Lane v The Shire Roofing Company (Oxford) Ltd

In an unobserved accident, a court may infer causation from proved facts on the balance of probabilities where the inference is a reasonable deduction rather than mere conjecture. Employment status depends on the whole relationship. Control matters, but the broader questions include whose business the worker was carrying on, the economic reality, and responsibility for overall safety. For work at height, the suitability of a ladder must be assessed against the work as a whole and foreseeable risks, including overreaching and unsafe shortcuts. An employer’s duty to provide a fail-safe system may coexist with contributory negligence where an experienced worker rejects safer equipment or adopts a foreseeable shortcut. Appellate courts should respect trial judges’ findings on conflicting expert evidence and earning capacity unless shown to be wrong.

The appellant suffered serious brain injuries while re-tiling the porch roof of a house. He was working alone and had no recollection of the accident. The trial judge inferred that he had fallen from a ladder while cutting slates, but found that he was an independent contractor and that the respondent was not liable.

The appellant challenged the findings on causation, employment status and breach of duty. The respondent cross-appealed on contributory negligence and damages. The central issues were whether the respondent owed the appellant the duties of an employer, whether a ladder was an appropriate and sufficient means of support under Regulation 7 of the Construction (Working Places) Regulations 1966, and whether the damages assessment should stand.

Lord Justice Henry delivered the first judgment. Lord Justices Nourse and Auld agreed, making the decision unanimous.

1. Causation. The absence of direct evidence did not prevent a finding about how the accident occurred. The trial judge was entitled to draw a reasonable inference from the appellant’s last memory, the blood on the ground and the nature of the injuries. Unsupported possibilities such as assault or seizure did not displace the inference. The proved facts went beyond mere surmise or conjecture. Jones v Great Western Railway (1930) 47 TLR 39 was applied.
2. Employment status. The question was one of law determined from all the circumstances. Control was important but not decisive. For skilled work, the inquiry broadened to whose business the worker was carrying on, informed by economic reality, financial risk, opportunity for profit and responsibility for overall safety. The porch work was the respondent’s business, not the appellant’s. The respondent therefore owed him the duties of an employer. The court used the principles in Market Investigations Ltd. v. Minister of Social Security [1969] 2 QB 173, United States of America v. Silk (1946) 331 US 704 and Ferguson v. Dawson [1976] 1 WLR 1213.
3. Work equipment. Regulation 7 of the Construction (Working Places) Regulations 1966 required the suitability of a ladder to be considered by reference to the work as a whole. The job involved several days of two-handed roofing work on a narrow hip. Overreaching and cutting slates while on the ladder were foreseeable. A ladder was therefore not an appropriate, sufficient and suitable means of support, and the respondent was liable.
4. Contributory negligence. The appellant’s refusal of a trestle or scaffold tower, together with his foreseeable shortcut of cutting a slate on the ladder, amounted to contributory negligence. His responsibility was assessed at 50 per cent, having regard to the respondent’s responsibility to provide a fail-safe system.
5. Damages and order. The challenges to the medical evidence, earning capacity and loss-of-earnings assessment disclosed no proper basis for interference. The appeal was allowed with costs. Judgment was entered for £102,500 plus interest at the judgment rate from 26 May 1993. The plaintiff’s costs were subject to legal aid taxation, and leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) — In [1995] EWCA Civ 37, allowed the appellant’s appeal, held that the respondent owed employer’s duties and was liable subject to 50 per cent contributory negligence, and upheld the material damages assessment.
• High Court of Justice, Queen’s Bench Division — His Honour Judge Hutton found for the respondent, holding that the appellant was an independent contractor and that the respondent owed no duty of care.