would have been wrong to allow this contention to be put forward. There is no dispute about how the appellant came to fall from the roof. He did not slip on the roof and fall down it. The pitch of the roof was very slight. Even if he had slipped on the roof and fallen down it, he would have fallen into the gutter at the bottom and would not have fallen to the ground. Regulation 31(1) is, in my opinion, directed to ensure that proper precautions are taken to prevent a person worling on a sloping roof who is likely to slip down or off the roof from falling from the edge of the roof where that edge is more than six feet six inches from the ground. It was contended on behalf of the appellant that in this regulation the edge of the roof did not mean the bottom edge and that it sufficed if the appellant had fallen from any edge of the roof, and so it was sufficient if he fell from the edge of the open space through which he went and that was more than that distance from the ground. I am not able to agree with this contention. It seems to me quite contrary to the intent and meaning of the regulation. On this roof, with its very slight slope terminating in the gutter in the valley between two of th sloping roofs. there was, in my opinion, no duty to comply with reg 31(1). No precautions required to be taken to prevent a man from slipping down and falling to the ground from the bottom edge of the roof, for that terminated in the gutter.
The Court of Appeal ([1966] 2 All ER at p 830, letter c) reached the same conclusion, but they appear to have based their decision at least partly on the fact that no evidence was given at the trial that the roof was slippery or as to the state of the weather, etc. I do not agree that the regulation does not apply for these reasons. In view of the fact that the application of reg 31(1) was not contested at the trial, it is not surprising that no evidence was called on these matters.
The appellant contended before the Court of Appeal that James J had misdirected himself in law in relation to reg 31(3) and should have held that the respondents were in breach of this regulation. As to this Willmer LJ said ([1966] 2 All ER at p 830, letter c):
"The judge dismissed this contention in a very summary manner, holding that reg. 31(3) had not anything to do with this accident. In my judgment the learned judge was plainly right, and I hope that I may be forgiven if I too deal with this point very shortly. I do not doubt that absestos is a fragile material, and it is perfectly true that the [appellant's] work necessitated his passing over it and working above it. It 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. There is no evidence in the present case of any collapse of the asbestos sheeting, nor did the plaintiff fall through it. He fell through a hold where there was in fact no absestos sheeting."
Two questions have to be considered in relation to this regulation. First, should it have been complied with and, secondly, if it should have been and was not, was breach of it the cause of the appellant's fall?
In my opinion, the regulation did apply. Work was being done on a roof covered with fragile materials through which a person was liable to fall more than ten feet, and the appellant and Mr Crean were working above such fragile materials.
Willmer LJ held ([1966] 2 All ER at p 830, letter d) that the mischief at which reg 31(3) was directed was the risk of the collapse of the fragile material causing the workman to fall through it. As the appellant had not fallen through it but through an open space, Willmer LJ held that the regulation did not apply. If, when he lost his balance, the appellant had fallen on and through the asbestos sheeting, then, if I understand Willimer LJ's judgment correctly, he would have held that the regulation applied.
This is, I think, taking too narrow a view of the regulation. It is intended to provide for the safety of workmen working on or above fragile roofs and the risk to which it is directed is the risk of falling from such roofs. Regulation 31(1) is directed to the risk of a man slipping down a sloping roof and falling off its edge. In my opinion, reg 31(3) should have been complied with. It was not. If it had been and a crawling board had been used by the appellant, it may be that he would not have lost his balance, or, if he did, as he himself said, that he would not have fallen through the hole.
In Gorris v Scott, the mischief at which the regulation was directed was the spreading of disease, not the prevention of the sheep being swept overboard. That is a very different case from this. Here, as a result of the breach of reg 31(3), the appellant sustained injuries as a result of the kind of accident, namely, a fall from the roof, at which that regulation is directed, and, in my view, it matters not that when he fell he did not happen to fall on and through the fragile material.
I now turn to the question: on whom lay the duty of complying with reg 31(3); did it rest on the respondents? The answer to this question depends on reg 4 of the Building (Safety, Health and Welfare) Regulations, 1948. [His Lordship read the material terms of reg 4, which are set out at p 1027, letters c and d, post, and continued:] The duty to comply with reg 31 thus falls on every contractor and employer who undertakes any of the operations to which this regulation applies in relation to any work, act or operation performed or about to be performed by such contractor or employer. "Undertaking any of the operations" may mean performing them or may mean undertaking by a contract to carry them out. In my view, it matters not, in this case, which is the correct interpretation. If any contractor or employer comes within the amibit of this regulation by contracting and in that sense undertaking certain operations, he is only under a duty under (i) to comply with such of the requirements of the regulations there mentioned as affect any workmen employed by him, and under a duty under (ii) to comply with such of the requirements of the regulations there mentioned as relate to work performed or about to be performed by him. The answer to the question, were the respondents under a duty to comply with reg 31(3), thus depends on whether the work on the fragile roof on which the appellant was engaged was performed by them.
Now, the head contractors had contracted with the respondents for the execution of certain works. If control over the execution of such work rested with the respondents and not with the head contractors, then it could not be said that the work was performed by the head contractors. Similarly, if the respondents had contracted with P O'Brien & Co that they should put the sheeting on the roof and control over the execution of that work rested solely with them, the respondents would not, in my opinion, by virtue of reg 4 be under any duty to comply with reg 31(3).
