Gray v Fire Alarm Fabrication Services Ltd and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Gage,Lady Justice Hallett,Lord Justice May |
| Judgment Date | 10 November 2006 |
| Neutral Citation | [2006] EWCA Civ 1496 |
| Docket Number | Case No: B3 2006/0590/QB |
| Court | Court of Appeal (Civil Division) |
| Date | 10 November 2006 |
[2006] EWCA Civ 1496
IN THE SUPREME COURT OF JUDICAT
COURT OF APPEAL (CIVIL DIVISI
ON APPEAL F
THE HIGH COURT OF JUSTICE QUEENS'S BENCH DIVIS
HIS HONOUR JUDGE MARR-JOHNSON SITT
AS A DEPUTY HIGH COURT JU
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice May
Lord Justice Gage and
Lady Justice Hallett
Case No: B3 2006/0590/QB
HQ04X00015
Martin Porter QC (instructed by Beachcroft L for Appellant 1
Colin McCaul QC (instructed by DLA Piper Rudnick Gray Cary) for Appellant 2
Derek Sweeting QC and Steven Ford instructed by (Messrs Vizards Wyeth) for the Respondent
On 9 January 2001, Ian Gray, a fire alarm installation engineer, employed by Fire Alarm Fabrication Services Ltd (FAFS) fell through a skylight window in the roof of a building at Victoria Station. As a result of injuries sustained in the fall he died. His widow, Barbara Gray, brought a claim under the Fatal Accidents Act 1976 and, as administratrix of his estate, a claim for damages for negligence and breach of statutory duty arising out of his death.
The claims were made against FAFS, the first defendant, E H Humphries (Norton) Ltd (Humphries) , the second defendant and Thistle Hotels Ltd (Thistle) , the third defendant.
Barbara Gray's claims were settled by an admission of liability by FAFS and a consent judgment against it for £400,000 together with costs entered on 6 December 2005. Mrs Gray discontinued claims against Humphries and Thistle. FAFS was left to pursue Part 20 proceedings against Humphries and Thistle for contribution to the judgment sum paid by FAFS to Mrs Gray.
By a judgment given on 3 March 2006 His Honour Judge Marr-Johnson found both Humphries and Thistle negligent in respects causative of the accident and ordered each to contribute to the damages for which FAFS was liable. The judge assessed the responsibility of each of these three parties on apportionment as 50% to FAFS, 30% to Humphries and 20% to Thistle. Humphries and Thistle appeal against the orders for contribution made by the judge, permission having been refused by the judge but granted by Scott Baker LJ.
The Facts
The facts relating to this tragic accident can be shortly stated and in the main are not in dispute. The judge described FAFS as a small company specialising in the installation and maintenance of commercial fire alarm systems. The deceased was one of four shareholders of the company and an experienced installation engineer. He and his work colleagues had some previous experience of working at the premises where the accident occurred. The premises were the Grosvenor Hotel, Victoria Station, London. They were occupied by Thistle as a hotel, but did not include flat roof adjacent to the rear wall of the premises. The latter were owned and occupied by Railtrack plc.
Humphries is a company specialising in electrical contracting.
In or about 2000 Thistle decided that the hotel required refurbishment. It appointed Humphries as the main contractor for electrical work but required Humphries to appoint FAFS as sub-contractors for the installation of a new fire alarm system. Humphries sub-contracted that work to FAFS by an agreement dated 24 November 2000. The value of the work was £141,750 less 5% retained by Humphries.
On Monday 8 January 2001 FAFS started work. At that stage the route for the new electrical cables for the fire alarm system had not been decided. There were three options:
i) To route the cables externally along the route of the existing cabling;
ii) To route the cables internally around ceilings and cornices;
iii) To route the cables internally but boxing them in.
In the event, a decision was made by FAFS to route the cables externally. This involved gaining access to the roof and routing the cabling along an existing cable tray fixed to the external wall. Access to the roof was gained through an open window. From there it was possible to walk along a walkway with the wall on the outside of the walkway and the roof on the inside.
There were no eye witnesses to the accident. The judge found that in walking along the roof in this somewhat confined space the deceased must have stumbled or slipped so projecting himself head-first through a plate glass window on his right-hand side. The judge found that panels of the window were much obscured with dirt but it was safe to assume that the deceased did not walk on them.
