Humpheryes v Nedcon UK Ltd & Anor

Persons who control the way construction work is carried out may owe concurrent duties to provide a safe workplace, safe access and egress, and safe pedestrian routes. Subcontracting does not necessarily remove those duties. The relevant question is whether each defendant retained a sufficient degree of control over the work. A reasonably practicable safety measure, such as barriers, warning signs or tape around floor hazards, may be required. Failure to provide such measures can constitute both breach of the applicable construction regulations and negligence. Liability may be apportioned between defendants according to their respective responsibility.

The claimant, a self-employed steel erector, was injured after tripping over floor studs installed during the construction of a warehouse. He brought claims in negligence and under regulations 4(2), 5 and 15 of the Construction (Health, Safety and Welfare) Regulations 1996 against Nedcon UK Ltd, which had subcontracted installation work to Storage Engineering Services Ltd.

The central issues were whether either or both defendants controlled the relevant construction work, whether they had failed to provide a safe system of work, and whether the claimant was contributorily negligent. The court also assessed the claimant’s injuries and consequential losses.

1. Liability. Both defendants were liable. The court found that the exposed studs near the access door created a clear tripping hazard and that barriers, warning signs or tape were reasonably practicable safety measures.

2. Control under regulation 4(2). The duty under regulation 4(2) applies to every person who controls the way construction work is carried out, insofar as the relevant matters are within that person’s control. Nedcon retained control through its site representative, who plotted the stud positions, dealt with subcontractors and had authority to give instructions. SES also retained sufficient control as the professional installer, despite being subject to Nedcon’s instructions.

3. Regulations 5 and 15. Regulation 5 required a safe place of work and safe means of access and egress. Regulation 15 required suitable pedestrian traffic routes and safe movement around the site. Both defendants failed to discharge those duties.

4. Negligence and contributory negligence. The same failures amounted to negligence. The claimant was not contributorily negligent: he had no reason to expect the studs, they were close to the doorway, and he was not required to keep his eyes fixed on the floor.

5. Apportionment and damages. Nedcon’s responsibility was substantially greater. Liability was apportioned two-thirds to Nedcon and one-third to SES. The court awarded £14,000 general damages, £131,165.08 for past loss of earnings, £12,002 for pension loss, and allowances for past and future care and assistance, with future loss of earnings assessed using a multiplicand of £32,453 and a multiplier of 4.11.