Moon v Garrett & Ors

The appellant (Mr Garrett) was doing some building works at his home in October 2001. The respondent (Mr Moon) was employed as a delivery driver by C H Kendal and Sons and on 10^th October 2001 was delivering three and a half pallets of heavy concrete blocks to Mr Garrett. In the course of unloading the blocks, certain blocks became unstable and fell off the lorry. The fall caused Mr Moon to lose his balance and he rolled into a pit and suffered serious back injury. He brought his claim against Mr Garrett and against his employers, C H Kendal and Sons, joining also their successors in title, Travis Perkins plc (to both of whom I shall simply refer hereafter as “the employers”).

His Honour Judge Lambert, by a judgment delivered on 6^th December 2005, found Mr Garrett liable but dismissed the claim against Mr Moon’s employers. He ruled on the same day that Mr Garrett should pay the costs of not only Mr Moon but the defendants, against whom Mr Moon’s claim had been dismissed.

Mr Garrett appeals the judge’s decision on liability and, if unsuccessful in that, the judge’s decision on costs. The judge’s decision on liability was based on the Occupiers’ Liability Act 1957, the judge declining to hold that the Construction (Health, Safety and Welfare) Regulations 1996 imposed any duty on Mr Garrett vis à vis Mr Moon. Mr Moon, by a respondent’s notice, seeks to uphold the judge’s decision on liability on the alternative ground that the 1996 Regulations do apply so as to impose a duty on Mr Garrett vis à vis Mr Moon.

Mr Garrett was carrying out buildings works at his property during the course of which he was exposing an “undercroft” by emptying it of rubble. He had, by 10^th October 2001, created a pit or excavation. His intention was to lay concrete beams across the top of the pit in order to create a floor for a garage that he was then going to build. The pit was to be open and exposed for a period of about a week and a half. The pit was found by the judge to be just over two metres deep.

Mr Moon had already delivered one load of blocks to Mr Garrett’s house on 10^th October 2001. When he made the first delivery there was no netting around the pit. By the time he came to make the second delivery there had been placed round the pit an orange netting attached to metal poles. The judge had and we also have photographs of that netting as it was after the accident.

On this second occasion Mr Moon unloaded two of the pallets of blocks then turned the lorry around to face the other way so that he could then unload the other pallet and a half. He parked the lorry on a track running through Mr Garrett’s property. That track, according to the plan with our papers, passed at an angle to the pit. The unloading appears to have taken place on the edge of the track nearest to one corner of the pit. There was some dispute even before us as to precisely how far the edge of the track was from the edge of the pit, estimates ranging between ten and six feet. I am doubtful whether anything turns on the difference. There was a slope between the edge of the track and the pit. Again, there was some dispute as to precisely where the slope started and precisely where it finished. On any view the ground was made up ground. As a plan shows, the original ground had a significant slope, which would have meant that anyone rolling down the same would have been prevented from rolling into the pit by its wall. But, as at 10^th October, earth had been piled against the wall, leaving only some nine inches of the wall round the pit.

As Mr Moon attempted to unload the blocks, for reasons which no-one was able to explain, the blocks started to fall towards Mr Moon. The sight of the falling blocks caused Mr Moon to step back with a degree of urgency. He somehow lost his footing, catching his heel. He fell to the ground and then rolled sideways down the slope into the orange netting and over the wall that formed the sides of the pit. He fell into the pit and seriously injured his back. It would seem, looking at the photographs, and accepting the submission of Miss Plowden, who appeared on the appeal for Mr Moon, that the effect of the orange netting was, if anything, to provide a means to facilitate the rolling body over the nine inches of wall. The orange netting on any view formed no barrier to prevent a body rolling into the pit.

The critical issue for the judge, once he had dismissed the claims against Mr Moon’s employers, was whether Mr Garrett should have guarded the pit by a structure which would have prevented anyone who slipped and rolled entering the pit.

The judge found that :-

He further found (in the context of the claims against the employers) that:-

So far as the liability of Mr Garrett under the 1996 Regulations is concerned I will return to that when dealing with Mr Moon’s Respondent’s Notice. Suffice it to say at this stage that the judge held that those Regulations did not apply to Mr Moon, since he was “acting as a delivery driver”, whereas the Regulations applied to “construction work carried out by persons at work” which he interpreted as “construction workers” as such. Thus it was that the judge considered Mr Garrett’s liability by reference to the Occupiers’ Liability Act and negligence, in relation to which he said “the two seem to me to go hand in hand”, a proposition which was not challenged.

