Case No: QBENF 1999/0425/A2

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM SIR CHARLES McCULLOUGH
Sitting as a judge of the Queens Bench Division.
Royal Courts of Justice
Strand, London, WC2A 2LL
Tuesday 23 MAY 2000

B e f o r e :

LORD JUSTICE NOURSE
LORD JUSTICE MANTELL
and 
MR JUSTICE HOLMAN
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	MAKEPEACE	Claimant/
Appellant.	
	- and -		
	EVANS BROTHERS (READING)(A FIRM) & Another.	First defendant/
Respondent.	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040,  Fax No:  0171 831 8838
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Mr D Foskett QC & Mr D Evans (instructed by  Messrs Field Seymour Parkes for the Claimant)
Mr D O’Brien QC & Mr S Archer (instructed by  Messrs Kennedys for the Defendant)
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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Mantell:

1.	On 22nd August 1990 David Paul Makepeace suffered a most unfortunate accident.  He was helping to touch up the paint work to the soffit and fascia of a boat showroom which was part of a major residential development at Hampton Wick on the River Thames.  He was working from a tower scaffold.  Either because the tower scaffold had been erected without its stabilisers in place or because Mr Makepeace or his cousin, who was similarly engaged, had upset the balance of the scaffold, or because of a combination 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.  His cousin escaped lightly.  

2.	At the time Mr Makepeace, together with his cousin and an uncle, were working for Evans Bros. of Reading which was one of at least two firms of painters and decorators engaged by the main site contractor, Alfred McAlpine Construction Ltd.  

3.	McAlpines had provided the tower scaffold.  It was one of many similar structures on site.  On the day in question another firm of painters and decorators, Albany, had been using the scaffold to paint high level steel work inside the showroom.  McAlpines’ site agent, Mr Hughes, told Mr Makepeace and his cousin that they could borrow the scaffold to attend to the outside paint work.  It is not clear whether anyone from Evans Bros. was within earshot at the time.  What is clear is that no one asked Mr Makepeace or his cousin if they knew how the scaffold should be erected and used.  In fact, at age 29, Mr Makepeace had been a painter and decorator since leaving school and from time to time had come across and used tower scaffolds though not in the recent past.  

4.	Now a tower scaffold is a commonplace piece of equipment in general use by builders, painters and others who need to work at height from something less restrictive than a ladder over which it has the twin advantages of being free standing and offering a working platform.  Usually a tower scaffold is rectangular in plan with legs which can be independently adjusted for height and a similarly adjustable working platform - in this case to a maximum of approximately fifteen feet.  The working platform will vary in its dimensions; here the shorter side was 1.3 metres.  The legs stand on castors or wheels which are capable of being locked  when the scaffold is in use.  Additionally, at each corner there are hinged stabilisers or outriggers which also should be locked in position before the scaffold is mounted.  It is important that anyone working from such a scaffold should keep his weight within the confines of the platform - otherwise instability may occur.  It is especially important not to use the platform as the base for a ladder the use of which could easily displace the tower’s centre of gravity.  All these precautions may seem obvious, particularly to an experienced workman, but, nevertheless, are not always observed as is evidenced by the frequency of the kind of accident which befell Mr Makepeace.  

5.	Mr Makepeace sued his employers and McAlpines.  Against the former he alleged negligence and breach of statutory duty.  Against McAlpines he alleged breaches of the Occupiers Liability Act 1957 and common law negligence.  The action was heard in October 1998 by Sir Charles McCullough sitting as a judge of the Queens Bench Division.  He found the employers liable  in negligence and for breaches of the Construction (Working Places) Regulations 1966.  Agreed damages of £672,500.00 were reduced by 25% to take account of the claimant’s negligence.  The claim against McAlpines was dismissed.  It is this last finding which is appealed, there being some doubt over the ability of Evans Bros. to meet the judgment.

