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Safety plan is no statement of the obvious

Construction work should not go ahead if there is no safety plan but labourers still have a duty to heed the simplest procedures, writes James Bell

PERSONAL injury claims in the industry frequently arrive at a familiar question - which person or organisation is responsible for site safety? The fact is, both the owner/occupier of the property and the contractor can be held liable.

This question was considered in some depth in the case of Ronald McCook v Aloysius Lobo and others, heard in the Court of Appeal last November.

The claimant, Mr McCook, was a general labourer working for a building contractor, Stanley Headley, on the refurbishment of commercial premises owned by the first defendant, Mr Lobo.

The property was to be refurbished for the use of the second defendant, London Seafood.

On March 17, 1998, Mr McCook was trying to fix a waste pipe to a bracket 4 m above ground.

In order to do the work, he mounted a ladder supplied by Stanley Headley, Mr McCook's employer and the third defendant in this case. Neither the owner nor Mr Headley were on site at the time.

The ladder was not secured at the top or the bottom and, when Mr McCook reached the top, the base moved away suddenly and he fell, breaking three vertebrae in his lower back, causing him serious and permanent injury.

Mr McCook began proceedings against the three defendants and succeeded in his claim for breach of statutory duty and common law negligence against his employer. The case against Mr Headley relied on Regulations 5 and 6 of the Construction (Health, Safety and Welfare) Regulations 1996, which require that the workplace be kept safe and, in particular, that guard rails, toe boards, barriers or other means of protection are installed to prevent any person falling.

Mr Lobo had visited the site from time to time and had issued instructions to Mr Headley on various occasions. When the case first came to court, it was found that there was nothing that could have led Mr Lobo to believe that the contractor was endangering his employees, as was alleged. Mr Lobo was entitled to believe that Mr Headley was a careful and competent building contractor.

In the lower court, the claimant argued that Mr Lobo was liable under Regulation 4(2) of the Construction (Health Safety & Welfare) Regulations 1996 and Regulation 10 of the Construction (Design and Management) Regulations 1994.

The 1996 regulations provide that 'it shall be the duty of every person. . . who controls the way in which any construction work is carried out by a person at work to comply with the provisions of these regulations in so far as they relate to matters which are in his control'.

Regulation 10 of the 1994 regulations state that '. . . every client shall ensure, so far as reasonably practical, that the construction phase of any project does not start unless a health and safety plan complying with Regulation 15(4) has been prepared in respect of that project'.

In this case it was accepted that no safety plan had been prepared under Regulation 15(4) and counsel for Mr McCook argued in the Appeal Court that the absence of a safety plan had caused his injury.

Mr McCook's lawyers said that, under Regulation 4(2) of the 1994 Regulations, that the owner should be made liable for their clients injury, because he controlled the premises. Mr Lobo conceded that there was no safety plan but his lawyers argued that this failure had not been a cause of Mr McCook's injuries.

The Court of Appeal agreed no safety plan could have envisaged the failure of the claimant to look after his own safety or the failure of the contractor to instruct the claimant properly in how to undertake ladder work safely.

Nothing in Regulation 10 required the owners to have prepared a safety plan so detailed as to have dealt with such obvious dangers.

The Appeal Court also referred to the case of Kealy v Heard (1983), in which the defendant, Mr Heard, was converting properties into flats and, rather than employ a firm of building contractors, had employed all the workers directly.

One of the workmen, Mr Kealy, fell from a plank placed on scaffolding by an unidentified person and was injured. He brought an action against Mr Heard, who attempted to deny liability on the grounds he had not supervised the scaffolding and had employed a responsible team of scaffolders to erect it. He also alleged that the statutory regulations relating to contractors did not apply to him.

The court agreed that Mr Heard could not count as an independent contractor under the statutory regulations but he was liable to the claimant for failing to supervise the scaffolding. Mr Kealy was therefore able to recover damages from Mr Heard as the owner of the property.

In the McCook case, Mr Lobo was able to establish that he had employed a competent contractor and had properly supervised that contractor to an extent that persuaded the court there was nothing which could have notified Mr Lobo that Mr Headley was not a safe employer.

Mr McCook succeeded in his claim against his employer but, sadly, this was a worthless exercise: Mr Headley was uninsured and did not have the means to pay any damages.

Summing-up If the owner of premises individually contracts with employees there is a greater duty on him to supervise the site than if he employed an independent contractor.

The owner of the premises is normally protected if he employs a competent contractor and he supervises the work effectively. If he ignores obvious safety breaches then he will be liable.

The Construction (Design & Management) Regulations 1994 require the owner/controller of the property not to authorise work unless a Health & Safety Plan has been prepared. In the McCook case it was found that the safety plan could never have foreseen the possibility that a labourer didn't know how to secure his ladder.

There will be cases in which the owner or controller of the site will be aware of dangers of which the contractor is not aware. In that situation the courts would be more likely to impose civil liability upon the owner/controller.