Andrew Carr v Brands Transport Limited

An employer’s common-law duty to provide a safe place, system and equipment for work remains informed by health and safety regulations, although breach of those regulations is not independently actionable after statutory amendments. The duty is personal and non-delegable, including where safety functions are entrusted to an independent contractor. A sole director may also be an employee, and that status does not remove the employer’s duty. The Brumder defence requires the claimant to be the sole author of the breach; it does not apply where the employer is independently at fault. Vicarious liability does not ordinarily extend to a genuinely independent contractor carrying on a business of his own. Contributory negligence is apportioned by considering both causative potency and blameworthiness.

The claimant, Brands Transport Limited’s sole director and majority shareholder, suffered catastrophic injuries when a corroded guard-rail pillar on a car transporter failed while he was loading a vehicle at height. Brands owned the transporter. It had engaged David Sippitts as an external transport manager, and Trax (Coventry) Limited to undertake periodic roadworthiness inspections.

The claimant pursued Brands in negligence and under section 1 of the Employers’ Liability (Defective Equipment) Act 1969. Brands denied liability and claimed a contribution from Trax. The issues included the claimant’s employment status, the scope of Brands’ duty, the effect of the Brumder principle, the status of the external transport manager, statutory liability for defective equipment, contributory negligence and Trax’s contractual inspection obligations.

1. Judgment for the claimant. Brands was liable, and its claim against Trax was dismissed.
2. The claimant was an employee notwithstanding that he was Brands’ sole director and majority shareholder. The evidence included PAYE taxation, employee National Insurance, employee insurance, salary arrangements and an employment contract. A company and its director are distinct legal persons and a director may also be an employee, applying Lee v Lee’s Air Farming Ltd.
3. Brands owed the claimant a common-law duty to take reasonable care to provide a safe place and system of work and safe equipment. The Lifting Operations and Lifting Equipment Regulations 2008, the Provision and Use of Work Equipment Regulations 2008 and the Working at Height Regulations 2005 informed the content of that duty, although breach of the regulations was not itself actionable following section 69 of the Enterprise and Regulatory Reform Act 2013.
4. The duty included ensuring suitable planning and supervision, timely LOLER examination, adequate strength and maintenance of guard rails, and inspection at suitable intervals. A timely LOLER inspection would probably have identified the corrosion and prevented the accident.
5. The employer’s duty to provide a safe system of work was personal and non-delegable. Applying Woodland v Swimming Teachers Association and the employer cases, Brands remained responsible for the negligent performance of the transport-manager function by Sippitts, although Sippitts was an independent contractor. Sippitts negligently failed to place the LOLER inspection date on the maintenance planner and failed to obtain and use the manufacturer’s safety guidance.
6. The Brumder defence did not apply. That defence is narrowly available where the claimant is the sole author of the breach and the employer is not independently at fault. Here, the claimant was partly at fault, but Sippitts’ negligence was an independent and causative fault for which Brands was responsible. The claimant’s conscientious approach was materially different from the total abrogation of responsibility in Brumder.
7. Sippitts was not in a relationship akin to employment. He operated an independent business, had several clients, invoiced Brands, controlled his time and methods, and was not subject to Brands’ control. Brands was therefore not vicariously liable on that alternative basis.
8. The claim under section 1 of the Employers’ Liability (Defective Equipment) Act 1969 also succeeded. The claimant was an employee injured in the course of employment by defective equipment provided by Brands, and the defect was partly attributable to the fault of Sippitts, a third party.
9. The claimant was 40 per cent responsible for failing to ensure that the LOLER inspection was carried out. Damages were reduced accordingly. Brands’ contribution claim against Trax failed because Trax’s agreement covered roadworthiness inspections from ground level, not LOLER inspection of the upper deck safety rails, and there was no reliance on Trax’s inspection documents.