The defendant contractor secured a contract to decorate the exterior of a building. The claimant was a painter and decorator in partnership with his father and they were instructed by the defendant to carry out the work. The work required the use of scaffolding, but no ladder was provided by the defendant to reach from ground level to first stage in order to prevent unauthorised access to the scaffolding when the contractors were not on site.
On the date in question, the claimant used his own ladder to reach the first stage but he did not secure the foot of the ladder or have a second person placed at the foot of the ladder to prevent it slipping. The claimant fell from the ladder when it slipped and was seriously injured.
The claimant brought proceedings against the defendant contractor alleging that his injuries were caused by the contractor’s breach of Regulation 4 of the Construction (Health, Safety and Welfare) Regulations 1996. To succeed in his claim the claimant had to show that he was either an employee of the defendant or that the defendant controlled the work and as a result the defendant had a statutory duty to provide a safe means of climbing the scaffolding. As this involved a ladder the duty was either to provide a fixed ladder or ensure the ladder was secured by a second person at the foot.
Reference
In deciding whether the relationship between the claimant and defendant was one of employer/employee the court looked at the facts of the case and measured them against the three tests used by the courts; (a) the organisational test, (b) the economic reality test and (c) the multiple test. These tests looked at the method of payment, the organisation of work, the provisions of tools and materials and the fact that the claimant was in partnership with his father. All the facts indicated that the claimant was self-employed.
The court then addressed the issue of whether the defendant was a person who controlled the way in which the work was carried out. The defendant was the main contractor and provided the workforce by subcontracting to the claimant and he provided the scaffolding by instructing scaffolders to erect it. However, the defendant was not in control of the painting and decorating work the claimant was carrying out and the claim was dismissed. The judge stated, “the claimant had complete control over the way in which the job was carried out. He organised the work. The defendant only attended the site about once a week and had no men of his own on the site.”
*Full case details
Queens Bench Division, Bristol District Registry, Judgment of Judge Rutherford.
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Postscript
The issue of liability under these regulations centres on the question of control. In an employer/employee relationship the requisite control is likely to be found and liability will be imposed on the employer. In a relationship of main contractor/subcontractor the regulations impose a duty upon the person who controls the way any construction work is carried out.
It is clear from this judgment that it is possible to have a situation in a relationship of main contractor/subcontractor where there is sufficient control to impose a duty on the main contractor under the regulations. The question will depend on the facts in each case. Indeed, it is possible for two parties to be in control of the work. In this case, the duty under the regulations was on the claimant. Had the contractor been found to also be in control of the works, the two parties would have had an equal duty and liability would have been split equally between the parties as a starting point, with any contributory negligence to be also taken into account.
