Loss Prevention Alerts

Alert 23:  Contractor's/Consultants Duty of Care to Employees of Others Revisited

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.

Loss Prevention Alert 21 was a summary of the case Makepeace v. Evans Brothers (Reading) (a firm). In that case, Mr Makepeace fell from a tower scaffold provided by MacAlpine, the main contractor on site. Mr Makepeace was though an employee of the painting sub-contractor, Evans Brothers of Reading. MacAlpine's site agent had told Mr Makepeace and his cousin they could borrow a tower scaffold to attend to the outside paintwork. Whether through the fact that they had not erected the stabilizers properly, or because Mr Makepeace and his cousin had upset the balance of the scaffold, or because of a combination of both, 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. Importantly though, the Court of Appeal determined that MacAlpine owed no duty of care to Mr Makepeace. The Court thought "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."

However, in the recent case McGarvey v. ENCI Limited and NG Bailey and Company Limited [2002] EWCA Civ 274 the Court of Appeal substantially restricted the scope of Makepeace, so reinforcing the point that contractors or indeed consultants may at times owe duties of care to the employees of others.

In McGarvey, D2 was the electrical sub-contractor for a warehouse construction. D2 employed D1, a specialist sub-contractor, to carry out specific work on site. The claimant, an employee of D1, was assigned the task of fixing some loose cables with clips. D2's foreman pointed the claimant in the direction of a 5 metre ladder upon which he could reach the cables. The ladder was not attached to the building at the top, nor was it footed properly at the bottom. The claimant was seriously injured when he fell from the ladder.

The trial judge found that D1 was two thirds liable for failing to have provided the claimant with any safety training. However, D2 was found to be one third liable as it was D2's foreman who had told the claimant to use the ladder. D2 appealed to the Court of Appeal against that finding.

The Court of Appeal distinguished Makepeace on essentially two grounds. Firstly, in Makepeace the sub-contractor's employee who was injured was an experienced painter. McGarvey was only 20 at the time of the accident and had been employed as a labourer for only a month. Secondly, the court noted that the scaffold tower used in Makepeace was the appropriate piece of equipment to use for the task. The problem was that the unfortunate Mr Makepeace and his cousin had either not set it up properly, or had over balanced it while they were working. However, in McGarvey the court believed that D2's foreman had suggested that McGarvey use a ladder which was too long for the task and which could not be operated safely.

The distinction between Makepeace and McGarvey is of practical relevance only for lawyers. We do not recommend that construction professionals attempt to steer a path between these cases. Essentially, those on site, when considering the activities of people not employed by their own employer, need to consider the following:

• to what extent other workers' activities can affect their own safety;
• to what extent their own activities can affect the safety of others; and
• to what extent other workers might be at risk of harming themselves or indeed others.

It is the last of these that creates the difficulties. Interference with the activities of others which have no impact upon your own safety or what might seem like the act of a busybody. But where a contractor or consultant has substantial control of a site, and especially where he is making available equipment or is directing the employees of other contractors in and about their work, it is worth assuming that a duty of care will be owed. In particular, specialists working on site should have regard to the age of the employees of other contractors and should not necessarily assume that they have received appropriate training from their own employer.

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

Date of Issue: 12 May 2003