Gray v Fire Alarm Fabrication Services Ltd and Others

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeH.H. Judge Marr-Johnson
Judgment Date03 Mar 2006
Neutral Citation[2006] EWHC 849 (QB)

[2006] EWHC 849 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

HH Judge Marr-Johnson

Sitting As A Deputy High Court Judge

Between:
BARBARA GRAY (widow and administratrix of the estate of IAN GRAY deceased) and
Claimant
Fire Alarm Fabrication Slervices Limited
First Defendants
and
E.H. HUMPHRIES (NORTON) LIMITED and
Second Defendants
Thistle Hotels Limited (formerly Thistle Hotels plc)
Third Defendants

Mr William Featherby for the claimant Mr Steven Ford for the 1 st defendants

Mr Martin Porter for the 2 nd defendants

Mr Cohn McCaul QC for the 3 rd defendant

Hearing dates: 6th -9th December 2005

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this

Judgment and that copies of this version as handed down may be treated as authentic.

H.H. Judge Marr-Johnson

Introduction

1

Ian Gray was a fire alarm installation engineer employed by the first defendants, Fire Alarm Fabrication Services Ltd ("FAFS"). On 9 January 2001 he died in an ambulance on the way to hospital after falling through a skylight over the station manager's office at Victoria station. It is agreed on all sides that the accident was tragic and unnecessary, and ought to have been easily preventable.

2

In this action Mr Gray's widow, Barbara, claims under the Fatal Accidents Act 1976 and as administratrix of his estate damages for negligence and breach of duty arising out of the death of her husband against his employers, FAFS; against E.H. Humphries (Norton) Ltd ("Humphries"), a company of electrical contractors to whom FAFS were sub-contracted; and against Thistle Hotels Ltd ("Thistle") who owned and occupied the hotel premises where Mr Gray was working at the time of his death.

3

Proceedings were issued on 6 January 2004 and FAFS promptly admitted their liability in the matter. On Tuesday 6 December 2005 I approved a settlement of the claimant's action as against them and the claimant discontinued any further proceedings against Humphries and Thistle. On the following day I commenced hearing the present proceedings which are a claim by FAFS against Humphries and Thistle for contribution towards the damages and costs which they have had to pay to the claimant. The claim is brought pursuant to s1 of the Civil Liability (Contribution) Act 1978. Both Humphries and Thistle deny any liability to contribute to those damages or costs as suggested by FAFS. In addition Humphries claim the benefit of a contractual indemnity which would (they say) exempt them in any event from liability to compensate FAFS, even in relation to matters arising from their own negligence or breach of statutory duty.

The Evidence

4

FAFS are a small company specialising in the installation and maintenance of commercial fire alarm systems. They began originally in October 1988 as a partnership of five persons, one of whom was Mr Gray. In December 1990 the partnership became a limited company in which Mr Gray had a 20% shareholding. Over the years two of his colleagues, John Butler and Graham Corden, assumed an increasing responsibility for the planning and office work, whereas Mr Gray preferred to continue working with the other operatives in the field. Altogether there are presently some 19 persons on the company payroll.

5

It seems clear from the evidence that FAFS, although comparatively small in size, were then and are now a good and efficient organisation so far as their work is concerned with a high reputation in their specialist field. In about 1975 some of the persons who subsequently went on to form the original partnership had been involved in the installation of a fire alarm system in the Grosvenor Hotel at Victoria station which was then owned by British Rail. After FAFS came into existence those same persons or their colleagues continued to maintain the system which they had previously installed, Of course the British Railways Board has long been consigned to history; the hotel now belongs to Thistle and is known as the Thistle Victoria Hotel.

6

Over the years before his death Mr Gray had therefore carried out work from time to time at the hotel, as had many of his colleagues. One of the constituent wires of the system ran along a cable tray located on the external rear wall of the hotel between the main building and the annexe. In order to get to the cable tray it was the practice to climb out of a lavatory window of the hotel at second floor level and walk along a roof for some distance parallel to the rear wall of the main building. This area of roof, which is where Mr Gray eventually met his death, is shown most clearly in the photographs at bundle pages 489 and 493A-D and on the plan which is at page 531. The roof does not belong to the hotel but forms part of the premises of Victoria Station. However it does not appear that over the years Mr Gray or his colleagues ever gave any thought to the fact, or indeed realised, that every time they got out onto the roof to carry out work on the fire alarm system they were actually trespassing on railway property.

