Loss Prevention Alerts

Loss Prevention Alert 21 - Contractor’s Duty of Care to Employees of Sub-Contractors

In this Loss Prevention Alert we summarise a case which has been said to narrow the ambit of "the nursemaid school of negligence". While it is to be welcomed, it is very important that AGS members understand the broad principles and their limitations.

The case, Makepeace v. Evans Brothers (Reading) (a firm) and Anor, 23 May 2000 concerned a particularly unpleasant head injury to a Mr David Makepeace. Mr Makepeace was a painter and decorator employed by Evans Brothers of Reading. They, in turn, were sub-contractors to the main contractor, Alfred MacAlpine Construction Limited.

Mr Makepeace fell from a tower scaffold provided by MacAlpine. MacAlpine's site agent told Mr Makepeace and his cousin that they could borrow the scaffold to attend to the outside paintwork. Either because the tower scaffold had been erected without its stabilisers in place or because Mr Makepeace or his cousin had upset the balance of the scaffold, or because of a combination of both of those factors, the tower scaffold toppled over casting Mr Makepeace to the ground as a result of which he sustained a head injury which has left him permanently disabled.

Evans Brothers, Mr Makepeace's employer, was found liable in negligence and for breach of the Construction (Working Places) Regulations 1966. The claim against MacAlpine was dismissed. It is against this last finding that an appeal was mounted. The court did not doubt that in certain circumstances a main contractor or occupier will owe a duty of care to the employees of contractors who come upon the premises which is distinct from the duty which exists in relation to the state of the premises themselves. Further, it was not doubted that in certain cases there may be concurrent liability on the part of the individual's employer and the main site contractor. However, on the facts of this case, the court did not think it reasonable to impose a duty of care. One of the Court of Appeal Judges, Mantell LJ, quoted with approval a speech in an earlier case:

"It would not ordinarily be reasonable to expect an occupier of premises having engaged a contractor whom he has reasonable grounds for regarding as competent, to supervise the contractor's activities in order to ensure that he was discharging his duty to his employees to observe a safe system of work. In special circumstances, on the other hand, where the occupier knows or has reason to suspect that the contractor is using an unsafe system of work, it might well be reasonable for the occupier to take steps to see that the system was made safe."

Mantle LJ regarded it as crucial that the trial judge had found that the sub-contractors were of good repute and the claimant was an experienced worker.

Mr Justice Holman, while also dismissing the appeal, regarded this as being a difficult and borderline case. He thought much depended on the piece of equipment in question. There is a spectrum between the ordinary and commonplace (although inherently dangerous) and the unusual or rare. He also thought the trade of the employee in question of the sub-contractor was also a relevant consideration. Mr Justice Holman therefore thought that in these cases it was not reasonable to expect MacAlpine to have enquired of Mr Makepeace whether he knew how to use the tower scaffold and appreciated the danger which might arise from its incorrect use.

AGS members should take some comfort from this decision, but no-one should allow their guard to fall. Where a main contractor, or for that matter a supervising engineer, can see that an employee of a sub-contractor is doing something inherently dangerous than that person may well owe a duty of care to warn that employee or, in certain circumstances, to notify his employer so that his employer can stop him acting in that way. While of course AGS members will be concerned on occasions about the ramifications of such action, and in particular whether it might lead to complaints by their employer, it is important to err on the side of safety.

This loss prevention alert has been produced by the Loss Prevention Working Group (LPWG) of the AGS. It highlights issues that the LPWG considers may be of relevance to members. It is not intended to provide a definitive response to any issues and before taking action members should consider carefully whether they need to seek independent legal advice.

Prepared for the Members of the AGS by Steven Francis, DLA

Date of Issue: 13 May 2002