ISSUE 54 EWJ web - Journal - Page 41
l D1 was entitled to consider that C would guard
against obvious risks, which included not going into
an unauthorised area and specifically not going into
lift 6 from where he fell.
barriered off, which was made clear at the entrance
points. Access for bricklayers and all external trades
was only via an external "Haki" staircase. All the bricklayers had been told that internal access was not permitted and C must have had to remove the barriers to
gain access. There were external and internal
handrails in place and because of this there was no
need for corner plates as workers were protected by
the internal handrail. C's accident was entirely his own
fault.
l D1 had to plan work to minimise risk. It had clearly
addressed its mind to corner voids and the Judge was
not satisfied it was ignoring or allowing an obvious
danger.
l In addition D1 took reasonable steps to make sure
its site rules were being observed.
Issues
C alleged that D1 had been negligent in failing to
carry out its duties in respect of his safety. C relied on
the Occupier's Liability Act 1957, Management of
Health at Work Regulations 1999, the Work at Height
Regulations 2005 and the CDM Regulations and common law as evidence of negligence. C argued such duties included D1 making and reviewing risk
assessments and ensuring that steps and measures
needed to ensure and enforce safety on site were
applied and adhered to.
l The Judge was not satisfied that D1 was in breach
either of its common law duty or the relevant provisions of the Occupiers' Liability Act 1957.
In respect of causation, the Judge found that it was
not reasonably foreseeable that a worker would take
handrails down. The accident was caused by C's flouting the site rules and what he did was sufficient to
break the chain of causation.
It is worth noting that this is another example of one
of the parties being hindered rather than assisted by its
expert witness. In this case, C's liability expert clearly
got himself into a muddle over what the evidence actually was. His report indicated that he had seen more
than one version of C's first statement; a version which
had not been served and was not in the trial bundle,
although this was denied by the Claimant's solicitor.
This was hardly C's expert's mistake but perhaps went
to his lack of intimate knowledge of the case. Of the
two witness statements made by C included in the
bundle, neither set out matters which had been referred to by C's expert in his report. He was, in addition, unaware of the existence and effect of the
Enterprise and Regulatory Reform Act 2013 (ERRA).
The Judge unhesitatingly preferred the evidence of
D1's expert, Mr Rawden.
C's case boiled down to the following key issues:
l Whether the scaffolding area in question had been
handed over to trades or not
l How C was able to access the area
l Should D1 have carried out a new risk assessment
when the scaffolding contractor decided to use Haki
system scaffolding instead of traditional tube and fitting scaffolding; workers could adjust Haki scaffolding without the need for specialist tools
l Whether D1 owe a duty to take into account what C
actually did which led to the accident when looking at
what constituted a reasonably safe system of work
l Corner plates could and should have been provided
at no extra cost by D2 as the scaffolding contractor
Conclusions
This is a useful judgment which whilst reiterating and
re-emphasising the law with regard to the effect of
ERRA on liability in EL claims is also useful specifically
with regard to setting out the respective duties and
obligations placed not only on the employer but also
the employee or contractor.
The Judge said that D1's duty was to provide a safe
system of work including by the use of risk assessments
and implementation of precautionary steps to minimise the risks identified. It would have discharged
these obligations by taking reasonable precautions
whilst taking into account the cost of implementation;
there is a balancing act between efficacy and cost.
It is also an example of an employer/main contractor
being able to back up their safe systems with evidence
that it is adhering to its risk assessments, work plans,
site safety warnings and briefings.
Decision
The Judge, in dismissing the claim, said as follows:
l Adequate precautions were taken by D1 including
regarding unauthorised removal of handrails
Finally it is a reminder that responsibility cuts both
ways. In this case, C lacked any or any sufficient care
for his own safety. He deliberately flouted safety rules
which led to his accident which was entirely avoidable
had he not ignored his instructions.
l The scaffolding area had not been handed over and
was not available to C to use and he knew that and
gained unauthorised access via an unpermitted route
l Counsel for C had said that a corner plate would
have prevented the accident but it would not have
happened if C had been working on the correct side
of the internal handrail in the first place
Author
Elke De Mariassy
Bristol
+44 (0) 117 9182791
edemariassy@dacbeachcroft.com
www.dacbeachcroft.com
l Senior employees of D1 did walk-arounds twice a
day. The Judge said in terms that she did not consider
that D1 tolerated workers taking down handrails to
gain access: on the contrary measures were implemented to stop this happening.
EXPERT WITNESS JOURNAL
39
APRIL 2024