Ceva Logistics Ltd v Lynch & Anor

A person controlling a workplace owes duties under regulations 4(2) and 17 of the Workplace (Health, Safety and Welfare) Regulations 1992 in relation to matters within that person’s factual control. That duty can extend to employees of independent contractors. It includes organising the workplace so that pedestrians and vehicles circulate safely, even though the contractor retains control over the technical method of performing the work. The workplace controller may also owe a concurrent common-law duty of care. An appellate court will rarely interfere with an apportionment of responsibility where the trial judge considered the relevant factors and made no error of principle.

An electrician employed by an independent electrical contractor was injured by a reach truck while working in a warehouse owned and operated by the first defendant. The first defendant controlled the warehouse and had not properly instructed the contractor’s employees about pedestrian access to very narrow aisles.

At trial before His Honour Judge Owen QC, the first defendant was held liable for breach of statutory duty under regulations 4 and 17 of the Workplace (Health, Safety and Welfare) Regulations 1992. The second defendant was held liable in negligence as the claimant’s employer. Responsibility was apportioned 60% to the first defendant and 40% to the second, with a 25% reduction for contributory negligence. The first defendant appealed on liability and apportionment. The respondents supported the judgment and relied additionally on a common-law duty of care.

1. Appeal dismissed. The first defendant owed the claimant a statutory duty under regulations 4(2) and 17 of the Workplace (Health, Safety and Welfare) Regulations 1992. Regulation 4(2)(c) turns on factual control over the relevant matter, not merely on contractual authority to direct how the contractor performs its specialist work.

2. The first defendant controlled the warehouse and could make and enforce safety rules governing everyone who entered it. That control included the movement of pedestrians and vehicles. It therefore had responsibility for ensuring their safe separation, although the second defendant remained responsible for instructing the claimant about the technical performance of electrical work and precautions against electrocution.

3. King v RCO Support Services Limited [2001] ICR 608 was distinguishable. It concerned a matter within the outside contractor’s specialist sphere: the gritting operation. It did not relieve a workplace controller of responsibility for matters, such as traffic movements, within its own control.

4. McCook v Lobo [2002] EWCA Civ 1760 confirmed that the relevant control is a question of fact. The first defendant’s control over the warehouse and its ability to regulate movement meant that regulation 17 applied to the claimant.

5. The first defendant also owed a concurrent common-law duty of care. It was responsible for coordinating the activities and movements of people in the warehouse and breached that duty by failing to provide the claimant with the necessary safety instructions. The second defendant’s status as a reputable contractor did not absolve the first defendant.

6. The apportionment of responsibility was upheld. The trial judge had considered the relevant factors and no error of principle was shown. The claimant was to recover damages subject to a 25% reduction for contributory negligence, payable 60% by the first defendant and 40% by the second defendant.

• Court of Appeal (Civil Division): The appeal from the decision of His Honour Judge Owen QC in the Queen’s Bench Division, Birmingham District Registry, was dismissed. The findings of liability and the apportionment of responsibility stood.