The deceased fell into an office occupied by Railtrack and onto a metal filing cabinet. The force of the collision between his head and the filing cabinet caused severe injuries from which he died.
It was the case for Humphries and Thistle that FAFS had been instructed not to route the cable externally. Witnesses for each of these two defendants gave evidence that such instructions had been given to Mr John Butler of FAFS at a meeting on 12 December 2000. Mr Butler denied that any such instructions had been given to him. The judge preferred Mr Butler's evidence to the evidence of other witnesses. In his judgment he said (see para 28) :
"In the result I have reached the conclusion that although stray remarks may possibly have been made by various persons at different times during the meeting, perhaps as an aside or a casual observation, no one made it clear to Mr Butler that he was not to proceed with the third option of external cabling, and that he left the meeting reasonably under the impression that it was for FAFS to decide which route to pursue. Equally I am not satisfied that Mr Butler told the meeting that the roof was "precarious" or unsafe in some way or that it was brought home to him that any other person considered the roof to be dangerous. I accept his evidence that it was a long time since he had been on the roof himself, and he had no recollection one way or another about the state of the roof at the time of the meeting. What he did know, and what he told the others, was that the line of the existing cable lay along an external length of wall and that it was an option to lay the new cable along the same route as before. In general terms I accept the substance of Mr Butler's evidence on this topic."
Part of this finding of fact is challenged by both Humphries and Thistle.
The Judge's findings on liability
Humphries
The judge having referred to a number of authorities cited to him held that Humphries as main contractors in overall charge of the electrical work owed a duty to take reasonable care for the deceased's safety. He said (para 32) :
"So far as Humphries are concerned, the case against them in essence is that as main electrical contractors in overall charge of the electrical work which needed to be done on site, including installation of the new fire alarm system, they owed Mr Gray as one of the persons who would be directly affected by their decisions a duty at common law to take reasonable care for his safety. The potential existence of such a duty is well established in cases such as Clay (supra) and McArdle v Andmac Roofing Co [1967] 1 ALL ER 583. A more recent example is Davis v Earldene and Others unreported, CA QBENF 98/0242/1. 23 February 1999. In the present case the existence of such a duty is confirmed, and its scope defined, in my judgment by the following considerations:
i. The quote for the work which Humphries received from FAFS was for £134,662, and their own quote to Thistle was £148,834. Thus the premium which Humphries were charging for supervising the contract (rounded off) was £14,171. Clearly a substantial degree of supervision was envisaged in return for such a payment.
ii. That quote contained the words "we require daily liaison" and an assurance that the work would be carried out "in accordance with the Factories Act".
iii. The order Humphries placed with FAFS on 24 November 2000 requested a method statement, risk assessment and programme of works. It stated "all work to be agreed and carried out with the close liaison with Mr CD Lewis contracts manager".
iv. Mr Lewis told Health and Safety investigators that he was prepared to prevent FAFS from starting on site if risk assessments were not supplied.
v. Humphries' standard terms and conditions provided that FAFS' work had to be carried out to Humphries satisfaction and in conformity with all reasonable directions by Humphries, and that FAFS must comply with Humphries' health and safety policy.
vi. That policy acknowledged Humphries' duty to "co-ordinate safety activities between main contractor, sub-contractor and any other individuals who might be working on the same site".
There was evidence that there were other workmen on the roof at the time when FAFS was carrying out work under the sub-contract. Two men employed by a Railtrack sub-contractor were the first to find the deceased after his accident.
The judge went on to describe the facts which led him to conclude that Humphries were in breach of that duty. In summary, he held that one of Humphries' employees, Carl Lewis, their senior contracts manager, failed to obtain from FAFS either a proper method statement of the work to be carried out or a proper risk assessment. The judge described the risk assessments actually provided by FAFS as "self-evidently insufficient for the purpose". The risk assessments are in the appeal documents and the judge was plainly correct so to describe them. He criticised Mr Lewis for doing no more than forward them to Thistle. He said that Mr Lewis appeared to be under the impression that any liaison with FAFS or supervision of their activities ought to...
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