Biddick (Deceased) , Representatives of the Estate of v Morcom

A defendant who voluntarily undertakes a limited safety task during another person’s work may owe a duty of care in respect of that task. In personal injury cases, the claimant’s lack of reliance on the undertaking does not by itself negate proximity or duty. A claimant’s informed acceptance of a separate obvious risk does not extinguish that distinct duty. Appellate courts should respect trial judges’ factual findings and apportionments where the conclusions are open on the evidence and soundly reasoned.

Mr Mark Morcom was injured while fixing insulation to a loft hatch at the home of the late Mr Cyril Biddick. He claimed damages for breach of statutory duty under the Work at Height Regulations 2005 and negligence. His Honour Judge Denyer QC rejected the statutory-duty claim but found common-law negligence, awarding one third of the damages and attributing two-thirds responsibility to Mr Morcom for contributory negligence. The estate appealed against primary liability. Mr Morcom cross-appealed against the apportionment. The central issues were whether Mr Biddick’s voluntary involvement in securing the hatch created a duty of care and whether the apportionment was excessive.

Appeal and cross-appeal dismissed. The judgment of Lord Justice McCombe was agreed by Lord Justice Vos and Lady Justice Arden.

1. Cause of the accident. The trial judge was entitled to find that the hatch latch was only partially engaged when it opened. The evidence, taken as a whole, supported that inference, and the finding was within the reasonable range open to the judge.
2. Duty of care. Mr Biddick voluntarily undertook to keep the hatch latch closed while Mr Morcom worked. That undertaking placed him in sufficient proximity to Mr Morcom and created a foreseeable risk of injury if the task was neglected. It was therefore fair and reasonable to impose a duty to perform the task carefully.
3. Reliance and obvious risk. The court distinguished the reasoning in Tomlinson v Congleton BC [2004] 1 AC 46, because the occupiers there had not participated in the claimant’s activity. The absence of reliance did not negate the duty. The economic-loss authorities relied on by the estate did not require a different result in a personal-injury case. Watson v British Boxing Board of Control [2001] QB 1134, Wattleworth v Goodwood Road Racing Co. Ltd. [2004] PIQR P25 and Perrett v Collins [1998] Ll. R. 255 supported the conclusion that specific reliance was not essential. Mr Morcom’s knowledge that the hatch could not support his weight created a separate risk and did not remove Mr Biddick’s distinct duty.
4. Contributory negligence. Mr Morcom was an experienced tradesman who knew the danger, had relevant training and adopted an inherently unsafe working method. The finding that he was principally responsible, with liability apportioned two-thirds to him and one-third to the estate, was sound and unassailable.

1. Court of Appeal (Civil Division) — In [2014] EWCA Civ 182, the court dismissed the estate’s appeal against primary liability and Mr Morcom’s cross-appeal against the apportionment.
2. High Court (Bristol District Registry) — His Honour Judge Denyer QC, sitting as a judge of the High Court, rejected the statutory-duty claim, found common-law negligence, and awarded one third of the damages, attributing two-thirds responsibility to Mr Morcom.