Chinery v Engineering With Excellence Ltd & Ors

A contractor’s or subcontractor’s responsibility to warn of danger on a construction site depends on all the relevant circumstances. A subcontractor who performs the work instructed, without control over the subsequent use of the premises or the system of work, will not necessarily owe a duty to make the place safe for later operations. Where the controlling contractor knows the work’s limitations, retains control of access and approves the completed work, responsibility for subsequent safety may lie with that contractor. The court will not disturb a trial judge’s apportionment of liability absent a material error.

The claimant suffered paraplegia after falling through a lightweight cap fitted to a redundant ventilation duct. He brought proceedings against his employer, Engineering With Excellence Ltd, the mechanical-services subcontractor, Balfour Kilpatrick Ltd, and the ductwork sub-subcontractor, Zeldatree Ltd.

Liability to the claimant had been agreed, leaving contribution and apportionment between the defendants for determination by Harry Wolton QC, sitting as a Deputy High Court Judge. He apportioned responsibility 70 per cent to the employer and 30 per cent to Balfour Kilpatrick, and exonerated Zeldatree. The employer appealed, arguing that Zeldatree should also bear responsibility because it designed and fitted the cap. The central issue was whether Zeldatree owed the claimant a duty to warn or take further steps to prevent the capped duct being used as a foothold.

1. Appeal dismissed. The court upheld the Deputy Judge’s conclusion that Zeldatree was not liable to the claimant. The third defendants’ costs were payable by the first defendant; the second defendant was to bear its own costs.
2. May LJ stated that the extent of a contractor’s or subcontractor’s responsibility to warn of dangers on a construction site depends on all the relevant circumstances. The principle in Plant Construction v Adams & others [2000] BLR 137 concerned an obviously dangerous temporary support system and a contractor who appreciated the danger. Its facts were materially different from the present case, which concerned liability in tort rather than contractual performance.
3. Zeldatree had been instructed to provide a dust cap. It supplied a cap of the agreed type and appropriate strength for that purpose. Although its designer might generally have foreseen that someone could stand on the capped duct, Zeldatree had no responsibility for the subsequent activities in the room, their supervision, access to the room, or the further steps needed before lagging work began.
4. Balfour Kilpatrick controlled the room and its access. Its project manager knew that the cap was not load-bearing, knew that the claimant’s employers would work there, and had the completed work inspected and approved. Responsibility for ensuring that the room and capped duct were safe for the laggers therefore lay with Balfour Kilpatrick, together with the claimant’s employer.
5. Judge LJ agreed that the critical facts provided no basis for interfering with the Deputy Judge’s findings. Peter Gibson LJ agreed with both judgments.

• Court of Appeal (Civil Division) [2002] EWCA Civ 608: dismissed the first defendant’s appeal and upheld the Deputy High Court Judge’s apportionment and exoneration of Zeldatree.
• Queen’s Bench Division: Harry Wolton QC, sitting as a Deputy High Court Judge, determined contribution following an agreed settlement and apportioned liability 70 per cent to the first defendant, 30 per cent to the second defendant, and nil to the third defendant.