Barr v Coventry & Solihull Waste Disposal Company Ltd

An employer’s non-delegable duty to take reasonable steps for an employee’s safety is assessed in context where the employee works at premises occupied by another. Relevant circumstances include the place and nature of the work, the employee’s experience, the employer’s control, and its actual or constructive knowledge of danger. An employer is not ordinarily required to inspect third-party premises in detail to discover a concealed defect where the work is under the occupier’s direction, the employee is experienced, and the employer reasonably relies on the apparent safety of the route. A breach must also have caused the loss.

The respondent, as occupier of a factory, settled the claimant’s personal injury claim after a manhole cover collapsed beneath a barrow carrying a heavy shaft. It brought Part 20 contribution proceedings against the claimant’s employer, alleging that the employer had also breached its common-law duty of care. His Honour Judge Oliver-Jones QC apportioned liability equally. The employer appealed, contending that it had no duty to discover the concealed defect and that any breach was not causative.

1. Appeal allowed. The Part 20 claim against the employer was dismissed, with costs here and below subject to detailed assessment if not agreed.

2. The employer’s duty was non-delegable, but whether it was breached depended on the circumstances. Those circumstances included the place where the work was undertaken, the nature of the premises and work, the employee’s experience, the degree of control reasonably available to the employer, and the employer’s knowledge, including matters of which it ought to have been aware. This approach was reflected in Cook v Square D Ltd and Others [1991] 1 PIQR 33.

3. The employer was not in breach. The claimant was a highly experienced rigger, the operation was carried out on the respondent’s premises for the respondent’s purposes and under its direction and control, and the employer had no control over the operation or knowledge of the defective cover. The route had been walked with the respondent’s qualified engineer, who would have regarded it as safe. A detailed inspection of the gangway and examination of the cover would have been unrealistic, and the employer was entitled to rely on the apparent safety of the route.

4. The claimant was suitably experienced to identify any ordinary risk assessment required, and his superiors could not reasonably have added anything. The concealed danger was not one which the employer ought to have known about in the circumstances.

5. Even if the employer had owed a duty requiring some further action, that duty did not extend to discovering this hidden danger. Any breach therefore would not have been causative.

6. The question of apportionment was unnecessary to decide. The court nevertheless stated that the case was plainly not one for equal apportionment; the respondent could at most have expected a contribution of about 20 or 25 per cent.

• Court of Appeal (Civil Division): allowed the employer’s appeal from the decision of His Honour Judge Oliver-Jones QC in the Derby County Court, substituting an order dismissing the respondent’s Part 20 claim.