Ferguson v John Dawson & Partners (Contractors) Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE LAWTON,LORD JUSTICE BROWNE |
| Judgment Date | 22 July 1976 |
| Judgment citation (vLex) | [1976] EWCA Civ J0722-2 |
| Date | 22 July 1976 |
| Court | Court of Appeal (Civil Division) |
[1976] EWCA Civ J0722-2
Lord Justice Megaw
Lord Justice Lawton and
Lord Justice Browne
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(From: Mr. Justice Boreham - Leeds)
Mr. OLIVER POPPLEWELL, Q.C. and Mr. CHRISTOPHER HOLLAND (instructed by Messrs. Ward Bowie, Agents for Messrs. John King & Co., York) appeared on behalf of the Appellants (Defendants).
Mr. ROY BELDAM, Q.C and Mr. ROGER HUNT (instructed by Messrs. G Crombie, Wilkinson & Robinson, York) appeared on behalf of the Respondent (Plaintiff).
On 19th April, 1972, the plaintiff, Mr. Michael Joseph Ferguson, fell some 15 feet from a flat roof on which he was working. He suffered serious injuries. He claimed damages for breach of statutory duty from the defendants, John Dawson & Partners (Contractors) Ltd. The action was heard by Mr. Justice Boreham in the Crown Court at Leeds. On 28th July, 1975, the learned judge gave judgment for the plaintiff for £30,387.88, including interest The defendants appeal on issues as to liability. There is no appeal as to the amount of damages.
The facts of the accident are not in dispute. The defendants were contractors who had undertaken building operations for the extension of a shop building in Walmgate, York. The work had involved the use of scaffolding erected on a flat roof. The scaffolding, after that part of the work had been finished, was taken down. The day after it had been taken down the plaintiff wafe ordered by Mr. Murray, the defendants' site agent, to remove some 12 or 14 scaffold boards which had been left on the flat roof. There was also some. rubble on the roof. The plaintiff was to throw the scaffold boards over the edge of the flat roof to the ground below. He had thrown down 2 or 3 boards. When he was engaged in throwing down another board, he stumbled and fell off the flat roof. There was no guard rail on the flat roof.
Regulation 28 (1) of the Construction (Working Places) Regulations, 1966, so far as is relevant, provides: "Guard rails and toe-boards at working platforms and places. Every side of a working platform or working place, being a side thereof from which a person is liable to fall a distance of more than 6 feet 6 inches, shall…. be provided with a suitable guard rail or guard rails of adequate strength to a height of between 3 feet and 3 feet 9 inches above the platform or place…."
Regulation 3 (1) (a), so far as is relevant, reads: "It shall be the duty of every contractor, and every employer of workmen, who is undertaking any of the operations or works to which these Regulations apply - (a) to comply with such of the requirements of the following Regulations as affect him or any workman employed by him, that is, to say, Regulations 6 to 23, 25, 30, 31, 32, 36 and 38 and, in so far as they relate to the falling or slipping of persons, Regulations 24, 26, 27, 28, 29, 33, 34 and 35…."
The learned judge held, contrary to the defendants' submissions:
(i) that the plaintiff was employed by the defendants so that the defendants owed to him the statutory duty comprised in regulation 28 (1); and
(ii) that the place where the plaintiff was working when the accident happened, the flat roof, was a "working place" within regulation 28 (1).
The defendants appeal on each of those issues.
I propose to deal first, out of logical order, with the second of those issues. The defendants have at all times conceded that this flat roof in all its characteristics except one would be a working place within the regulation. The one essential characteristic which is said to be missing is the length of time for which the place was going to be used by the plaintiff for the purposes of the work which he had been required to do. The authorities Gill v. Humberstone (1963) 1 Weekly Law Reports 929, a decision of the House of Lords, and Kelly v. Pierhead Ltd. (1967) 1 Weekly Law Reports 65 and Boynton v. Willment (1971) 1 Weekly Law Reports 1625, decisions of this Court, say that a necessary characteristic of a working place is that it is to be used for work for "an appreciable time". The defendants say that the intended use here, namely the removal from the roof and the throwing to the ground of 12 or 14 scaffold boards, did not involve work at this place, on the flatroof, for "an appreciable time". The judge held on the evidence that that work would have taken about 10 or 15 minutes. The judge, in error, thought that the plaintiff's instructions had included also the removal of rubble from the roof. But in my judgment that mistake does not matter. In any ordinary use of the word "appreciable", which word is accepted by both parties as being the relevant adjective, the 10 or 15 minutes required for the plaintiff's intended work was an appreciable time. I do not find it necessary to consider the further submission by Mr. Beldam for the plaintiff that the evidence indicates that there must have been a substantial period of time during which work was being carried out, though not by the plaintiff himself, on this flat roof on the previous day and also on the morning of the accident. Mr. Popplewell submits that the plaintiff cannot rely upon such work by other persons to whom no duty may have been owed by the defendants. But the 10 or 15 minutes is an appreciable time. The appeal on that issue fails.
