EH Humphries (Norton) Ltd. Thistle Hotels Plc v Fire Alarm Fabrication Services Ltd.

A main contractor or building occupier may exceptionally owe a common-law duty of care to an employee of a subcontractor. The question is fact-sensitive, and no single test should be formulated. Contractual powers of supervision and safety co-ordination may be relevant.

However, liability depends on the scope of any duty, breach, and causation in the particular circumstances. A contractor was not in breach where it did not know that a subcontractor had unilaterally selected an external and hazardous method of work. A building occupier’s undisclosed knowledge of a permit-to-work system likewise did not establish liability where it had no notice that the work requiring access would occur.

Ian Gray, an employee of Fire Alarm Fabrication Services Ltd, died after falling through a roof skylight while installing fire-alarm cabling at a hotel. His widow’s claims under the Fatal Accidents Act 1976 and for negligence were settled against his employer. The employer then sought contribution from the electrical main contractor, E H Humphries (Norton) Ltd, and the hotel occupier, Thistle Hotels plc.

On 3 March 2006, a deputy High Court judge found both appellants negligent and apportioned responsibility at 30% to Humphries and 20% to Thistle. The appeals concerned whether either appellant owed and breached a duty to Mr Gray, causation, the effect of an indemnity clause, and apportionment. The decisive issue was whether either appellant was responsible for the subcontractor’s unilateral decision to use the external cable route without reporting back.

1. Appeals allowed unanimously. The Court set aside the contribution orders against Humphries and Thistle and dismissed Fire Alarm Fabrication Services Ltd’s Part 20 claims.

2. Gage LJ, with whom Hallett LJ agreed, held that a main contractor can in appropriate circumstances owe a duty of care to a subcontractor’s employee. The issue is one of mixed fact and law, to be assessed on the particular circumstances rather than by a specific test. Humphries’ contractual right to supervise work and co-ordinate safety was capable of creating a duty. The Construction (Design and Management) Regulations 1994 were irrelevant to that common-law conclusion.

3. The trial judge’s critical factual finding could not stand. The parties had agreed only that the three cable routes would be investigated and then reported back for agreement. Fire Alarm Fabrication Services Ltd did not report back. Mr Gray and a colleague instead selected the external route shortly before the accident without informing Humphries or Thistle.

4. Accordingly, Humphries was not in breach. It could not reasonably be criticised for failing to demand a method statement or risk assessment for external roof work when it had not been told that that method had been selected. Although its manager dealt inadequately with the generic risk assessments received, those documents did not indicate use of the external route. That failing was not causative of the accident.

5. Thistle’s knowledge of Railtrack’s permit-to-work system did not make its earlier non-disclosure a breach of duty. Thistle had no notice before the accident that the external route had been chosen. Gage LJ did not finally decide whether that knowledge could itself create a duty to the subcontractor’s employee, but considered that the “special circumstances” and extra-hazardous formulations drawn from 1987 1 WLR 1553 and [2004] PIQR 276 were not apt.

6. As an unnecessary alternative ruling, the indemnity clause did not require Fire Alarm Fabrication Services Ltd to indemnify Humphries against Humphries’ independent liability for its own negligence. May LJ agreed with that analysis. May LJ also explained in a concurring judgment that duty, breach, and causation must be considered together by asking whether the duty’s scope embraced the damage suffered.

• Court of Appeal (Civil Division) — allowed both appeals and dismissed the contribution claims: [2006] EWCA Civ 1496.
• High Court of Justice, Queen’s Bench Division — on 3 March 2006, His Honour Judge Marr-Johnson, sitting as a deputy High Court judge, found Humphries and Thistle negligent and ordered them to contribute 30% and 20% respectively. No citation was stated in the judgment.