Makepeace v Evans Brothers (Reading) (A Firm) & Anor

A main contractor or occupier does not ordinarily owe a sub-contractor’s employee a duty to check that the employee is trained to use ordinary building equipment merely because the contractor permits or encourages its use. The existence and scope of any duty depend on the relationship between the parties, the identity and experience of the person concerned, and the nature of the equipment or activity. A duty may arise in special circumstances, including where the contractor knows or should suspect an unsafe system, fails to co-ordinate contractors, or directly creates a relevant danger. Responsibility resting on the employer does not automatically exclude concurrent liability. An ordinary tower scaffold used by an experienced painter fell outside the circumstances requiring an additional enquiry into competence.

The claimant, an employee of Evans Brothers, suffered permanent injury when a tower scaffold provided by the main contractor, McAlpine, toppled during painting work. The first-instance judge held Evans Brothers liable in negligence and for breach of statutory duty, reduced damages for contributory negligence, and dismissed the claim against McAlpine under the Occupiers Liability Act 1957 and in common-law negligence.

The claimant appealed, contending that McAlpine’s site agent had assumed a duty to ask whether he and his cousin were trained to erect and use the scaffold safely. The central issue was whether the circumstances imposed such a duty on the main contractor despite the employer’s responsibility for its employees’ competence.

1. The appeal was dismissed. The first-instance judge had correctly applied the law to the facts. The claim’s formulation in negligence, rather than under the Occupiers Liability Act 1957, did not alter the result.
2. Per Mantell LJ, a main contractor or occupier may owe employees of another contractor a duty distinct from the duty concerning the state of the premises. Such liability may arise in special factual situations, including failure to co-ordinate the activities of sub-contractors. Employer and main-contractor liability may therefore be concurrent.
3. However, the court followed the approach supported by Savory v Holland & Hannen & Cubitts (Southern) Ltd (1964) 1WLR 1158 and Ferguson v Welsh (1987) 1WLR 1555. There was no ordinary duty on the main contractor to advise a sub-contractor’s employee how to perform his work or to investigate his competence where the sub-contractor was reputable and the employee was experienced.
4. Holman J regarded the case as borderline and considered that any proposed duty must be qualified by the legal and factual relationship between the parties, the identity of the person instructed, and the nature of the equipment or activity. Those considerations did not justify a duty here. The scaffold was an ordinary type of equipment frequently used by painters, and the claimant was an experienced painter.
5. Appeal dismissed with costs, subject to the stated legal-aid order. Permission to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) — [2000] EWCA Civ 171: appeal dismissed with costs.
• Queen’s Bench Division — Sir Charles McCullough dismissed the claim against McAlpine, while finding the employers liable and reducing agreed damages for contributory negligence.