Kmiecic v Isaacs

Mr Kmiecic suffered very serious injuries on 17 June 2006. He was working as a casual labourer for a man called Sniegula. Mr Kmiecic, the claimant in subsequent proceedings and the appellant in this appeal, fell from a ladder whilst carrying roofing material to the flat roof of a garage in Frognal Way. This was a house owned and occupied by Mrs Isaacs and her husband, who is not involved in these proceedings.

Mr Kmiecic's employer, Sniegula, (to his great discredit) was not insured, and so, in order to seek damages for very serious and lasting injuries, Mr Kmiecic was compelled to sue Mrs Isaacs, the defendant and now the respondent in this appeal. Swift J in her judgment dated 12 March 2010, [2010] EWHC 381 QB, rejected Mr Kmiecic's claim but with permission granted by Smith LJ. Mr Kmiecic contends that, read in a manner consistent with community Directives and in a communitaire way, the regulations impose an obligation on Mrs Isaacs to take care for the safety of workmen repairing the roof, as occupier of her house and garage in Frognal Way, Hampstead. The obligation, so it is said, is to be imposed on her because she exercised control over the means of access to the garage roof where the repair work was to be undertaken. She exercised that control by forbidding the workman, Mr Kmiecic, and a colleague to gain access through her son's bedroom window.

The roof needed repairing because of a leak. It was summer and the work was not urgent. In a judgment which is as clear as it is comprehensive Swift J found that on Friday 16 June 2006 Mrs Isaacs permitted Sniegula, Mr Kmiecic's employer and a co-worker, Mr Huber, to gain access to the roof to inspect its condition and decide what needed to be done through her son's bedroom window. There was no agreement, contrary to Mr Kmiecic's assertion, that the window could be used for access to the work once what was needed had been assessed.

The following day, Saturday 17 June, Mr Kmiecic and his colleague, Mr Huber, started work. On seeing Mr Huber climbing back into her son's bedroom Mrs Isaacs refused further access or egress to the garage work via a flat roof from the bedroom. Mr Huber and Mr Kmiecic then agreed that they should gain access to the flat garage roof by ladder. There is no finding that Mrs Isaacs was in any way responsible for the selection of a ladder, although it appears to have come from the garage. Mr Huber was on the roof when Mr Kmiecic, holding roofing material and intending to pass it to Mr Huber, toppled over and fell a distance of some one and a half metres with the unfortunate serious consequences I have described.

The ladder was plainly inadequate for the purpose, all the more so since it was resting on a cobbled uneven surface. Swift J describes how Mr Kmiecic placed a roll of material over his left shoulder and using his right hand climbed halfway up the ladder when it toppled over (see judgment at paragraph 39).

In her judgment the judge clearly attributes blame for that means of access and selection of equipment on Mr Sniegula (see in particular paragraph 95 and paragraphs 88 to 89) but acquitted Mrs Isaacs of all blame. Mr Sniegula's responsibility and dereliction of duty was compounded by the fact that he sought to conceal the injury to his workman from Mrs Isaacs.

The allegations against Mrs Isaacs, apart from negligence of which she was acquitted, were focussed on three sets of regulations, only two of which are advanced in this appeal: firstly, the Construction (Health, Safety and Welfare) Regulations 1996 ("the 1996 regulations") and secondly the Work at Height Regulations 2005 ("the 2005 regulations").

The essential question both for the judge, Swift J, and for this court, as I see it, is whether any duty was imposed by those regulations on Mrs Isaacs, who occupied the premises in Frognal Way. This turns on the construction of those regulations.

The allegations under the 1996 Regulations and under the 2005 Regulations were summarised by Swift J. I can give a flavour of them without repeating them in full. For example it was alleged under the 1996 regulations that Mrs Isaacs failed to supply sufficiently safe access to and egress from the claimant's place of work or to make and keep safe the place at which he was working contrary to regulation 5(1). It was alleged that she failed to provide equipment which was safe and suitable for the purpose for which it was used contrary to regulation 27(1). Under the 2005 regulations it was alleged that she failed to ensure that the claimant's work at height was carried in a manner which was properly planned and, so far as was practicable, was safe contrary to regulation 4(1); that she failed to identify the measures required by the 2005 regulations or to take account of a risk assessment contrary to regulation 6(1); and that she failed to provide suitable and sufficient measures to prevent, so far as was reasonably practicable, the claimant from falling a distance liable to cause personal injury contrary to regulation 6(3); and that she failed to ensure that the work that was carried out using an existing means of access and egress, in this case her son's bedroom window, contrary to regulation 6(4)(2).

