R&B Plastering Limited v UK Insurance Limited

An appellate court should be slow to interfere with first-instance findings of fact, evaluations and inferences. Intervention requires an error such as a critical finding unsupported by evidence, or a demonstrable misunderstanding of, or failure to consider, relevant evidence.

In a contribution claim arising from an accident at work, a temporary covering may be reasonable while a group of workers is actively using an aperture, yet become an unsafe system of work once that activity has ended and a worker is left alone. The statutory right to contribution depends on liability for the same damage and a qualifying payment, not on every recoverable item being strictly characterised as damages. Rehabilitation expenditure may therefore be included in a just and equitable contribution.

R&B Plastering Limited sought a contribution from UK Insurance Limited, the insurer of Robert Norman Construction Ltd, after settling Brian Eckford’s personal injury claim. Eckford had fallen through an aperture created during building works.

HHJ Maloney KC found RNC and R&B jointly responsible for the unsafe system of work, assessed Eckford’s contributory negligence at 20%, and apportioned the remaining liability equally. He also allowed a contribution towards rehabilitation expenditure.

UK Insurance appealed on factual findings, breach of duty, apportionment and the recoverability of rehabilitation payments. The central issues were whether the judge had made an appealable error and whether such payments fell within the Civil Liability (Contribution) Act 1978.

1. Appeal dismissed. The appellate court found no error of principle, failure of logic, or demonstrable misunderstanding or omission in the trial judge’s reasoning.
2. The court applied the restrictive approach to appellate interference described in Fage UK Limited and another v Chabani Limited and another [2014] EWCA Civ 5, Henderson v Foxworth Investments Limited [2014] UKSC 41 and Farrar v Rylatt [2019] EWCA 1894. The judge had considered the evidence of Gary Buck, the photographs and the competing explanations. His conclusions were sustainable deductions from circumstantial evidence, not speculation.
3. The finding that the temporary covering was reasonably safe during the loading operation did not determine its later safety. Once loading was complete and Eckford was working alone, the unsecured covering and continuing aperture constituted a dangerous and unjustifiable potential trap. RNC’s failure to reinstate the floor, or prevent Eckford from working there until reinstatement, amounted to a breach of duty under the Occupiers Liability Act 1957 and in negligence.
4. The equal apportionment of responsibility between RNC and R&B, and the 20% reduction for contributory negligence, were evaluative judgments open to the trial judge. There was no basis for appellate interference.
5. Under sections 1 and 2 of the Civil Liability (Contribution) Act 1978, entitlement depends on liability for the same damage and a qualifying payment in settlement or compromise. The contribution is then assessed as just and equitable having regard to responsibility for the damage. It need not be calculated solely by reference to sums strictly described as damages. Rehabilitation expenditure could therefore properly be included. The reasoning in Hadley v Przybylo [2024] EWCA Civ 250, especially at [55]–[59], supported that conclusion.

• High Court (King’s Bench Division): Appeal against the order and judgment of HHJ Maloney KC, handed down on 12 July 2023. The appeal was dismissed in its entirety.