The judge quoted s.2(2) of the Occupiers’ Liability Act. The obligation under that section is “to take such care as in all the circumstances of the case is reasonable to see that the visitor would be reasonably safe in using the premises for the purpose for which he is invited to be there.” He then found that “the nature of the hazard here present was extreme, and I must take that into account when assessing whether or not a duty of care was in fact complied with, both under the Act and in negligence.”

His finding was:-

Counsel for Mr Garrett emphasised that the duty under the Occupiers’ Liability Act was owed to the particular visitor invited on the land. The submission was that Mr Moon was a delivery driver invited to unload his lorry on the track at least three metres from the edge of the pit. The falling of blocks during the unloading was a totally unforeseeable event. Mr Moon’s own evidence was that he simply had to place the blocks on the ground and there was no suggestion that he had to walk anywhere, let alone near the edge of the pit. The ground was not uneven. There was no slope of any significance. There was no reason for Mr Garrett to anticipate that the unloading of the blocks would involve the risk of them falling off in such a way as to cause Mr Moon to step backwards so quickly that he then lost his balance, fell to the ground backwards and rolled sideways some three metres into the pit.

The submission was that by finding that the presence of this pit on private land gave rise to a duty to a delivery man not required to carry out his work so close to that pit that he was at risk of falling in, the judge was setting a standard of care far too high for an ordinary householder and was setting it at a level more akin to that of the employer of construction workers on construction sites.

In the alternative it was submitted that the judge should have made a finding by reference to s.2(4)(a) of the Occupiers’ Liability Act. Under that subsection it is provided:-

The submission on behalf of Mr Garrett was that the claimant was fully aware of the pit. There was the orange netting, which gave a further warning of the presence of the pit. Thus there was ample warning to Mr Moon of the danger which the pit offered and the judge should, on that basis, have held that Mr Garrett was not in breach of his s.2(2) duties in those circumstances.

Miss Plowden’s submissions on the Occupiers’ Liability Act

Miss Plowden submitted that it was wrong to characterise Mr Garrett as “an ordinary householder” undertaking “minor building works”. She accepted that where d-i-y work is generally minor, the standard of an ordinary competent amateur, not more, is what is required. However she submitted that where work undertaken by an occupier involves a level of skill and knowledge which would ordinarily prompt an occupier to employ a professional to do the work for him, and particularly where it involves potential danger to others, the occupier ought either to employ such a professional or ought to comply with the standards of the appropriate professional. Miss Plowden drew support for this submission from paragraph 12-33 of Clerk and Lindsell on Torts, 19^th Ed, which says:-

That passage by a note refers to Wells v Cooper [1958] 2QB 265 at page 274 for support. If support is to be gained from page 274 it may, I think, be by inference, but as a proposition it clearly makes sense. At page 274 it is of interest that Jenkins LJ also stated:-

Miss Plowden emphasised that the judge found here that:-

the building works were significant [paragraphs 39 and 16]

that Mr Garrett was employing an architect.

I see the force of the argument on behalf of Mr Garrett that the falling of blocks from the lorry, which started the incident which ultimately led to Mr Moon being injured, was difficult for him to foresee. But that, as it seems to me is not the question. The question is whether it was reasonably foreseeable that a man delivering blocks to the edge of the track, a few feet from this deep excavation, might slip, and if so whether it was reasonably foreseeable that in slipping he might fall into this pit. The fact that this pit was as dangerous as it was heightens the obligation to take care that even unusual accidents may result in serious injury.

The judge heard the action and assessed the witnesses and the danger that this pit produced. In my view, following the guidance of Jenkins LJ quoted above, the judge was in the best position to make an assessment as to the reasonable care which should have been exercised by Mr Garrett in the circumstances of this case. Thus I would dismiss the appeal against the judge’s decision on the Occupiers’ Liability Act.

The 1996 Regulations provide:-

Subject to the following paragraphs of this regulation, these Regulations apply to in relation to construction work carried out by a person at work.