This appeal turns on the construction of those parts of the 1996 and 2005 regulations, which identify those on whom the obligations under the regulations are imposed. By regulation 4 of the 1996 regulations the primary duty is imposed upon employers. Regulation 4(1) reads:

The obligation imposed under the 2005 Regulations is not expressed in the same terms. By regulation 3(2):

“The requirements imposed by these Regulations on an employer shall apply in relation to work—

(a)

by an employee of his; or

(b)

by any other person under his control, to the extent of his control.”

Regulation 3(3), which is the relevant regulation for the purposes of this appeal under the 2005 regulations, reads:

Mr Allen QC, on behalf of the appellant, Mr Kmiecic contends that both the 1996 and 2005 Regulations were enacted to give effect to European Union obligations and must therefore be construed in conformity with those Regulations so far as possible. This as a proposition of law was uncontroversial. The obligation of this court is to construe those regulations and in particular those part of the regulations imposing duties upon employers and others either controlling a person working or controlling the way in which construction work is undertaken in conformity with the relevant Directives: see for example Marleasing [1990] ECR 1-4135 at 4159.

He contends that construed in accordance with the Directives under the domestic regulations a duty is imposed on an occupier who exercises control over the means of access to and egress from a place of temporary construction work.

The starting point is the Framework Directive under which implementing Directives were subsequently enacted, 89/391/EEC. That Directive was enacted to introduce measures to encourage improvements in the safety and health of workers at work. The recitals emphasise the importance of improving safety and health at the workplace, for example:

The body of the Directive demonstrates that measures are to be introduced to encourage improvements in the safety and health of workers at work (see Article 1(1)) and accordingly various obligations are imposed upon employers under Article 5 and Article 6.

The council Directive 92/57/EEC of 24 June 1992 sought to implement minimum safety and health requirements at amongst other things temporary construction sites in implementation of the Framework Directive.

The recitals to that Directive emphasise the importance of coordination where a number of workers are undertaking work simultaneously or in succession at such a construction site, for example:

The Articles themselves define temporary construction sites and thus would include Frognal Way and include a definition of a client as: "any natural or legal person for whom a project is carried out... “Projects supervisor” means “any natural or legal person responsible for the...execution...and/or supervision of the execution of a project acting on behalf of the client."

Article 3 requires :

Article 7 points out that the implementation of certain of these articles does not affect the principle of employer's responsibility as provided for in the Framework Directive (see Article 7(2)) and that where a coordinator is appointed then a client or project supervisor's obligations are not removed (see Article 7(1)).

The 1996 Regulations sought to enact those provisions. Regulation 4(2) does, consistently with the Directives, impose obligations on persons other then employers which may include a client but only if and to the extent that that person controls the way in which the construction work is carried out. Mr Allen QC was correct in his submission that the occupier of a site may control the way in which construction work is carried out but will not necessarily do so. There is nothing within the Framework Directive or within the Implementing Directive 92/57 of 24 June 1992 which requires a Member State to impose obligations on occupiers who do not control the way in which the work is carried out. On the contrary if such an obligation were to be imposed on every occupier merely because that person is an occupier the result would be chaos. It is absurd to think that by requiring anyone who asks for repair work in their home to assume responsibilities under the regulations the safety of workmen would be improved. To impose on those uneducated and unskilled in planning and preparing construction work an obligation to ensure the safety of workmen is calculated to obstruct and impede the objectives of the Framework Directive and those Directives designed to implement them.

Mr Allen contended that any occupier who does in fact exercise control over the access and egress to a place of work by doing so incurs obligations under the 1996 Regulations. Thus when Mrs Isaacs, on the Saturday, prohibited access to the flat garage roof she thereby exercised control over the way in which the work was undertaken. It looked as though Mr Allen was also contending that if she kept quiet she would be under no such obligation and thus might have been better advised to go out shopping or away on holiday because she would not thereby have exercised the control. But I think he was driven to accept that whenever a householder has power to control the access or egress to the place of work that is sufficient to incur the obligation under the Regulations and a householder cannot escape merely by staying away.

It is true, as Mr Allen argued, that an aspect of the way in which work is carried out is control over the means of access to and egress from the place of work. Access and egress does relate to the manner in which construction work is carried out (see for example, in relation to the width of the application of the regulations, Regulation 3(1), which provides that "Subject to the following paragraphs of this regulation, these Regulations apply to and in relation to construction work carried out by a person at work”).

