Moreira v (1) Moran (2) Dunne (3) Prolakeballs Ltd [2021] EWHC 1800 (QB)

The case of Moreira v Moran serves as a reminder to builders and contractors that no matter how small their operation, the onus remains to undertake worthwhile risk assessments in order to establish safe systems of work. The judgment also explores the possibility of an occupier being liable where a contractor fails to do so when completing work on their premises. 

Darryl Allen QC of Farrar’s Building acted for the successful Claimant.

Background

The Claimant (“C”), a labourer, suffered a severe head injury when he fell from an unguarded mezzanine while performing construction work on the premises of the Third Defendant (“D3”).

D3 had engaged the First Defendant (“D1”), a self-employed joiner, to construct an office on the mezzanine level of their premises, a space that had previously been used as a storage area. D1 subcontracted part of the work to the Second Defendant (“D2”), who was also a self-employed joiner; they had previously worked together on several projects. The court found that C was an employee of D2.

Access to the mezzanine level was via a staircase, at the top of which was a guardrail which prevented access to another section which did not have a rail at its edge, meaning that there was a risk of falling to the ground below.  Prior to the accident the guardrail was removed by D2 with the assistance of C.

On the morning of the accident D1 and C were moving MDF boards from the ground level to the mezzanine. After realising the boards were of differing sizes D2 and C set about measuring the boards to find those most alike in size. This process involved D2 selecting a board, removing it from the stack and measuring it while C supported the full weight of the remaining boards. Tragically, C fell off the edge of the unguarded section of the mezzanine and onto the concrete floor below.

The accident had been witnessed by a worker of D3 located in the factory at ground level and it was accepted by a director of D3 that, while he did not witness the accident, he did have an element of control over D1 and D2 so as to be able to direct where they performed the work and, if necessary, he could have stopped them if he witnessed dangerous practices. However, it was not expected that he would control how the work was to be carried out or ensure that C was provided with safe working conditions.  

Decision

Mr David Allan QC sitting as a High Court Judge found that C was an employee of D2 thus establishing a duty of care between the two. He further found that D1, as the main contractor with overall responsibility for the contract, owed a duty to C to ensure that work was carried out in such a way as to minimise the risk of injury.

From this, the judge stated that the decision to work on the unguarded section of the mezzanine created an obvious risk of injury and meant that both D1 and D2 failed to provide a safe place and system of work. If work had to be conducted in that part of the mezzanine, a barrier or scaffolding should have been used; a fact that a “worthwhile” risk assessment by D1 would have established.

With respect to D3, C sought to establish liability pursuant to s.2 Occupiers Liability Act (“OLA”) 1957, in particular s.2(2) which states that: –

“The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”

Also of relevance when considering whether the occupier had discharged the duty of care is s.2(4)(b): –

“where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.” (emphasis added)

The judge turned to the case of Ferguson v Welsh [1987] 1 WLR 1553 to highlight a distinction between dangers that arise out of the “static condition of the premises” and those which arise from “activities carried out on the premises”. In Ferguson the Claimant contractor had been injured by part of a building collapsing during demolition works. In giving the majority speech, Lord Keith noted that the injury was caused due to an unsafe system of work and not out of the use of the premises meaning that s.2(2) was of no assistance to the Claimant.

However, his Lordship stated that s.2(4)(b), despite being in the pluperfect tense, could apply to construction work that was ongoing and not simply work that had already been completed. As a result, it was possible that there may be situations where an occupier is under a duty to take steps to ensure that the system of work employed by an independent contractor is safe and that a failure to do so could give rise to a claim.

Returning to the present case the judge emphasised that the danger C faced was from the fact he was working in a section of the mezzanine without a guardrail meaning that the danger was properly characterised as arising out of the static condition of the premises. Put simply, OLA 1957 applied and D3 owed C a duty of care.

As to the issue of breach the judge found that D3 had discharged their duty of care under ss.2(2) and 2(4)(b) as a result of the following considerations: –

• D3 had originally placed a rail clearly designed to prevent access to that part of the mezzanine, which was removed by D2 and C (a fact which D3 was not aware of until after the accident);

• D3’s director did not know that D1 and D2 were working unsafely;

• D3 had no role in supervising the work and was not expecting to have to tell them how to carry out the work nor intervene to ensure C was provided with a safe system of work;

• D3 had no knowledge of construction work; and, 

• D1 appeared to be a reasonably competent contractor.

The judge finally considered the issue of whether D3 owed a duty of care at common law to C outside of OLA 1957. It had been suggested in Ferguson that there may be circumstances where an occupier could be a joint tortfeasor to the contractor’s negligence, eg where the business had their own full-time safety officer supervising independent contractors. However, this was not the case with D3; its directors had little knowledge of construction matters and had only 2 full-time employees. In the circumstances they could not have been expected to recognise that the place and system of work were unsafe.

Comment

It has long been held that property owners / occupiers, and contractors working at the same premises could also be occupiers for the purposes of the OLA and liability could arise against either or both.

This decision highlights the circumstances in which property owners / occupiers can escape liability notwithstanding that the premises were not reasonably safe. It should be noted that the decision not to impose liability under s.2(4)(b) and the common duty of care turned solely on the facts.

Review by Lewis Scott, a Pupil at Farrar’s Building.

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