Jennings v The Forestry Commission

Health and safety duties imposed on an employer by the Provision and Use of Work Equipment Regulations 1998 extend to a non-employer only where that person has relevant factual control, and only to the extent of it. A contractor’s own assessment, equipment and control of the work may show that the client lacks such control. Contractual wording and earlier provision of equipment are not conclusive where the parties’ actual arrangement differs. A common-law assumption of responsibility also requires relevant assumption and reliance. The appeal was allowed and the claim dismissed.

The respondent, a self-employed fencing contractor, was injured when his adapted Land Rover rolled on a steep, wet field while carrying materials for fencing work undertaken for the Forestry Commission. The County Court held the Forestry Commission liable under the Provision and Use of Work Equipment Regulations 1998, as an employer under the Management of Health and Safety at Work Regulations 1999, and for breach of a duty arising from assumption of responsibility. Contributory negligence was assessed at 35 per cent. The Forestry Commission appealed, raising employment status, statutory control of work equipment, and assumption of responsibility.

Appeal allowed. The Court of Appeal directed that the respondent’s claim be dismissed.

1. Employment status. Whether a worker is an employee or an independent contractor depends on all the facts. Control is important but not decisive. The inquiry may extend to whose business is being carried on and the economic reality, including provision of equipment and helpers, financial risk, opportunity for profit and responsibility for safety. A detailed client specification and approval requirement were normal features of a contract for services. The respondent controlled how and when the work was done, supplied materials and equipment, bore financial risk and carried on his own business. He was therefore an independent contractor. The approach in Lane v The Shire Roofing Company (Oxford) Ltd [1995] PIQR 417, referring to Readymix Concrete and economic reality, supported that conclusion.
2. Statutory control. Under regulation 3(3)(b) of the Provision and Use of Work Equipment Regulations 1998, employer duties extend to a person with control over the equipment, the person using it, or the way it is used, but only to the extent of that control. The question is factual control. The parties’ conduct varied the original delivery provision so that the respondent decided whether to use his Land Rover for the lower part of the site and when alternative transport was required. The Forestry Commission consequently had neither contractual nor factual control over that use. The Regulations therefore did not apply. The reasoning accorded with McCook v Lobo [2002] EWCA Civ 1760 and Mason v East Potential Limited [2008] EWCA Civ 494, although Mason concerned different facts. Sir Paul Kennedy also noted, in passing, the householder limitation in regulation 3(4).
3. Assumption of responsibility. The prior dealings did not establish that the Forestry Commission had assumed responsibility for selecting the mode of transport. The respondent had made his own assessment and chosen to use his Land Rover. There was consequently no relevant assumption of responsibility or reliance. Mercer v South Eastern and Chatham Railway Companies’ Managing Committee [1922] 2 KB 549 was distinguishable as an occupier-liability case involving creation of a hidden danger, not a general assumption-of-responsibility principle.
4. Lord Justice May agreed with Richards LJ. Sir Paul Kennedy agreed with the reasons and stated that the appeal succeeded on all three grounds.

• Court of Appeal (Civil Division) — allowed the Forestry Commission’s appeal and directed that the claim be dismissed: [2008] EWCA Civ 581.
• Manchester County Court — Mr Recorder Rigby found the Forestry Commission liable under the Provision and Use of Work Equipment Regulations 1998, for employer duties, and for assumption of responsibility, subject to 35 per cent contributory negligence. The lower-court citation was not stated in the judgment.