Moon v Garrett & Ors

Under section 2(2) of the Occupiers’ Liability Act 1957, reasonable care is assessed against the danger and all the circumstances. The relevant foreseeability question is not whether the precise initiating event was predictable. It is whether a delivery worker near a deep excavation might slip and, if so, fall into it. An extreme danger heightens the obligation to guard against unusual accidents with grave consequences. For extensive building works, the Construction (Health, Safety and Welfare) Regulations 1996 may protect persons whose activities arise out of or connect with construction work, including a delivery driver; that construction was expressly obiter. Costs orders requiring one defendant to pay another’s costs remain discretionary. Alternative claims, connected causes, reasonable joinder, blame between defendants and potential injustice are relevant, but no factor is conclusive.

Michael Moon, a delivery driver, was injured while unloading concrete blocks at Paul James Garrett’s home. Blocks fell, causing him to step backwards, lose his footing and roll into an unguarded excavation. The Bristol County Court, in a judgment dated 6 December 2005 in claim BS204043, found Garrett liable under the Occupiers’ Liability Act 1957, dismissed the claim against Moon’s employers, and ordered Garrett to pay their costs.

Garrett appealed on liability and costs. Moon’s respondent’s notice relied alternatively on the 1996 Regulations. The central issues were whether the accident fell within the occupier’s reasonable-care duty, whether the Regulations protected Moon, and whether a Sanderson costs order was properly made.

Lord Justice Waller gave the judgment, with Lord Justice Jacob and Sir Peter Gibson agreeing. The court unanimously dismissed Garrett’s appeal and upheld both the liability finding and the order requiring him to pay the employers’ costs.

1. Occupiers’ liability. Section 2(2) of the Occupiers’ Liability Act 1957 required reasonable care in all the circumstances to ensure that Moon was reasonably safe for the purpose for which he was invited onto the premises. The relevant question was whether a delivery worker near a deep excavation might slip and, if so, fall into it. It was unnecessary to foresee the precise event which caused the blocks to fall. The extreme danger of the pit increased the obligation to guard against unusual accidents capable of causing serious injury. The trial judge had assessed the witnesses and the danger and was best placed to determine the reasonable standard of care.
2. Standard of care. The court noted the distinction between minor DIY work, where the reasonably competent amateur standard may apply, and highly specialised work, where professional standards may be relevant. That general observation was not necessary to dispose of the appeal.
3. 1996 Regulations. Waller LJ held, expressly obiter, that a person at work could include someone carrying out activity arising out of or connected with construction work. A delivery driver bringing ordered building materials to a construction site for unloading in a specified place could therefore fall within the protective scope of the Regulations. The reference in regulation 6(3) to any person liable to fall two metres or more supported that construction. Since a fall by Moon was reasonably foreseeable, Waller LJ would also have found Garrett liable under the Regulations if the issue had arisen.
4. Costs. The court gratefully adopted the considerations stated in Irvine v Commissioner of the Police for the Metropolis [2005] EWCA Civ 129. There were no hard-and-fast rules governing Bullock or Sanderson orders. The court could consider whether claims were alternative, whether causes of action were connected, whether it was reasonable to join and pursue the unsuccessful defendant, whether one defendant blamed another, and the potential injustice of the order. Non-alternative claims did not remove the power to make the order. The judge had exercised his discretion on a proper basis, and it was reasonable for Moon to join the employers in light of Garrett’s correspondence and the absence of frivolity in the allegations against them.

• Court of Appeal (Civil Division): In [2006] EWCA Civ 1121, dismissed Garrett’s appeal and upheld the liability and costs orders. The alternative Regulations argument was addressed as obiter.
• Bristol County Court: His Honour Judge Lambert found Garrett liable, dismissed the claims against the employers, and ordered Garrett to pay Moon’s and the employers’ costs.