Willis v Cross & Ors

Construction and safety regulations directed primarily to protecting people working on a construction site do not, on the construction of the provisions relied on, impose the relevant duties towards a member of the public using a nearby public right of way. Statutory provisions must be read in their regulatory context. References to protected persons, including no person in Regulation 5(3), concerned persons working on the site. A skip hirer was not liable in negligence for injury caused by unknown third parties placing, removing and discarding an item from the skip.

The claimant tripped over a length of pipe lying on steps alongside the Corn Exchange in Alnwick, over which there was a public right of way. Trustees and volunteers were undertaking demolition work inside the building and had hired a skip in an adjoining yard. The trial judge found that the pipe had not come from the demolition work, but had been put into the skip by an unknown person, removed by another person and discarded on the steps.

The claimant’s claim under the Occupier’s Liability Act was not pursued at trial. Her Honour Judge Moir dismissed the negligence claim, holding that liability should not be imposed on the skip hirers for the acts of third parties. The claimant accepted that conclusion but sought permission to appeal on alleged breaches of the Construction (Design and Management) Regulations 1994 and the Construction (Health, Safety and Welfare) Regulations 1996. The central issue was whether those regulations imposed relevant duties towards a member of the public using the nearby steps.

1. Application refused. The Court of Appeal refused permission to appeal. Lord Justice Longmore agreed with Lord Justice Tuckey’s judgment.
2. Regulation 16(1)(c) of the Construction (Design and Management) Regulations 1994 required the principal contractor to take reasonable steps to ensure that only authorised persons entered premises where construction work was being carried out. The defendants were not the principal contractor for that purpose. It was also doubtful whether construction work was being carried out at the skip’s location when the pipe was put into or removed from it.
3. The Construction (Health, Safety and Welfare) Regulations 1996 were primarily intended to protect people working on a construction site. Regulation 3(1) applied to construction work carried out by a person at work. Regulation 5 concerned safe places of work, and the reference to no person in Regulation 5(3), read in context, meant no person working on the site. The same reasoning applied to Regulations 6, 10 and 26. The claimant was using the steps as a member of the public and was not working on the site.
4. The court accepted the trial judge’s conclusion that the claim could succeed only under the Occupier’s Liability Act 1957 or in negligence. The negligence conclusion was accepted, and the statutory-duty arguments failed. There was no real prospect of the Court of Appeal disagreeing with the lower court’s conclusion on any aspect of the claim.

• Court of Appeal (Civil Division): On 1 September 2004, permission to appeal was refused under [2004] EWCA Civ 1197.
• Newcastle County Court: Her Honour Judge Moir dismissed the personal injury claim. The negligence claim failed because liability should not be imposed on skip hirers for the intervening acts of third parties.