Ann Wright rounds up the rulings that affect you

Don’t add insult to injury

In 1999 Mitie won the job of repairing the Parcel Force workshop roof in Birmingham. It was a smallish job, valued at around £1160, but the final price tag proved calamitous.

During tendering Mitie had assured the Post Office that it could do the job competently – and safely. The Post Office issued its works order, describing the roof as metal deck sheet, but referred Mitie to the site logbook for specific information, including hazard details.

The work consisted of applying flashband and bitumen out of a 25kg drum to the leaking skylights. It was to be a two-man operation. The working method was to use ladder access and two cat ladders during Parcel Force working hours. But Mitie’s Mr Tracey and Mr Hood then decided to work when the workshop was closed, using only a single cat ladder and to walk on the roof along the purlin lines. They used neither guardrails or harnesses.

Hood overbalanced and fell through a plastic skylight onto a concrete floor 35 feet below. He was severely injured and recovered £1.65m in damages plus £130,000 costs from Mitie.

Both Mitie and the Post Office were prosecuted under the Health & Safety at Work Act 1974. Mitie was also prosecuted for breach of regulations 4(1) and 7(1) of the 1996 Construction Regulations.

But Mitie wanted a contribution for Hood’s damages from the Post Office under the Civil Liability (Contribution) Act 1978, as it had failed adequately to describe state of the roof. It wasn’t even metal deck, but some form of fibre or cement sheeting.

But the judge held that the Post Office was not liable as it had taken steps to ensure that Mitie was competent before it had placed the order and the Post Office had not controlled Mitie’s method of working. And besides, the state of the roof wasn’t relevant as Hood had fallen through a window.

Moral: Those in glass houses shouldn’t blame the roof

Case: Mitie Property Services (Midlands) Limited - v - Royal Mail Group Plc. QBD – July 1, 2005. [Bliss IB 31/11]

Girls’ school gets an F for detail

In 2003, Briggs and Forrester Electrical (B&F) carried out extensive electrical works at Southfield Girls’ School in Kettering which resulted in the girls evacuating the building in an asbestos scare.

Asbestos tiles had to be removed to gain access, so B&F employed a specialist and architects to oversee the works. The specialist carried out its work badly.

The school sent B&F, the architect, and the specialist detailed letters of claim for about £5m from asbestos contamination, all in accordance with the Construction and Engineering Pre-Action Protocol.

B&F responded in detail, admitting at least some liability. But B&F also complained that it was difficult to make an offer as the school has failed to take account of asbestos contamination existing before its incompetent specialist started work. B&F wanted the school to quantify exactly how much damage was its fault.

But the school denied it had been contaminated before B&F’s work and asked B&F to prove it. In response B&F asked the school to disclose myriad documents and reports including details of the quantum of its claims.

The school refused and B&F sought a court order to force it to comply. The judge held that although B&F accepted there was a potentially large claim, B&F was attempting to resolve before litigation and that B&F had taken a proactive stance throughout the pre-action stage.

The school had already disclosed or offered a lot of quantum documents, and there would be extensive costs to provide the additional documents and reports to give B&F what it wanted. But the court exercised its discretion in B&F’s favour for the quantum documents, holding that in the months since it first made the claim, the school should have produced a schedule identifying the full quantum under each head, demonstrating how each headline figure had been made up.

Moral: When making a claim, make it detailed

Case: Galliford (UK) Northern T/A Galliford Northern - v - Markel Capital Ltd. QBD May 2003

Dumper damage means bumper damages

Mr O’Gara had 30 years experience as a dumper driver. In June 1999 he was employed by Paul Johnson Construction (PJC) to transport topsoil 200 to 300 yards from the back garden of a building plot.

The journey included travelling down a 10 foot wide ramp leading from a forecourt.

Neither the sides of the ramp or the forecourt contained any method to prevent the dumper from falling if it was manoeuvred incorrectly.

On one journey O’Gara was reversing his dumper on the forecourt and its front nearside wheel slipped over the edge. It fell into a depression at the top of the ramp and toppled over onto his left wrist and hand. He was seriously injured and damages were assessed at £185,000.

PJC wanted to reduce the damages by O’Gara’s share of responsibility for the accident. It argued that O’Gara had, in selecting the wrong place to turn, failed to check his wheels and had driven into a hole he should have seen.

In response, O’Gara’s expert pointed out that PJC had not made any risk assessment or complied with HSE requirements that the ground beside the ramp be levelled off or to use timber baulks to prevent the wheels overshooting the edge. The judge agreed. O’Gara had been correctly looking in the direction the dumper was travelling as he reversed. He had no liability and would be paid the full damages.

Moral: A risk assessment in time saves £185,000

Case: O’Gara - v - Paul Johnson Construction (Leicester) Ltd.

Source

Construction Manager

Postscript

Ann Wright, LLB, is an adjudicator and quantity surveyor. Tel 01675 466009