Tafa v Matsim Properties Ltd & Ors

This trial has been limited to the issue of liability as against the Second and Third Defendants. The claim against the First Defendant has been discontinued. It concerns an accident at work.

The Claimant was born in Kosovo. His date of birth is the 15^th of January 1964. His first language is Albanian, although it is clear from the way he gave his evidence before me - which was for the most part given without the aid of the sworn interpreter - that he is able to understand and to communicate in English albeit I accept that he may on occasion find it difficult to understand everything which is said to him and there is the inevitable scope for misinterpretation of what he himself is saying. When asked by Mr Jeffreys QC on behalf of the Defendants whether he could read English his reply was “only a little” and certainly not “legal matters”.

He first came to this country in 1997 and has been living with his partner Colleen McArdle and her 3 children in Brighton since 1999. His work experience since coming to the United Kingdom has been that of a general labourer. He has had some experience of carpentry and shuttering work, and may well have done some building work in his home country but he certainly had had no experience of working at a height in a roof space, prior to the accident with which this action is concerned.

This claim arises out of the serious personal injuries sustained by the Claimant on Friday the 5^th of May 2006 in an accident at work in which when working in the roof void on a timber joisted structure which had been constructed above the third floor suspended ceiling of a building in Hove, he fell through the ceiling to the floor below, a distance of some 2.7 metres. As a result the Claimant is now a T8 paraplegic.

This was the first day of the Claimant’s work at this building. At the time he was working under the immediate instructions of one Peter McDonald, a sole trader self employed carpenter and general handyman. Initially in the morning Mr McDonald had asked him to do some general labouring work, clearing up building debris and the like, but later on into the day around lunchtime, he had asked him to fix boarding onto the joists within the roof space to provide a walkway means of access from the already purpose built loft hatch entry, to an air conditioning unit which had been installed at the rear. The boards were large MDF boards with a pre-cut tongue and groove on the edges enabling them to be joined together. The boards had to be nailed down onto the central line of the joists running down the length of the building and their edges trimmed with an electric jigsaw. It was while the Claimant was undertaking this work and in particular while he was moving a plank into position so he could stand upon it in order to trim the edges of a board which had just been nailed down, that he lost his balance and fell though the fragile tiles of the suspended ceiling.

That which I have just recorded as the immediate circumstances of the accident is based upon the Claimant’s own testimony which on this issue I accept. There was no other witness to the accident. The Claimant was alone in the roof void at the time. The Claimant had been working on this job of fixing the floorboards with Mr McDonald’s son, Shawn, but it appeared that once they had got as far as nailing down the first board, Shawn had gone off to buy some drinks from a nearby shop leaving the Claimant on his own. Peter McDonald was working elsewhere in the building. The Claimant was discovered after the event on the floor by Mr McDonald and his son.

Although there is a dispute as to whether at the time there was a handrail/guardrail in situ (as shown on a video recording taken by the Second Defendant, three days later on Monday the 8^th of May 2006) there is no dispute that there were no adequate safety precautions in place at the time of the accident to protect anyone working in that roof space from the obvious risk of falling through the ceiling. In particular nothing had been done to provide edge protection or to provide any scaffold below the area where the Claimant was working or from which he could work, to mitigate the danger of falling. As was said in a letter from the Health and Safety Executive (‘HSE’) to the Second Defendant (13 February 2007) in a statement which I find was wholly justified “the immediate cause of the accident was that there was neither edge protection nor fall arrest equipment nor fall mitigation arrangements in place or available”. On any view the Claimant had not been provided with a safe place of work or a safe method of working.

Further, I record my finding at the outset of this judgment that on any view of the evidence this work at height which the Claimant had been asked to undertake, had been neither properly planned, nor was it being appropriately supervised nor had any steps been taken to ensure it was carried out in a safe manner.

Further, on the evidence, the Claimant himself had neither the training nor experience safely to carry out the work.