6.	No complaint is made about the judge’s findings of fact which I have attempted to summarise above.  Indeed Mr Foskett QC for the appellant pays tribute to his “meticulous examination” of the evidence.  What is attacked, however, is the judge’s application of the law to the facts as found.  More particularly it is said that the judge failed to appreciate that the thrust of the claimant’s case lay in common law negligence rather than under the Occupiers Liability Act and that he also failed to give proper weight to his finding that it was McAlpines’ site agent, Mr Hughes, who had encouraged the claimant and his cousin to use the scaffold by which action, it was submitted, Mr Hughes had assumed a duty to enquire about the claimant’s and/or the cousin’s competence to erect and use the equipment, which duty existed whether or not there is in general an obligation on a main contractor to check the credentials of each and every employee brought on site by a sub-contractor.  Mr Foskett accepts that, if he cannot succeed on the first formulation of the duty, his case on the second is quite hopeless.  

7.	The question whether the common law duty of care is subsumed in the common duty of care created by the Occupiers Liability Act or survives as an independent basis of claim in respect of activities carried out on premises is of no practical importance save possibly as a pleading point.  Certainly it is unnecessary to attempt to resolve the question in the present appeal.  Clearly the Judge understood how the case was put.  Although he later referred to the “common duty of care” - an expression lifted from the Act - he had previously described the claim as “based on the Occupiers Liability Act 1957 and common law”.  He then summarised Mr Foskett’s submission:

"He submits that anyone who requires, invites, permits or encourages workmen to erect, move or use a tower scaffold is under a duty to take steps to prohibit use by anyone who has not been instructed and trained in how to do these things correctly."

Earlier still in the judgment he had specifically mentioned that it was McAlpines’ site agent who had told the claimant and his cousin that they could use the scaffold tower from the boat showroom.  Given these passages I find it quite impossible to hold that this most experienced judge had not fully understood how the case was being presented.  

8.	Even so, it is submitted that the judge’s conclusion was wrong.  That conclusion is to be found at p.44 of the transcript of the judgment where having distinguished a number of authorities relied upon by Mr Foskett, the judge said:
"I am not able to hold that the common duty of care required McAlpine to ensure, by enquiry or otherwise, that the men Evans Bros. brought on to the site were able to erect and use this tower scaffold in safety and to prohibit by notice or otherwise their use by those unable to do so.  It was an ordinary piece of equipment of a kind frequently used on building sites by painters.  It had no hidden defect of which Evans Bros. might be unaware.  The responsibility for ensuring that those of their employees who used it were able to do so in safety rested on Evans Bros. alone.  If Evans Bros. felt the need to provide their men with a copy of the instruction manual they should have procured one.  In my judgment McAlpine were not at fault in failing to ask Evans Bros. or the Makepeaces themselves about their experience or in any of the other ways alleged against them.  This conclusion is unaffected by the fact that McAlpine have a safety policy."

Mr Foskett submits that the judge should have held that if McAlpines told or encouraged the claimant to do something which McAlpines knew or ought to have known was potentially dangerous if the claimant had not been properly trained, the ordinary “neighbour principle” demanded that McAlpines should have enquired of the claimant whether he had been properly trained before permitting him to act upon the instruction or encouragement.  The mere fact that some other party “e.g. Evans Bros.” also had some responsibility did not negate the existence of the duty of care owed by McAlpines to the claimant and neither did it discharge McAlpines from its obligation to act in accordance with that duty of care.  

9.	I prefer the approach of the judge.  I do not say, and neither did the judge, that there will never be occasions when the main contractor or occupier will owe a duty of care to the employees of others who come upon the premises distinct from the duty which exists in relation to the state of the premises themselves.  Examples may be found in cases where there has been a failure to co-ordinate the activities of more than one sub-contractor as in McArdle -v- Andmac Roofing Co. (1967) 1 AER 583 and it is not to be supposed that there will not be other factual situations where a main contractor may be liable.  Nor would I reject Mr Foskett’s submission that there may be concurrent liability on the part of the employer and the main site contractor, see Morris -v- Breaveglen Ltd (1993) ICR 766 and Nelhams -v- Sandells Maintenance Ltd and Gillespie (UK) Ltd (1966) PIQR 52.  However the approach adopted by the learned judge and to which I also adhere finds powerful support in the decision of this court in Savory -v- Holland & Hannen & Cubitts (Southern) Ltd (1964) 1WLR 1158 and a decision of their lordships in Ferguson -v- Welsh & Others (1987) 1WLR 1555.  In the first of those two cases building contractors had brought in  specialist sub-contractors to carry out blasting operations at the site.  The sub-contractor’s employee entrusted with the work was a skilled shot-firer.  The defendant provided flag men to give warning when blasting was in progress.  If, as sometimes happened, there was a flag man short the shot firer would take his place and that involved climbing a bank some twelve to fifteen feet in height.  On one such occasion he slipped and hurt himself.  The main point in the appeal was to do with whether or not the shot firer was for the time being, at any rate, an employee of the defendants.  Having found that he was not so employed the court held that there was no duty upon the main contractor to advise the plaintiff how to go about his business.  At pages 1165 and 1166 Lord Justice Diplock said:

"In fact, the allegation of negligence here on the facts comes down to the failure of the defendants’ foreman to give some advice to the plaintiff.  Warnings have already been given from the House of Lords as to not extending the nursemaids school of negligence.  I would certainly not extend it in this case to a duty to advise someone who is the servant of an independent contractor."

The decision of the House of Lords in Ferguson -v- Welsh is important not so much for the facts as for certain observations which occur in the speeches of Lord Keith of Kinkel and Lord Goff of Chieveley.  At p.1560 Lord Keith said this:

"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."

Here, as the judge found, the sub-contractors were of good repute and the claimant was an experienced workman.  At p.1564 Lord Goff said:

"I wish to add that I do not, with all respect, subscribe to the opinion that that the mere fact that an occupier may know or have reason to suspect that the contractor carrying out work on his building may be using an unsafe system of work can of itself be enough to impose upon him a liability under the Occupiers Liability Act 1957 or, indeed in negligence at common law, to an employee of the contractor who is thereby injured, even if the effect of using that unsafe system is to render the premises unsafe and thereby to cause the injury to the employee.  I have only to think of the ordinary householder who calls in an electrician; and the electrician sends in a man who, using an unsafe system established by his employer, creates a danger in the premises which results in his suffering injury from burns.  I cannot see that, in ordinary circumstances, the householder should be held liable under the Occupiers Liability Act 1957, or even in negligence, for failing to tell the man how he should be doing his work.  I recognise that there may be special circumstances which may render another person liable to the injured man together with his employer, as when they are, for some reason, joint tortfeasors; but a such a situation appears to me to be quite different."

Although the learned judge was not referred to Ferguson -v- Welsh and did not refer to it himself in giving judgment, from the way in which he expressed himself there is little doubt in my mind that he was conscious of the passages which I have cited or at least the principle which they embody.

10.	For those reasons I am unable to accept Mr Foskett’s submission that the judge arrived at an erroneous conclusion and I would dismiss this appeal.  

Mr Justice Holman:

11.	I have found this a difficult and borderline case.  The tower scaffold was potentially dangerous but the dangers are not obvious, nor always appreciated.   Further, it does not seem to me that either Ferguson v Welsh or Savory v Holland & Hannen & Cubitts are precisely in point, and each is distinguishable.

12.	In his very helpful written “Response on behalf of Claimant to Respondents’ Submissions”, Mr David Foskett Q.C., on behalf of the appellant claimant, formulated his contended duty of care as follows:-

“If A tells or encourages B to do something which A knows or ought to know is potentially dangerous if B has not been trained properly, the ordinary “neighbour principle” demands that A should enquire of B whether he has been trained properly before permitting the instruction or encouragement to be acted upon by B.  The mere fact that some other party (e.g. B’s employer) also had some responsibility in this regard, does not negate the existence of the duty of care nor does it discharge A from his obligation to act in accordance with it.”

