Milstead v Wessex Roofline Ltd

An employer is liable where an employee fails to comply with mandatory ladder-safety requirements and that failure causes injury. A ladder exceeding three metres must be secured so far as practicable or continuously footed at its base. The employer cannot rely on the employee’s own default unless it proves that the relevant breach was caused solely by that employee, or that it had done all that could reasonably be expected to instruct and train its employees in the applicable safety requirements. The employer’s duty is non-delegable, and it is vicariously liable for a fellow employee’s causative default. A claim in negligence may add nothing where the same conduct constitutes breach of statutory duty.

The claimant, an experienced building worker, was injured when he fell from a ladder while working for the defendant. The ladder was more than three metres long. It had been secured during the work but was untied while the claimant was retrieving tools and packing up. The claimant alleged that he instructed a trainee employee to foot the ladder, but the trainee moved away and did not do so.

The claim was brought in negligence and, following amendment, breach of statutory duty. The court tried liability first. The central issues were whether the ladder-safety requirements applied, whether the trainee’s failure caused the fall, whether the employer could rely on the employee-default defence described in Boyle v Kodak, and whether the claimant was contributorily negligent.

1. Liability. The defendant was liable for breach of statutory duty and in negligence. The ladder exceeded three metres and, once untied, was both unsecured and unfooted. The court found that the trainee’s failure to foot it was the principal cause of the fall.
2. Statutory requirements. Section 6 and Schedule 5 of the Construction (Health Safety and Welfare) Regulations 1996 imposed a clear requirement that a ladder of that length be secured so far as practicable or have a person positioned at its foot to prevent slipping. The requirement allowed no alternative or exception on the facts. The trainee’s belief that footing was unnecessary where the ground was safe was inconsistent with the Regulations.
3. Employer-default defence. Applying the reasoning in Boyle v Kodak [1969] 1 WLR 661, an employer in breach had to show either that the only causative default was the injured employee’s own act or default, or that it had done all that could reasonably be expected to instruct and train employees in the relevant safety requirements. The defence failed. The claimant had instructed the trainee to foot the ladder. Even without that instruction, the trainee knew that the claimant was using an unsecured ladder and had not been adequately instructed in the strict requirements of Schedule 5.
4. Common-law liability. The employer’s duty to provide safe fellow employees and a safe system of work was non-delegable. The defendant was therefore vicariously liable for the trainee’s failure to comply with the instruction. The negligence claim added no substantive issue beyond the statutory breach.
5. Contributory negligence and order. The claimant had no reason to know that the trainee had left the foot of the ladder and was not contributorily negligent. Judgment was entered for the claimant on liability. Quantum was to be determined at a further hearing if not agreed.