These Regulations shall not apply to any workplace on a construction site which is set aside for purposes other than construction work.

. . .

Falls

Without prejudice to the generality of paragraph 9(1) and subject to paragraph (6), where any person is to carry out work at a place from which he is liable to fall a distance of 2 metres of more or where any person is to use a means of access to or egress from a place of work from which access or egress he is liable to fall a distance of 2 metres or more –

By Regulation 2 “construction work” is defined. I need not set out this definition because it is not in dispute that construction work was being carried out at the home of Mr Garrett But equally clearly Mr Moon was not directly carrying out such work.

“Place of work” is also defined as meaning any place which is used by any person at work for the purposes of construction work or “for the purposes of any activity arising out of or in connection with construction work.”

Mr Edwards did not suggest that the 1996 Regulations did not apply to Mr Garrett insofar as he was employing builders to carry out the construction work. Thus it was accepted that Mr Garrett was in control of the works, but the issue before us, as before the judge, was whether Mr Moon was “a person at work” within Regulation 3(1).

Miss Plowden sought to use the interpretation of “place of work” as a guide to the meaning of “a person at work”. She suggested that a person involved in any activity “arising out of or in connection with construction work” should be included within the definition of “a person at work”.

It seems to me that there is force in that submission in that when one goes to Regulation 6(3) the person sought to be protected is “any person” carrying out “work at a place from which he is liable to fall”. It would seem to me strange if the persons thought to be protected by this regulation were simply the persons involved in construction work as such. For example, if a workman were simply carrying tea to his fellow workmen on a construction site and required to carry that tea in circumstances where he might fall a distance of two metres or more, I would have thought the regulations were designed to protect him.

In my view a workman employed by Mr Garrett to go and collect blocks and bring them back to the site would clearly be a person which these regulations were designed to protect.

The fact that Mr Garrett has ordered these blocks to be delivered by a third party and brought to the site to be unloaded in a particular place would seem to me to bring the delivery man within the definition of “a person at work” in relation to construction work.

Mr Edwards was inclined to accept that his position on liability would be more difficult if these regulations applied, although he submitted that a question would still arise as to whether Mr Moon was carrying out work at the place from which he was “liable to fall a distance of two metres”.

The view I have expressed in relation to the construction of the regulations is clearly obiter, but in my view it is not surprising to find that the duty of an occupier who is carrying out extensive building works such as Mr Garrett was carrying out should be under a duty very similar to that which would be owed by a professional builder. As it seems to me, the question under the regulations would be whether Mr Moon was “liable” to fall. Since I have already expressed the view that it was reasonably foreseeable that Mr Moon, as a delivery man, might fall and slip, it follows that I would have also found Mr Garrett liable under these regulation if that question had arisen.

Costs Appeal

Following delivery of his judgment, counsel acting for the second and third defendants sought an order for the payment of their costs as against Mr Garrett. In so doing he was seeking what is commonly called a Sanderson Order (see Sanderson v Blyth Theatre Company [1903] 2 KB 533). The judge, after fairly short submissions by Mr Edwards for Mr Garrett, made such an order. He reasoned in the following way:-

It seems that the judge did not have cited to him Irvine v Commissioner of the Police for the Metropolis [2005] EWCA Civ 129. In that case the Court of Appeal had to consider whether a judge, who had refused to make a Sanderson order (or indeed a Bullock order) see Bullock v London General Omnibus [1907] 1KB 264), had exercised his discretion appropriately. The court in that case held that the judge had exercised his discretion properly, and in so doing considered certain of the factors which might or might not be present in considering whether it was appropriate to make a Sanderson or indeed a Bullock order. Paragraphs 17 – 19 and paragraphs 22 – 31 I will gratefully adopt as spelling out the relevant considerations:-

There is no doubt that the jurisdiction to make a Bullock or Sanderson order has survived the introduction of the CPR, though the exercise of discretion to make such an order must be guided by the overriding objective and the specific provisions of Rule 44.3. The jurisdiction is a useful one. It is designed to avoid the injustice that when a claimant does not know which of two or more defendants should be sued for a wrong done to the claimant, he can join those whom it is reasonable to join and avoid having what he recovers in damages from the unsuccessful defendant eroded or eliminated by the order for costs against the claimant in respect of his action against the successful defendant or defendants. However, it must also be recognised that it is a strong order, capable of working injustice to the defendant against whom the claim has succeeded, to be made liable not only for the claimant's costs of the action against that defendant, but also the costs of the other defendants whom the claimant has chosen to join but against whom the claimant has failed.

