Smith v George Wimpey & Company Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STAMP |
| Judgment Date | 22 March 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J0322-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 March 1972 |
[1972] EWCA Civ J0322-1
In The Supreme Court of Judicature
Court of Appeal
Appeal by Plaintiff from judgment Mr. Justice Melford Stevenson on 26th October 1971.
The Master of the Rolls (Lord Denning),
Lord Justice Megaw and
Lord Justice Stamp.
Mr. PATRICK MAYHEW (instructed by Messrs. Blatchfords) appeared on behalf of the Appellant Plaintiff.
Mr. M. CROWTHER (instructed by Messrs. L. Bingham & Co.) appeared on behalf of the Respondent First Defendants.
Mr. M. WRIGHT (instructed by Messrs. Berrymans) appeared on behalf of the Respondent Second Defendants.
In the Autumn of 1966, a great highway, the M.1, was built near Chesterfield. A bridge had to be thrown over a single line railway. The main contractors for the construction of the bridge were John Laing & Son, Ltd.; but they sub-contracted the asphalting of the bridge to George Wimpey & Co. Ltd. Mr. Robert Smith, some 60 years of age, was one of the men employed by Wimpeys. The foreman of his gang was his son, F.A. Smith. In the course of the work both Laing's men and Wimpey's men had trodden out a path down the side of the cutting, across the rail lines, and up the other side. It was a well trodden path. There were two other ways of getting across the line. One was by going up a ladder on one side of the partially constructed bridge and down a ladder on the other side. The other was over sleepers a little further away.
On 10th September, 1966, Wimpeys had practically completed their asphalting. They were getting their boiler away. It got stuck. A message had to be taken to the site office of Laings. The foreman, Mr. F.A. Smith, went first. He went down this trodden path and up the other side without coming to any harm. Soon afterwards Mr. Robert Smith, the plaintiff, went with a different message. He was making his way down this trodden path. It was a steep path, and there were loose bits of rubble on it. He put his foot on to a loose piece of rubble and slipped. His hand hit a bit of concrete slab. It was cut, but not very seriously. He had to have 20 stitches in. It became dirty and took some time healing. But he went back to work again in November. He later had trouble with it, but it is all well now.
Mr. Smith claims damages against his own immediate employers, the sub-contractors, Wimpeys, and against the main contractors, John Laing.
In view of the discussion before us, I will endeavour to set out the duties of the parties. Wimpeys, the sub-contractors, were the employers of Mr. Smith. They owed to him the ordinary common law duty of an employer to his workman to take reasonable care for his safety. In addition, they owed him a statutory duty under the Building Construction (Working Places) Regulations - Regulation 6(1): ". there shall, so far as is reasonably practicable, be suitable and sufficient safe access to and egress from every place at which any person at any time works, which access and egress shall be properly maintained."
Laings, the main contractors, were occupiers of this site. Mr. Smith was a visitor to it. Laings owed to Mr. Smith the common duty of care which is contained in the Occupiers' Liability Act, 1957, section 2(2), namely, to use reasonable care to see that the visitor will be reasonably safe. In addition, as main contractors, they were under a duty to lay out the work of the sub-contractors and to co-ordinate their activities with reasonable care, so as to ensure that the men were not confronted with unnecessary risk, see McArdle v. Andmac Roofing Co. (1967) 1 W.L.H. 356.
Those duties are not in controversy. But an important point has been raised before us as to whether Laings, the main contractors, owed to Mr. Smith, who was employed by the subcontractors, the statutory duty under the Building (Construction) Regulations. Upon this point there have been conflicting decisions by Judges of first Instance. Two Judges one way. Two Judges the other way.
The responsibility for observing the Regulations is set out in Regulation 3. So far as material, it says:
"3(1): 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, Regulation 6 etc."
The Regulation has been in those words since the year 1961. Before that date the words I have underlined "him or" were omitted. In the Regulation of 1926 the words were "as affect any workman employed by him". In the 1948 Regulations the words were "as affect any workman employed by him." In the 1961 Regulations the words are "as affect him or any workman employed by him."
