Tafa v Matsim Properties Ltd & Ors

A person who controls construction work, or controls a person carrying out work at height, may owe statutory duties to protect workers even without being their employer. Control is a question of factual control over the work or the person, assessed by reference to the particular regulatory requirement. Retained control is not lost merely because responsibility is delegated to an agent. A site owner or project controller may also owe a concurrent common law duty of care where foreseeability, proximity and fairness are established. A worker’s contributory negligence must be assessed against the defendants’ relative blameworthiness and causal potency, with caution where the statutory duties were intended to protect against the very risk relied upon.

The claimant suffered paraplegic injuries after falling through a fragile suspended ceiling while constructing a walkway in a roof void during refurbishment works at a fertility clinic. The claim against the property-owning company was discontinued. The issues concerned the liability of the clinic company and its director under common law negligence and the Construction (Health and Safety and Welfare) Regulations 1996, the Work at Height Regulations 2005 and the Construction (Design and Management) Regulations 1994.

The court considered whether the defendants controlled the work or the persons carrying it out, whether the claimant was their employee, whether the director had assumed personal responsibility or acted as a joint tortfeasor, and whether the claimant was contributorily negligent.

1. Liability. Judgment was entered for the claimant against the second and third defendants for 90% of damages, subject to assessment. The claimant was found 10% contributorily negligent.
2. Statutory control. Under regulation 4(2) of the Construction (Health and Safety and Welfare) Regulations 1996, control means factual control over the way construction work is carried out, not merely general occupation or control of the site. Under regulation 3(3)(b) of the Work at Height Regulations 2005, the relevant question is factual control over the person carrying out the work, to the extent of that control. More than one person may have control at the same time.
3. The third defendant retained sufficient control over the contractor, the claimant and access to the roof void. The second defendant exercised that control on the company’s behalf and retained personal control and responsibility for health and safety. Delegation to an unremunerated husband or an incompetent contractor did not divest either defendant of control.
4. The duties under section 47(2) of the Health and Safety at Work etc. Act 1974 were actionable by a worker within the class protected by the regulations, regardless of whether he was employed by the particular defendant. The defendants were liable for causative breaches of regulation 28(1) and regulations 5(1)–(3) of the Construction Regulations, and regulations 4(1) and 5 of the Work at Height Regulations.
5. The third defendant owed a concurrent common law duty of care, and the second defendant owed a personal duty based on her retained control and voluntary assumption of overall responsibility. Alternatively, she was liable as a joint tortfeasor because she procured and authorised the company’s breaches.
6. No liability arose under regulation 10 of the CDM Regulations because any breach was not causative of the accident. The claimant’s lack of training and his awareness of the danger justified a modest reduction only. The court applied the caution in Toole v Bolton MBC concerning contributory negligence where statutory health and safety duties protect against the relevant risk.