7

In 2000 Thistle decided that the hotel needed substantial refurbishment, and for the electrical work Thistle appointed Humphries as the main contractors. Thistle had had a longstanding relationship with Humphries, and had used them for electrical work on many previous occasions. Thistle also knew of course that FAFS had unrivalled experience of the fire alarm system at the hotel, and for this reason instructed Humphries to appoint FAFS as their sub-contractors for the work of installing the new system which was required. Humphries had not previously worked with FAFS.

8

In due course FAFS received from Humphries an order dated 24 November 2000 for work to the value approximately £141,000 less a main contractor's discount of 5%. On 12 December there was a meeting on site between representatives of Thistle, Humphries and FAFS at which routing of the cables for the new system was one of the subjects discussed. There is a substantial disagreement between the witnesses about what was said and how the matter was left at the conclusion of the meeting, a matter to which I shall have to return later. However FAFS' representative at the meeting, John Butler, is adamant that one of the cabling routes which was left open as a live possibility for that part of the building which joined the annexe to the main hotel was the external route along the line of the existing cable tray.

9

The work was due to begin on Monday 8 January 2001. On the previous Friday Mr Butler had a meeting on site with Mr Gray. Although both men were shareholders in the company, Mr Butler was effectively acting as the representative of management and briefing Mr Gray on what work needed to be done. Mr Gray had not attended the meeting on 12 December 2000. Mr Butler says he relayed to Mr Gray his understanding of the conclusions of that meeting, namely that there were three available options which were as follows:

i) The bare cable could be run along internal walls, negotiating various period features such as cornices and ornate ceilings. This would not present an attractive appearance.

ii) The cable could be run along the same line as above, but boxed in so as to present a less disfiguring appearance.

iii) The cable could follow the line of its predecessor and run externally.

10

Mr Butler says that he left it to Mr Gray to decide which option to choose when he came to do the work. He knew that Mr Gray would be working with Andrew Penney, another shareholder of the company at that time and also an extremely experienced operative. Mr Butler felt that Mr Gray and Mr Penney had far more recent practical experience of routing cables than he did, and that it was therefore preferable to leave it to them to decide precisely where the cables should run.

11

Work started on Monday 8 January 2001. However Mr Penney was on holiday on that day and it is not clear what work, if any, Mr Gray did in his absence. On the following morning both men appeared for work and there was a discussion, amongst other things, about how the cable in question should be routed. Mr Gray told Mr Penney that there was no need for the cable to be routed externally, but having discussed the matter both men decided that it was not feasible to route the cable internally. According to Mr Penney a bare cable on the wall "would not have looked right" and in any event they felt that the walls were too thick to drill through without the use of special equipment which they did not have. They decided therefore to route the new cable along the line of the existing external cable.

12

The only witness who was able to help with the sequence of events thereafter was Mr Penney, and even he was not able to explain precisely how or why Mr Gray came to fall through the skylight in the way he did. While Mr Gray was working inside the hotel in the corridor, Mr Penney got out of the window and walked along the length of roof shown in the plan and photographs to the area where the cable tray was situated. After he had been working there for approximately 1 1/2 hours, Mr Gray put his head out of a window and said he would come to lend Mr Penney a hand. Approximately 10 minutes later a person who happened to be on the roof engaged on other work of some kind told Mr Penney that he thought his colleague had fallen through a skylight. Mr Penney immediately made his way downstairs through the hotel to the station concourse and thence up to the station manager's office where he found Mr Gray mortally wounded, being attended to by a paramedic.

13

It is not suggested that the other workman who spoke to Mr Penney on the roof witnessed the actual moment of Mr Gray's fall. His principal injury was a massive blow to the head, which seems to have been caused when his head struck the corner of a...

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