Thus those who have the responsibility for controlling the way in which construction work is carried out also have responsibility for controlling access to and egress from the place of work. But non sequitur that when a householder exercises her rights as occupier to dictate what access to work she will permit in her home she is thereby obliged to ensure the safety of access to or egress from the place of work. Control over construction work necessarily involves control over access to that work but control over access to work exercised by an occupier of premises does not of itself connote control over the construction work within the meaning of the Regulations. Nothing in the Directives dictates to the contrary.

There is authority for that proposition if authority is needed. In McCook v Lobo & Ors [2003] ICR 89, [2002] EWCA Civ 1760 a claimant was injured when he fell from a ladder whilst carrying out repair and conversion building work at premises owned by the first defendant. The first defendant, a Mr Lobo, was found to be a prudent site owner who visited the site from time to time and when he saw anything to cause concern he issued instructions so as to reduce any potential risks to anyone on site (see paragraph 9). What was thought to be the law until Mr Allen submitted to the contrary is set out in paragraphs 5 to 18 in the judgment of Judge LJ. He draws a clear distinction between control exercised by the occupier of a site and control exercised over the way in which work is carried out. He cites regulation 4(2) of the 1996 regulations and then continues:

“In principle it is clear that the obligation to perform the duty provided by the regulation cannot be avoided by abdicating responsibility. If compliance is required, it is not an answer to contend that the duty was ignored and thus did not arise. The requisite level of control before the duty does arise, however, is linked to the way in which construction work is carried out and it is confined to construction work within the individual's control. For this purpose the obvious person who controls the way in which construction work on site is carried out is an employer. The employer owes express duties under regulation 4(1). That, therefore, identifies the starting point. But someone who is not an employer may also be bound by the statutory obligation under regulation 4(2). Whether the appropriate level of control over the work is or should be exercised by an individual other than an employer so as to create the duty to comply with the obligations under regulation 4(2) is, in my judgment, a question of fact. It is not answered affirmatively by demonstrating that an individual has control over the site in a general sense as an occupier, or that as the occupier of the site he was entitled to ask or require a contractor to remove obvious hazards from the site. The required control is related to control over the work of construction.”

To similar effect was the judgment of Hale LJ, who focussed on the fact that the question of control was a question of fact (see paragraph 28).

Both those judgments and the decision of this court demonstrate that mere exercise of control as an occupier is not the same as exercise of control over the way in which the work is undertaken. Nothing within the Directives requires the concept of control over the way in which construction work is carried out to be elided with the concept of control over a site as occupier. On the contrary, as I have sought to demonstrate, the objectives of safety which the Directives seek to achieve would be undermined by such confusion of obligations. It cannot make any difference that in McCook the claimant did not plead obligations in relation to access or egress but confined his complaint only to the safety at work provisions.

The same reasoning in my view applies to Mr Allen's attempt to impose on Mrs Isaacs duties under the 2005 Regulations. Those regulations, which I have already set out, and in particular Regulation 3(3) are limited to the imposition of obligation in respect of any person in relation to a work by a person under his control to the extent of his control. It is true that an occupier may have persons under his control who are not in his employ, but neither Mr Kmiecic nor his colleague Mr Huber came under Mrs Isaacs’ control merely because she forbade them access to the roof through her son's bedroom window. The 2005 Regulations sought to enact Directive 2001/45/EC of 27 June 2001. They did implement the Framework Directive in relation to dangers of work at height by, it is to be noted, adding to Appendix 2 of the Framework Directive and in particular provisions concerning the use of work equipment provided for temporary work at height made specific reference to Article 6 of the Framework Directive: see Article 4(1)(1). Article 6, it is to be noted, imposes general obligations on employers providing:

“Within the context of his responsibilities, the employer shall take the measures necessary for the safety and health protection of workers, including prevention of occupational risks and provision of information and training, as well as provision of the necessary organization and means.”

Accordingly there is nothing in the Framework Directive or the implementing Directive in relation to dangers of working at height which extends the obligations of employers to a householder who merely seeks to restrict access within her home by workmen working on repairs there.

In short community legislation does not undermine the essential principle of common law that the occupier of premises exercising the right to control access to and from her premises does not thereby incur any obligations to ensure the safety of workmen there under the 1996 or 2005 regulations. Safety on temporary construction sites is better ensured by focussing the responsibility on employers and others who are equipped to assess how that can best be secured.

I would dismiss the appeal.

I agree. In granting permission Smith LJ said of Mr Allen's arguments that if they were to succeed it would have a result which: