McGarvey v Eve NCI Ltd & Anor

A main contractor or occupier has no general duty to ensure the safety of another contractor’s employees. Liability may arise where the circumstances show an assumption of responsibility. The question is fact-sensitive. Providing suitable equipment, which an experienced worker may misuse, is materially different from instructing a worker to use equipment that is unsuitable and unsafe for the work, however it is used. An instruction to use such equipment, particularly where the worker is expected to work alone, may constitute an assumption of responsibility.

The claimant was seriously injured when he fell from a ladder while working on a warehouse construction site. He was employed by the first defendant, which had been engaged as a specialist sub-contractor by the second defendant, an electrical contractor.

The Leeds County Court found the first defendant two-thirds responsible and the second defendant one-third responsible. The second defendant appealed, contending that it had assumed no responsibility for the claimant’s safety and that the case was governed by Makepeace v Evans Brothers (Reading) [2001] ICR 241. The central issue was whether the second defendant’s conduct amounted to an assumption of responsibility in the circumstances.

1. Appeal dismissed. The apportionment of responsibility was not challenged.
2. The general principle identified in Makepeace v Evans Brothers (Reading) [2001] ICR 241 was accepted: a main contractor or occupier is not generally under a duty to ensure the safety of another contractor’s employees unless there has been an assumption of responsibility. Whether responsibility was assumed depended on the facts.
3. The distinction drawn by the county court was valid. In Makepeace v Evans Brothers (Reading), an experienced painter had been provided with a suitable scaffold tower, and the responsibility for ensuring that the sub-contractor’s employees could use it safely rested with the sub-contractors. Here, the claimant was a young and inexperienced worker who was instructed to use a ladder that was unsuitable and unsafe for the work.
4. The evidence amply supported the findings that the ladder could not safely be used for the task, even if lashed or footed, because it could not be set at a safe angle, and that the appellant’s foreman knew the claimant would work alone.
5. Instructing the claimant to use the ladder in those circumstances constituted an assumption of responsibility for his safety. Providing equipment suitable for safe use, which is then misused, differs materially from providing equipment that is unsafe however it is used. The judge’s conclusion that the appellant was negligent could not be faulted.

• Court of Appeal (Civil Division): dismissed the second defendant’s appeal from the judgment of His Honour Judge Lightfoot in Leeds County Court dated 9 April 2001.