In this case the evidence given by a Mr Gregory, a foreman erector in the employment of the respondents and called by them as a witness, leads me to the conclusion that the respondents by their contract with P O'Brien & Co had not divested themselves of control over the roofing of the hangar. The respondents provided all the materials for the roofing. Mr Gregory said that most of the roofing was done by O'Brien & Co; that "some was done by Walker and his men" (that was "another gang"), and that some was done "by another gang also from King's Lynn. They did belong to Boulton Paul's". Mr Gregory also in examination-in-chief was asked the following questions:
- "Q.
- Of all the men engaged on that roof work on the hangar, for O'Brien's, for Walker's and for [the respondents], who was the man on the site who was the senior, top, foreman of all of them to keep an eye on what was going on?
- "A.
- We did have one supervisor on site but he left previous to the accident.
- "Q.
- Apart from that?
- "A.
- I was."
Later in the examination-in-chief he was asked if he knew exactly what O'Brien's men were doing at the time of the accident and he said that he did; and he was asked:
- "Q.
- Had you told them to do it or had you left it to them?
- "A.
- No I, left it to his own judgment because he was a qualified man to do the job as regards sheeting."
Mr Gregory was there referring to O'Brien's foreman. This answer shows that he regarded it as part of his job to see to the sheeting and that he left it to O'Brien's foreman, not because it was their job with which he was not concerned, but because O'Brien's foreman was a qualified man whom he could trust. Although the actual labour on the roof may have been provided by a number of gangs, of which P O'Brien & Co's may have been one, with the materials provided by the respondents, this last answer satisfies me that the respondents had not by their contract with P O'Brien & Co divested themselves of control over the execution of the work and that consequently the work was being performed by them within the meaning of reg 4.
James J and the Court of Appeal did not consider this question, as they were bound by the decision in Mulready v J H & W Bell Ltd. In this House it was open to the respondents to contend, and they did contend, that that case was wrongly decided. In that case the plaintiff claimed damages for injuries which he sustained as a result of falling from the roof of a high building. The defendants J H & W Bell had undertaken to supply and fix metal sheeting and to install three ventilators on the roof. They had agreed with two brothers, named Keating, that they should supply the plant, materials and tackle and that the Keating brothers should carry out the work of fixing the roof sheeting and ventilators in position. The plaintiff was employed by the Keating brothers. Pearson J held ([1952] 2 All ER 663 at p 665) that the sub-contract between the defendants and the Keatings was of a very partial and minor character and that the defendants remained in effective charge and control of the work. On that ground he held ([1952] 2 All ER 663 at p 665) that the duty was imposed on them by reg 4 of the Building (Safety, Health & Welfare) Regulations, 1948, to comply with reg 31 and, as they had not done so, he gave judgment for the plaintiff.
The defendants appealed and the Court of Appeal dismissed the appeal. Lord Goddard CJ in the course of delivering the judgment of the court said ([1953] 2 All ER at p 218, letter a; [1953] 2 QB at p 125) that while Pearson J's judgment could be supported on the grounds stated by him, the court were prepared
"... to decide the case on the ground that J. H. & W. Bell, Ltd. were the contractors who had agreed with the building owners to do the work, to perform the work on the roof and fix the ventilators. Accordingly, we do not see how it makes any difference whether they chose to perform it by their own workmen or by means of a sub-contract. We cannot doubt that they had undertaken to perform the work ... "
It cannot be doubted that J H & W Bell and undertaken with the building owners operations to which reg 31 applied. They clearly came within the opening words of reg 4. Unless the terms of their contract with the building owners prohibited them from doing so, they could have entered into a sub-contract for the complete execution of the work which they had undertaken to do and thereby deprived themselves of effective charge and control of the work, retaining the right to sue for breach of contract if the sub-contractors failed to fulfil their obligations. If they had entered into such a contract, it could not, in my opinion, be said that the work was "performed or about to be performed" by them. Regulation 4 (ii) only applies when the work is performed or about to be performed by a contractor or employer. Until then no duty to comply with reg 31 arises.
The Court of Appeal relied on the observations of Lord Blackburn in Public Works Comrs v Angus & Co Dalton v Angus & Co ([1881-85] All ER 1 at p 26; (1881), 6 App Cas 740 at p 829), where he said:
"... 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. He may bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself of liability to those injured by the failure to perform it ... "
In that case the owner of land was under a duty not to deprive his neighbour's land of support. He could not by contract divest himself of that duty. In Mulready's case the question was whether the defendants ever came under a duty to comply with reg 31 and they did not come under that duty unless the work was "performed or about to be performed" by them.
In my view, Mulready's case was rightly decided by Pearson J, and I do not agree with the additional grounds on which the Court of Appeal affirmed his decision.
Counsel for the respondents also relied on the decision in Ginty v Belmont Building Supplies Ltd. In that case Pearson J held ([1959] 1 All ER at p 428) that there was a fault by the employers because through their employee crawling boards were not used, but that fault of the employer consisted of and was co-incident with that of the plaintiff and in substance the accident was due to the fault of the plaintiff in breach of, and in definance of, his instructions and of regulations which were well known to him. Pearson J gave judgment, therefore, for the defendants. I think that James J and the Court of Appeal were right in holding that this decision did not apply to the facts of this case.
In my opinion, for the reasons which I have stated, this appeal should be allowed and the judgment of James J restored.