McCook v Lobo

An occupier who engages an apparently competent building contractor does not control construction work merely because the occupier controls the site generally or may require obvious hazards to be removed. Liability under regulation 4(2) of the Construction (Health, Safety and Welfare) Regulations 1996 depends on factual control over the way the construction work is carried out.

A client's failure to procure a health and safety plan under regulation 10 of the Construction (Design and Management) Regulations 1994 neither creates that control nor establishes liability without proof that the breach caused the injury. A plan need not necessarily prescribe elementary precautions already imposed on the contractor.

The claimant, a labourer employed by a building contractor, suffered serious back injuries when an unsecured and unfooted ladder slipped during refurbishment work. The owner and intended occupier of the premises had engaged the contractor but did not direct the claimant's work or supply the ladder.

The Central London County Court held the contractor liable in negligence and for breach of statutory duty, subject to 25% contributory negligence. It dismissed the claim against the owner and his company. The claimant appealed, principally alleging liability under regulation 4(2) of the Construction (Health, Safety and Welfare) Regulations 1996 and regulation 10 of the Construction (Design and Management) Regulations 1994.

The central issues were whether the owner had the requisite control over the construction work and whether the admitted absence of a health and safety plan caused the accident.

1. Appeal dismissed unanimously. Judge LJ delivered the leading judgment. Hale LJ and Pill LJ agreed. The trial judge was entitled to find that only the claimant's employer was liable.

2. The first defendant's common-law duty was confined on the facts to the occupier's common duty of care under the Occupiers' Liability Act 1957. The approach in Kealey v Heard did not establish a distinct duty apart from occupiers' liability unless another simultaneous duty arose, such as one based on employment. The occupier was not required to ensure that the contractor's ladder was secured or footed, to direct how it should be used, or to test each worker's understanding of the obvious risk.

3. Regulation 4(2) of the Construction (Health, Safety and Welfare) Regulations 1996 requires factual control over the way construction work is carried out. General control of premises, or authority to require the removal of obvious hazards, is insufficient. A person who possesses the requisite control cannot avoid liability by declining to exercise it, but the existence and extent of control remain questions of fact. The trial judge conclusively found that the contractor alone controlled the work and ladder arrangements.

4. The duty could not be established by substituting a mere power to control for actual control. Nor did the client's failure to appoint a principal contractor under regulation 6 of the Construction (Design and Management) Regulations 1994 establish liability. Regulation 21 expressly excluded civil liability for breach of regulation 6.

5. The admitted breach of regulation 10, through the absence of a health and safety plan, did not create the control required by regulation 4(2). The two provisions address distinct aspects of site safety. The court reserved broader questions about the scope and effect of regulation 10.

6. The trial judge was entitled to find that the regulation 10 breach did not cause the accident. A plan need not necessarily prescribe obvious and elementary precautions concerning an unsecured ladder. Such a plan would have added nothing material to the employer's existing duties concerning safe workplaces, access, falls and ladder use.

7. The successful respondents received their costs. Refusal to mediate did not justify a costs sanction because the dispute offered no realistic room for compromise, although solicitors should answer a mediation proposal because silence may expose their client to a costs risk.

1. Court of Appeal: The claimant's appeal was dismissed unanimously. The costs consequences of the lower court's dismissal were maintained, and the successful respondents received their appeal costs.
2. Central London County Court: His Honour Judge Smith QC dismissed the personal injury claim against the first and second defendants. He upheld the claim against the claimant's employer, the third defendant, subject to a 25% reduction for contributory negligence.