Moon v Garrett and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Waller,Lord Justice Jacob,Sir Peter Gibson |
| Judgment Date | 28 July 2006 |
| Neutral Citation | [2006] EWCA Civ 1121 |
| Docket Number | Case No: B3/2005/2941 |
| Court | Court of Appeal (Civil Division) |
| Date | 28 July 2006 |
[2006] EWCA Civ 1121
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM Bristol County Court
His Honour Judge Lambert
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Lord Justice Jacob and
Sir Peter Gibson
Case No: B3/2005/2941
BS204043
Selena Plowden (instructed by Davies and Partners, Solicitors) for the Respondent
Glyn Edwards (instructed by Lyons Davidson, Solicitors) for the Appellant
Introduction
The appellant (Mr Garrett) was doing some building works at his home in October 2001. The respondent (Mr Moon) was employed as a delivery driver by C H Kendal and Sons and on 10 th October 2001 was delivering three and a half pallets of heavy concrete blocks to Mr Garrett. In the course of unloading the blocks, certain blocks became unstable and fell off the lorry. The fall caused Mr Moon to lose his balance and he rolled into a pit and suffered serious back injury. He brought his claim against Mr Garrett and against his employers, C H Kendal and Sons, joining also their successors in title, Travis Perkins plc (to both of whom I shall simply refer hereafter as "the employers").
His Honour Judge Lambert, by a judgment delivered on 6 th December 2005, found Mr Garrett liable but dismissed the claim against Mr Moon's employers. He ruled on the same day that Mr Garrett should pay the costs of not only Mr Moon but the defendants, against whom Mr Moon's claim had been dismissed.
Mr Garrett appeals the judge's decision on liability and, if unsuccessful in that, the judge's decision on costs. The judge's decision on liability was based on the Occupiers' Liability Act 1957, the judge declining to hold that the Construction (Health, Safety and Welfare) Regulations 1996 imposed any duty on Mr Garrett vis à vis Mr Moon. Mr Moon, by a respondent's notice, seeks to uphold the judge's decision on liability on the alternative ground that the 1996 Regulations do apply so as to impose a duty on Mr Garrett vis à vis Mr Moon.
The facts in more detail
Mr Garrett was carrying out buildings works at his property during the course of which he was exposing an "undercroft" by emptying it of rubble. He had, by 10 th October 2001, created a pit or excavation. His intention was to lay concrete beams across the top of the pit in order to create a floor for a garage that he was then going to build. The pit was to be open and exposed for a period of about a week and a half. The pit was found by the judge to be just over two metres deep.
Mr Moon had already delivered one load of blocks to Mr Garrett's house on 10 th October 2001. When he made the first delivery there was no netting around the pit. By the time he came to make the second delivery there had been placed round the pit an orange netting attached to metal poles. The judge had and we also have photographs of that netting as it was after the accident.
On this second occasion Mr Moon unloaded two of the pallets of blocks then turned the lorry around to face the other way so that he could then unload the other pallet and a half. He parked the lorry on a track running through Mr Garrett's property. That track, according to the plan with our papers, passed at an angle to the pit. The unloading appears to have taken place on the edge of the track nearest to one corner of the pit. There was some dispute even before us as to precisely how far the edge of the track was from the edge of the pit, estimates ranging between ten and six feet. I am doubtful whether anything turns on the difference. There was a slope between the edge of the track and the pit. Again, there was some dispute as to precisely where the slope started and precisely where it finished. On any view the ground was made up ground. As a plan shows, the original ground had a significant slope, which would have meant that anyone rolling down the same would have been prevented from rolling into the pit by its wall. But, as at 10 th October, earth had been piled against the wall, leaving only some nine inches of the wall round the pit.
As Mr Moon attempted to unload the blocks, for reasons which no-one was able to explain, the blocks started to fall towards Mr Moon. The sight of the falling blocks caused Mr Moon to step back with a degree of urgency. He somehow lost his footing, catching his heel. He fell to the ground and then rolled sideways down the slope into the orange netting and over the wall that formed the sides of the pit. He fell into the pit and seriously injured his back. It would seem, looking at the photographs, and accepting the submission of Miss Plowden, who appeared on the appeal for Mr Moon, that the effect of the orange netting was, if anything, to provide a means to facilitate the rolling body over the nine inches of wall. The orange netting on any view formed no barrier to prevent a body rolling into the pit.
