Kmiecic v Isaacs

EU-derived health and safety regulations must, so far as possible, be construed compatibly with the relevant directives. That obligation does not require duties to be imposed on every household occupier who arranges repair work. Under the Construction (Health, Safety and Welfare) Regulations 1996, control of the way construction work is carried out is distinct from general control of premises or access. Access control alone does not create the statutory duty. Under the Work at Height Regulations 2005, responsibility depends on work being carried out by a person under the relevant person’s control, to the extent of that control. A householder who restricts access through the home does not thereby control the workers or the construction work.

Mr Kmiecic, a casual labourer, suffered serious injuries when an inadequate ladder toppled while he carried roofing material at Mrs Isaacs’s home. His employer was uninsured, so he sued Mrs Isaacs as occupier. Swift J dismissed the claim in [2010] EWHC 381 QB.

The appeal concerned whether the Construction (Health, Safety and Welfare) Regulations 1996 and the Work at Height Regulations 2005 imposed duties on Mrs Isaacs because she refused access to the garage roof through her son’s bedroom window. The central issue was whether restricting access amounted to control of the construction work or of the workers to the statutory extent.

The Court of Appeal unanimously dismissed the appeal. Moses LJ gave the leading judgment, with which Carnwath LJ and Maurice Kay LJ agreed.

1. The court accepted that domestic regulations implementing European Union obligations must, so far as possible, be construed in conformity with the relevant directives. That principle did not justify extending the regulations beyond what the directives required.
2. Under regulation 4 of the Construction (Health, Safety and Welfare) Regulations 1996, employers have the primary duty. Regulation 4(2) extends obligations to a non-employer only where that person controls the way in which construction work is carried out, and only so far as matters are within that control. The court followed the distinction drawn in McCook v Lobo & Ors [2002] EWCA Civ 1760, also reported at [2003] ICR 89.
3. Control over construction work may include responsibility for access and egress. However, control over access exercised by an occupier in the exercise of ordinary rights over the home does not itself amount to control over the construction work. The question whether the necessary level of control exists is fact-sensitive.
4. The same reasoning applied under regulation 3(3) of the Work at Height Regulations 2005. The workers were not under Mrs Isaacs’s control merely because she prohibited access through the bedroom window. Neither the Framework Directive nor the work-at-height implementing directive required duties to be imposed on a householder in those circumstances.

The common-law principle remained unaffected: an occupier who controls access to premises does not thereby assume regulatory duties to ensure the safety of workmen under either set of regulations. Appeal dismissed.

1. Court of Appeal (Civil Division): on appeal by permission granted by Smith LJ, the court dismissed the appeal in [2011] EWCA Civ 451.
2. High Court, Queen’s Bench Division: Swift J dismissed the claim in [2010] EWHC 381 QB.