Before 1961 the words as they then stood were construed by the Courts in this way. The main contractor owed the duty under the Regulations to workmen employed by him, but not to the workmen employed by a sub-contractor, see Claydon v. Sir Lindsay Parkinson Ltd. (1939) 2 K.B. 385: nor to the workmen employed by the building owner, see Wingrove v. Prestige & Co. Ltd. E (1954) 1 W.L.R. 524; nor to a man engaged as an independent contractor and not as a servant, see Herbert v. Harold Shaw Ltd. (1959) 2 Q.B. 138. In short, it was held that the main contractor owed the duty under the Regulations only to his own workman and not to others.
In 1961 the words "him or" were introduced for the first time. What is the effect of those two words? In Upton, v. Hipgrave Brothers (1965) 1 W.L.R. 208, Mr. Justice Marshall held that a main contractor was under a duty under the Regulations not only to his own workmen but also to the workmen employed by a sub-contractor. The decision was followed very recently in Bean v. B. French Ltd. (1971) 2 A.E.R. 1111 by Mr. Justice Bagnall. But two other Judges have held differently. In Bunker v. Charles Brand & Son Ltd. (1969) 2 Q.B. 480, Mr. JusticeO'Connor held that the main contractor did not owe a duty under the Regulation to the workmen of the sub-contractor. This was followed by Mr. Justice Orr in Taylor v. Sayers (1971) 1 W.L.R. 561.
Which of these decisions is right? I think that Mr. Justice O'Connor and Mr. Justice Orr were right. The words "him or" were inserted to fill the loophole left by Herbert v. Harold, Shaw (1952) 2 Q.B. 138. Under that decision en independent contractor was not bound to observe the Regulations. The words "him or" were inserted so as to impose upon an independent contractor a duty under the Regulation towards himself, e.g., to provide safe access for himself. He was put under duty to obey the Regulations so as to ensure his own personal safety. He owes the duty to himself. In case of a breach of this duty to himself, proceedings could be taken by way of a prosecution before the Magistrates: but he could not sue himself for damages.
My reasons for so holding are these; If the legislature had intended to extend the liability of a main contractor under the Regulations so as to make him liable to the servants of the sub-contractor, the simple way of doing it would be to amend the 1948 Regulations by removing the words "by him", so that the Regulations would make the contractor responsible for "any workmen employed", leaving out the words "by him". It is well settled that the words "workmen employed" mean any person employed on the site, see Massey-Harris-Ferguson (Manufacturing) Ltd. v. Piper (1956) 2 Q.B. 396. Moreover, if the words "him or" were construed so as to make a main contractor liable to the workmen employed by a sub-contractor, it would make paragraph 3(1)(b) unnecessary, because everything would be covered by paragraph 3(1)(a), whereas paragraoh 3(1)(b) is very necessaryand was given a wide import by the House of Lords in Donaghey v. Boulton & Paul Ltd. (1968) A.C. 1.
On the other side, it was suggested that the Minister had no power to make Regulations in respect of independent contractors. Section 76(1) of the Factories Act 1961 enables the Minister to make Regulations where the work "is of such a nature as to cause risk of bodily injury to the persons employed or any class of those persons". In a case in this Court in 1966, Barry v. Black-Clawson International Ltd., which is only reported in knight's Industrial Reports at page 237, it was said by Lord Justice Russell and Lord Justice Salmon that the Minister had power to make Regulations in respect of the persons employed or any class of those persons", but he had not power to make Regulations in respect of independent contractors. I do not think that is right. Those observations were not necessary for the decision. and were made without reference to subsection (2) of section 76, which says that Special Regulations may impose duties on owners, employed persons and other persons as well as on occupiers. That subsection gives the Minister power to make Regulations in respect of independent contractors. It authorises the Minister, therefore, to insert the words "him or" in Regulation 3 so as to make an independent contractor responsible for obeying the Regulations for his own safety.
I hold, therefore, that the duties owed by Laings, the main contractors, to Mr. Smith were only the duties imposed at common law and not the statutory duty under the Regulations.
I now turn to the facts. The Judge expressed his reasons very briefly, almost too briefly. He referred to the Regulation and the statute, and he said: "I have anxiously considered whether any of these revisions can be applied so as to afford relief to the plaintiff, who, in negotiating this steep and roughrubble path down an embankment on a construction site, loses his balance in broad daylight and so slips and cuts his hand on an adjacent piece of...
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