Kmiecic v Isaacs

A householder does not assume control of construction work merely by restricting contractors’ access to parts of the property. Control under the relevant safety regulations concerns the ability to direct how the work is carried out, not ordinary control over access as an occupier. A duty may arise only in materially different circumstances, such as where the householder plays an unusually large role in planning, managing or executing the work. The Provision and Use of Work Equipment Regulations 1998 contain an additional limitation requiring control to be exercised in connection with a trade, business or undertaking. A householder engaging a contractor is not ordinarily liable under those Regulations. There was also no negligence where the householder had no reason to know that the contractor was incompetent and no duty to investigate his insurance.

The claimant, a casual labourer, was injured when a short and unsuitable ladder toppled while he was carrying roofing materials at the defendant’s home. He claimed against the defendant as owner and occupier, alleging breaches of the Work at Height Regulations 2005, the Construction (Health, Safety and Welfare) Regulations 1996 and the Provision and Use of Work Equipment Regulations 1998, together with negligence.

The defendant refused access through her son’s bedroom but did not direct the method of carrying out the roofing work. The claimant’s employer insisted that the work proceed using the available ladder. The preliminary issue was whether the defendant had assumed sufficient control to owe statutory or common-law duties.

1. Claim dismissed. The claimant’s employer, rather than the defendant, was responsible for directing the unsafe system of work.

2. Under regulations 3(2) and 3(3)(b) of the Work at Height Regulations 2005, and regulation 4(2) of the Construction (Health, Safety and Welfare) Regulations 1996, the relevant question was factual control over the claimant or over the way in which the construction work was carried out. The principles identified in McCook v Lobo [2002] EWCA Civ 1760 were applied.

3. The defendant had controlled access to her property by refusing permission to use the bedroom window. That was an exercise of her rights as occupier, not control over the method of construction. She had no right to instruct the claimant how to work, and the evidence established that the employer directed the use of the ladder.

4. A householder does not become subject to the extensive duties in the 2005 and 1996 Regulations merely by imposing reasonable limits on contractors’ access. Liability might arise in materially different circumstances, such as unusually substantial involvement in planning, managing or executing the work.

5. Regulation 3(4) of the Provision and Use of Work Equipment Regulations 1998 restricted the relevant control to control exercised in connection with a trade, business or undertaking. In the defendant’s position as a householder, no duty arose under those Regulations. The observation in Jennings v The Forestry Commission [2008] EWCA Civ 581 was considered in that context.

6. The negligence claim also failed. There was no evidence that the defendant knew or ought to have known that the contractor was incompetent, uninsured or disreputable. A householder had no duty to enquire whether the contractor was insured.

Judgment was entered for the defendant.