I turn to the other issue. Was the plaintiff employed by the defendants? For the plaintiff it is submitted that he was employed by the defendants under a contract of service. For the defendants it is contended that the contract was a contract for services, and therefore the defendants were not under a statutory duty to him to provide a guard for the working place. For if it were a contract for services the plaintiff would not have been "employed" by the defendants; and in the circumstances of this accident regulation 3 (1) (a) would not have brought regulation 28 (1) into effect so as to impose on the defendants a duty towards the plaintiff. Regulation 28 (1) is brought into operation only in relation to "the falling or slipping of persons" (which this accident was) so far as the requirements of "that regulation "affect….any workman employed by him": "him", here, being the defendants. Regulation 3 (1) (b) has a wider scope as regards the persons who are under theduty; but it is confined to "the falling of materials and articles".
It is conceded by the defendants that if the plaintiff was employed under a contract of service, they were, subject only to the issue as to "appreciable time", under a duty to the plaintiff; they failed to carry out that duty; and that failure was the cause of the accident. But, say the defendants, the plaintiff was employed under a contract for services: he was "self-employed": he owed a statutory duty to himself to take the statutory precautions ( Smith v. Wimpey Bros. (1972) 2 Queen's Bench 329). It was for him, under the regulations, not for the defendants, to ensure that the guard rail was erected. The defendants were under no such duty.
What is the basis for that contention? The judge accepted the evidence given by Mr. Murray, the defendants' site agent, as to the circumstances in which the plaintiff came to work for the defendants in January, 1972, some three months before the accident happened. The evidence was simply this: the plaintiff came with four other Irishmen, already working for the defendants, and he asked, or perhaps one of his friends asked, if he could "come along". Mr. Murray's evidence is: "I said he could start on Monday and that was it. But I did inform him there were no cards; we were purely working as a lump labour force".
Mr. Ferguson gave a false name, Goff. That was the name by which he was known to Mr. Murray. That was the name in which he signed at least some receipts for the moneys paid to him weekly - referred to by Mr. Murray in evidence as "his wages". The evidence showed that, as was no doubt intended as a feature of the so-called "lump", the defendants did not make deductions in respect of income tax from the weekly payments to the plaintiff; nor did they make any payments in respect of insurance contributions. They did not have his insurance card, nor his tax form, known as p. 45. It is fair to the defendants to say that this engagement of the plaintiff, inJanuary, 1972, whatever its legal effect, was made some months before the provisions of section 28 of the Finance Act, 1971, came into effect. When those provisions came into force on 1st April, 1972, the defendants thereafter, up to the time of the accident, deducted 30 per cent, from the sums due to the plaintiff, since he did not have a certificate, as specified in the Act, entitling him to exemption from P. A. Y. E, deductions.
In the circumstances, although neither party has raised, or wishes to raise, any issue as to possible illegality – arising in particular out of the judge's reference to the plaintiff's use of a false name in conjunction with the facilities afforded by "the lump' as being "a thoroughly dishonest device" for the purpose of evading his tax liabilities – we thought it right to raise the question on our own initiative. However, I think Mr. Beldam is justified in his submission that, however suspicious the facts may appear - and they are indeed gravely suspicious - it would not be right for this Court, to hold affirmatively that there was here dishonesty which would affect the contract, whatever it was, with illegality. Mr. Beldam stresses that the plaintiff has not been given the opportunity to answer any questions suggesting such dishonesty. He was not cross-examined on that topic. The defendants did not seek to raise it. The judge asked no questions about it. In those circumstances we did not think it necessary to consider further arguments which Mr....
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