The critical issue for the judge, once he had dismissed the claims against Mr Moon's employers, was whether Mr Garrett should have guarded the pit by a structure which would have prevented anyone who slipped and rolled entering the pit.
The judge's findings
The judge found that :-
"Due to a combination of his moving back, due to fear of falling blocks and a slightly undulating surface, I find that he lost his footing, fell, rolled and went into the pit. A safety rail would have left him substantially uninjured."
He further found (in the context of the claims against the employers) that:-
"The unevenness of the ground was a slightly contributory factor to the fall, but the ground was not so uneven so as to found any liability in negligence and/or breach of statutory duty by virtue of its unevenness. A polished surface cannot be expected on a building site. Some degree of unevenness of ground must be present on building sites, and indeed the unevenness to be observed in the photographs can hardly be such as to give rise to liability for any tripping or slipping, based on a reasonable condition test for a building site."
So far as the liability of Mr Garrett under the 1996 Regulations is concerned I will return to that when dealing with Mr Moon's Respondent's Notice. Suffice it to say at this stage that the judge held that those Regulations did not apply to Mr Moon, since he was "acting as a delivery driver", whereas the Regulations applied to "construction work carried out by persons at work" which he interpreted as "construction workers" as such. Thus it was that the judge considered Mr Garrett's liability by reference to the Occupiers' Liability Act and negligence, in relation to which he said "the two seem to me to go hand in hand", a proposition which was not challenged.
12. The judge quoted s.2(2) of the Occupiers' Liability Act. The obligation under that section is "to take such care as in all the circumstances of the case is reasonable to see that the visitor would be reasonably safe in using the premises for the purpose for which he is invited to be there." He then found that "the nature of the hazard here present was extreme, and I must take that into account when assessing whether or not a duty of care was in fact complied with, both under the Act and in negligence."
His finding was:-
"The danger of an unguarded pit in excess of two metres deep and with a solid base is self evident. The pit was, I find, close to an area where building supplies were going to be unloaded and where people were working. The traffic around it was regular and significant. This was not an isolated, private place where only a few might resort. The fact that it was only going to be left open and a hazard for a week and a half is of note, but the hazard was potentially an extreme one. The first defendant (Mr Garrett) was aware that the pit posed some danger. He had purchased and erected a warning fence and it was just that. It was quite inadequate, as I find it to be, to prevent people from falling in.
The first defendant (Mr Garrett) had instructed men to work in close proximity to the pit. He knew supplies were being delivered. He knew they were being unloaded in the vicinity by lorries. I reject the contention that this fall was an event so peculiar that it could be excluded from reasonable consideration, and I find that a fall into the pit is a reasonably foreseeable matter. (Mr Garrett) should have been aware of the proper requirements for safety, to the extent that a reasonable man would have been. He pleads ignorance before me. I accept his evidence of his ignorance but I find that he should not have been so. Reasonable care on looking to this pit requires a reasonable man in his position to see that visitors could have fallen into the pit. It may only be a risk of short duration, but it was reasonably foreseeable that the consequences could be catastrophic and in those circumstances anyone looking at this situation would reasonably have seen that it should have been guarded against. . . . The risk of stumbling, tripping, slipping, rolling, falling, or any combination of those, was plain and should have been self evident. The risk of very serious injury was blindingly obvious with a drop of this height onto a solid surface. It seems to me that it is plain that (Mr Garrett) was under a duty to erect a strong fence or guard around the pit, in such a way as to prevent a person stumbling, tripping, slipping, rolling, falling, or any combination of those, into the pit. That he failed to do."
The submissions for Mr Garrett
14. Counsel for Mr Garrett emphasised that the duty under the Occupiers' Liability Act was owed to the particular...
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