Gray v Fire Alarm Fabrication Services Ltd & Ors

A main contractor may owe a subcontractor’s employee a common-law duty to coordinate and supervise safety where its contractual role, knowledge and arrangements make such supervision part of its responsibilities. An occupier ordinarily need not supervise a competent contractor, but special circumstances may arise where the occupier knows or ought to know that an unsafe system is being used. Causation in cases involving several potential wrongdoers is fact-sensitive; no universal test determines whether one or several faults caused the accident. An indemnity against loss resulting from the subcontractor’s breach does not ordinarily cover the indemnitee’s own negligence unless the contract clearly says so. Criminal health and safety convictions cannot be relied on to establish civil liability where the relevant legislation excludes a civil right of action.

Ian Gray, an employee of Fire Alarm Fabrication Services Ltd, died after falling through a skylight while installing a fire alarm cable at the Thistle Victoria Hotel. His widow brought proceedings in negligence and under the Fatal Accidents Act 1976. FAFS admitted liability and settled the claim.

FAFS then sought contributions under section 1 of the Civil Liability (Contribution) Act 1978 from E.H. Humphries (Norton) Ltd, the main electrical contractor, and Thistle Hotels Ltd, the owner and occupier. Humphries also relied on a contractual indemnity. The issues were whether Humphries and Thistle owed duties to Gray, whether the indemnity covered Humphries’ own negligence, whether health and safety convictions were admissible to establish civil liability, and what contribution was just and equitable.

1. Liability and causation. The accident resulted from an unsafe means of access. FAFS were primarily responsible, but causation was not confined to one party. Following the approach in Stapley v Gypsum Mines Ltd [1953] AC 663, as applied in Clay v AJ Crump & Sons Ltd [1964] QB 533 CA, whether several faults jointly caused an accident depends on the facts of each case.
2. Humphries. Humphries’ contractual role included substantial supervision, daily liaison and coordination of safety activities. Its actual knowledge that external roof work was contemplated, combined with the failure to require an adequate method statement or risk assessment, meant that it owed Gray a duty to take reasonable care. It should have forbidden the work or ensured that it could be carried out safely. Makepeace v Evans Brothers (Reading) (a firm) [2000] BLR 287 CA concerned different factual circumstances and did not prevent that conclusion.
3. Thistle. Ordinarily an occupier is not required to supervise a competent contractor. The exception identified in Ferguson v Welsh [1987] 1 WLR 1553 HL, followed in McCook v Lobo [2003] ICR 89 CA, applied because Thistle knew, or ought to have known, of the longstanding roof access and failed to make clear that access was prohibited without Railtrack’s permission. Thistle therefore contributed to the accident.
4. Indemnity. The contractual wording covered breaches by FAFS, not liability caused by Humphries’ own negligence or breach of statutory duty. Applying Canada Steamship Lines v The King [1952] AC 192, the absence of express words and the ambiguity in the clause defeated Humphries’ claim. The ambiguity was construed against Humphries, consistently with Smith v South Wales Switchgear [1978] 1 WLR 165.
5. Convictions and contribution. The convictions under the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999 could not be relied on to establish civil liability. It was just and equitable to attribute 50% of the blame to FAFS, 30% to Humphries and 20% to Thistle. Humphries and Thistle were ordered to contribute accordingly.

Not stated in the judgment. This was a first-instance decision of the High Court.