I stress the words "in the alternative". That accords with the way the jurisdiction is expressed in both the Bullock and the Sanderson cases, and by Lord Brandon, giving the only reasoned judgment in the House of Lords, in Bankamerica Finance Ltd v Nock [1988] AC 1002, at page 1011, where the fact that the claims against the two defendants in that case were in substance alternative claims, on which the claimant was bound to succeed on one and could not have succeeded on both, was relied on as showing that the court had power to make a Bullock or Sanderson order.

A significant factor is likely to be whether one defendant puts the blame on another defendant. But as Mr Featherby rightly conceded, the fact that one defendant blames another does not in itself make the joinder of the other reasonable. It must depend on the facts available to the claimant, and in particular whether the claimant can sustain a claim against the other defendant. Defendants frequently blame others when things go wrong, but it does not follow that the claimant is thereby given liberty to sue the others at the expense of the defendant against whom the claimant succeeds.”

As I have said, Irvine was concerned with whether a decision of a judge refusing to make either a Sanderson or a Bullock order should be upheld, but if the judge, having weighed up matters, decided to make a Sanderson order, there may have possibly been more to argue about (particularly in the light of Keene LJ’s dictum quoted in the above passage). Ultimately the court’s decision was that the judge’s exercise of discretion should be upheld.

It seems to me that the above citation demonstrates that there are no hard and fast rules as to when it is appropriate to make a Bullock or Sanderson order. The court takes into account the fact that, if a claimant has behaved reasonably in suing two defendants, it will be harsh if he ends up paying the costs of the defendant against whom he has not succeeded. Equally, if it was not reasonable to join one defendant because the cause of action was practically unsustainable, it would be unjust to make a co-defendant pay those defendant’s costs. Those costs should be paid by a claimant. It will always be a factor whether one defendant has sought to blame another.

The fact that cases are in the alternative so far as they are made against two defendants will be material, but the fact that claims were not truly alternative does not mean that the court does not have the power to order one defendant to pay the costs of another. The question of who should pay whose costs is peculiarly one for the discretion of the trial judge.

In the instant case, when solicitors for Mr Moon sent a letter of claim to Mr Garrett, dated 2^nd January 2002, they received a response by letter dated 4^th January 2002, which seemed to indicate that if court proceedings were taken the employers would be likely to become involved either as co-defendants or as a party joined by Mr Garrett. Furthermore, the letter indicated the way in which Mr Garrett was likely to fight the claim. The last two paragraphs of that letter read:-

This last paragraph is not one of which Mr Garrett was proud, which may explain why originally in our Court of Appeal bundle a copy of this letter appeared with a different last paragraph.

When proceedings were commenced on behalf of Mr Moon the employers were not initially joined as parties. Furthermore Mr Garrett did not seek to join them, but just prior to the expiration of the limitation period Mr Moon’s advisors joined Mr Moon’s employers. In the points of claim they alleged breaches of health and safety regulations. It cannot be said that those were frivolous allegations. Indeed the judge in his judgment appears to have decided the case in favour of the employers on the basis that the injury was not caused by any breach of the regulations but by the absence of a fence round the pit.

Once the employers were joined, Mr Garrett in his defence did seek to adopt such allegations as had been made against the employers.

It seems to me that this is not a case where it can be said that the judge exercised his discretion on any wrong basis. He took into account the way in which Mr Garrett had responded to the claim made on behalf of Mr Moon, both in laying blame on the employers and in making the threat in the last paragraph of the letter.

It seems to me the judge was right to take the view that it was reasonable to join the employers. They may not have been liable in the alternative in the one sense of that word, but they were a party who might have been found liable, and were a party on whom Mr Garrett did seek to place the blame.

I would dismiss the appellant’s appeal against the judge’s decision to order Mr Garrett to pay the employers’ costs.