Whilst I entirely agree with the second sentence of that formulation and agree that there may often be joint or concurrent liability, I cannot accept the unqualified breadth of the first sentence.  It must be relevant to the existence of a duty of care to know (i) the legal and factual relationship between A and B, (ii) who and what B is,  and (iii) what the something is.  Myriad examples exist in daily life in which A may tell or encourage B to do something, which may be potentially dangerous if not done correctly, yet A is entitled to assume that B does know how to do it correctly or at any rate to rely upon B volunteering that he does not know how to do so.  For instance, a person who offers to lend an ordinary, conventional car to a mature adult whom he might reasonably assume knows how to drive, is surely not under a duty expressly to ask whether he does know how to do so.  Rather, he may assume that B will tell him if he does not know how to drive.  Many items of ordinary gardening equipment are potentially very dangerous if not used correctly.  But the ordinary householder who engages an apparently experienced jobbing gardener and invites him to make use of ordinary gardening equipment in his garden shed, is surely not under a duty to ask him whether he is properly trained in their use.  An ordinary lawnmower would be on one side of the line, although a chain-saw might be on the other.

13.	So it is necessary to qualify Mr Foskett’s formulation to take account of the relationship between A and B, the identity of B, and what it is that he is told or encouraged to do.

14.	Essential ingredients of the present case are that:

(i)	use of the tower scaffold (although entirely free from any defects) was inherently dangerous unless used correctly, although the dangers are not obvious and are not always appreciated (judgment, page 22F-23B);

(ii)	it was McAlpine who brought this inherently dangerous piece of equipment onto the site;

(iii)	it was McAlpine’s site agent, Mr Hughes, who directly encouraged or instructed the  claimant to use it;

(iv)	Mr Hughes did not enquire whether the claimant appreciated the dangers and/or knew how to use it correctly, and did not forbid him to use it until he had received proper tuition.

15.	It seems to me that those ingredients, in combination, are capable in certain circumstances of giving rise to a common law duty of care upon a main contractor to an employee of a sub-contractor.  But it is relevant and necessary also to consider 

(a)	the piece of equipment in question.  There is a spectrum between the ordinary and common-place (although inherently dangerous), and the unusual or rare; and 

(b)	the trade of the employee in question of the sub-contractor.

	A ladder, an electric drill, or even a hammer can all be dangerous if not used correctly.  But it would be extending what Diplock LJ called the “nursemaid school of negligence” too far to say that if Mr Hughes (on behalf of the main contractor) had instructed or encouraged the claimant, an experienced painter and employee of a sub-contractor, to use a ladder (albeit provided by McAlpine), he was under a duty to ask the claimant whether he knew how to use a ladder correctly and whether he appreciated the dangers inherent in incorrect use; similarly, if the piece of equipment were an ordinary drill or a hammer and the tradesman a carpenter.

16.	Where on the spectrum does the tower scaffold in question lie when the trade in question is that of painter?  Clearly, as this tragic case itself demonstrates, a tower scaffold is capable of being very dangerous.  Clearly, as the manufacturer’s instructions and the Health and Safety Executive Guidance Note GS42 make clear, quite considerable care, precision and expertise are required to set up the scaffold safely in a particular position, and in its use.  But the fundamental finding of the judge remains that “it was an ordinary piece of equipment of a kind frequently used on building sites by painters”.
17.	In the light of that finding of fact, I am unable to conclude that the judge was wrong in his conclusion that Mr Hughes (and therefore McAlpine) did not owe a duty of care, when instructing or encouraging the claimant, a painter, to use the tower scaffold, to ask him whether he appreciated the dangers and/or knew how to use it correctly.

18.	I, too, would dismiss this appeal.

Lord Justice Nourse:

19.	I have had the advantage of reading in draft the judgment of Lord Justice Mantell and, for the reasons he gives, I agree that this appeal should be dismissed.

Order:  Appeal dismissed with costs; appellant’s liability under that order for costs being assessed at nil, order nisi made against the Legal Aid Fund pursuant to section 18 of the Legal Aid Act 1988; legal aid assessment of the appellant’s costs; permission to appeal to the House of Lords refused.

(Order does not form part of the approved judgment)