PAUL CHADWICK v RH OVENDEN LIMITED & Anor

An employer must take reasonable steps to provide a reasonably safe workplace and system of work, protecting employees so far as reasonably practicable from reasonably foreseeable harm. A suitable safety or risk assessment may be logically anterior to deciding what precautions are required. The duty is fact-sensitive and may require competent specialist inspection before hazardous work begins.

A person with control over a workplace may owe an independent common-law duty of care, even where another person also has control or is the employer. Repeal of statutory actionability does not remove the underlying health and safety duties, but breach of those duties does not automatically establish negligence. An employee’s conduct will rarely amount to contributory negligence where the employer failed to provide safe premises, training, instructions or supervision.

The claimant was seriously injured while dismantling an aircraft at Manston Airfield. An angle grinder cut into an oxygen cylinder concealed behind a panel, causing an explosion.

He claimed in negligence against the first defendant, which held the principal contract for dismantling the aircraft and retained control over the project, and against the second defendant, who supervised the work and was alleged to be his employer. The defendants denied control, employment, foreseeability and causation. The trial concerned liability only; quantum was to be determined separately.

1. Outcome. Both defendants were liable in negligence. The claim would proceed to a further trial on quantum.
2. The claimant was an employee of the second defendant. Employment status was a factual assessment. Relevant factors included control over tasks and hours, provision of tools, payment at a fixed rate, lack of profit-sharing, mutual expectations of continuing work, supervision and the absence of a right of substitution. The cumulative evidence established a contract of employment.
3. The second defendant owed the common-law employer’s duty to take reasonable steps to provide a reasonably safe place and system of work and to protect the claimant, so far as reasonably practicable, from reasonably foreseeable harm. A competent aviation-engineering inspection should have been carried out before dismantling began. The absence of such an inspection caused the concealed oxygen cylinder to remain unidentified.
4. The risk of dangerous substances, gas cylinders and oxygen on an aircraft being dismantled was reasonably foreseeable. The precise location of the cylinder did not need to be foreseeable. The second defendant’s failures in inspection, training, safe instruction and supervision constituted breaches causing the injury.
5. The first defendant retained significant control under the dismantling contract, including responsibility for risk assessment, the method statement, safety inspection, permits, insurance and overall control of the work. Control under section 4 of the Health and Safety at Work etc Act 1974 could be shared. The first defendant therefore owed an independent common-law duty to take reasonable steps to prevent reasonably foreseeable harm and breached it by failing to conduct or ensure a proper inspection.
6. Section 69 of the Enterprise and Regulatory Reform Act 2013 removed the automatic civil actionability of breaches of health and safety regulations, but did not repeal the underlying statutory duties or alter common-law negligence. A breach of regulation did not automatically constitute negligence.
7. The claimant was not contributorily negligent and had not broken the chain of causation. He was an inexperienced employee using an inadequate tool, without training, supervision or warning of the danger. The defendants could not transfer responsibility to him for failures in workplace safety.

There was no application to apportion liability between the defendants. Directions were given for a quantum hearing and written costs submissions.