Moreover, I record at once my finding on the evidence that Peter McDonald could not himself be described as a person with the appropriate training, technical knowledge or experience necessary to reduce the risks of injury to anyone carrying out this work at height, appropriate that is for the purpose of either carrying out this work or supervising anyone carrying it out. Nor was he competent in the organisation, planning or supervision of such work. Based upon that which the Second Defendant and her husband told me, I accept that he did have some experience of doing work at height through having carried out re-roofing work, as well as additional carpentry work, on the Second Defendant’s family home. Further, he had been entrusted with the job of constructing/installing the timber joisted structure above the suspended ceiling. However, there is nothing to suggest that he himself had had any technical knowledge, as to for example general health and safety, safe scaffold erection, or knowledge of the material Construction (Health, Safety and Welfare) Regulations or the Work at Height Regulations.

When under cross examination it was suggested to him that the written “Risk Assessment” upon himself prepared by the Second Defendant’s husband, accurately described under “pre-commencement Assessment” that which he, Peter McDonald, had discussed at the outset of the project referred to below, as regards work from height, (viz “(5) working from height – most works from below ceiling. If works from above ceiling required boarding edge protection or scaffolding towers to be provided …”), not only did Peter McDonald disagree and said that this was not discussed ,but I got the very real impression that he did not really appreciate what a “risk assessment” of a given piece of construction work was all about. It is beyond question that before directing the Claimant to do this work, Mr McDonald made no risk assessment of the work which he was asking the Claimant to undertake. He made no assessment of the control measures necessary to enable the Claimant to carry out the work safely. He made no effort to identify the need for edge protection or other means of ensuring the Claimant’s safety.

Peter McDonald had been engaged on this site since the previous November to carry out various works of carpentry, brickwork and other odd jobs not undertaken by specialist contractors, and to be a general key holder present to let in other contractors and to show them around. He kept the Site Diary. Whether he had the further role of site foreman is in dispute. This was not accepted by him, although contended for by the Defendants. What is clear however, is that before being engaged to work on this site or after his engagement, Mr McDonald had never produced his own risk assessments and method statements. Nor had he ever been asked by anyone to establish his competence by producing any.

Peter McDonald certainly had no experience of supervising work at height.

One of the issues in this case has been whether proper competence checks were ever carried on Mr McDonald by the Second and/or the Third Defendants for the purposes of entrusting him with work at height. The evidence of the Second Defendant’s husband, Stephen Ulph, was that as far as he was concerned, Mr McDonald was used to supervising at height. Having myself seen Peter McDonald in the witness box, I am quite satisfied that there could be no proper basis for such an assessment of Peter McDonald. He himself was adamant (both in his witness statements and under cross examination) that he had never previously had any supervisory role and this I can fully accept. As he said in his witness statement of 12^th of May 2010 “I am a self employed Carpenter and I do not believe I would have told (the Second Defendant’s husband Stephen Ulph) that I was used to supervising at height.” It is true that his son, Shawn, had assisted him in the re-roofing at the Second Defendant’s home but his role was a limited one. “Mr S McDonald moved materials and made tea and did not use power saws” (evidence of Stephen Ulph, 1^st witness, para. 4).

In other words I am satisfied that there was no proper basis upon which an assessment could be reasonably be made that Peter McDonald had the necessary competence to be in charge of the organisation and supervision of work at height.

The building in question, known as the Agora building on Ellen Street, was owned by the First Defendant, Matsim Properties Limited. On the 7^th of November 2005 the Third Defendant, a limited company, Agora Gynaecology and Fertility Clinic Ltd, entered into a 10 year lease with the First Defendant for the Third Floor East Quarter of the building. This was to be used for the purposes of its business as a clinic specialising in infertility and IVF treatment. The demised premises comprised the material part of the third floor with which this claim is concerned although they did not include the roof void as such. The First Defendant in the action against it, was alleged to be the occupier of the roof void. The Second Defendant, a Consultant Obstetrician and Gynaecologist, is and was a director and 50% shareholder in the Third Defendant. The only other director and 50% shareholder was a similarly qualified Mr Hossam Abdalla.

The claim against the First Defendant, now discontinued, was linked to the project of works which it had originally undertaken to convert the building into office accommodation and to certain works which it had agreed to carry out to the demised premises under the agreement for the lease, and, as indicated, was on the basis that it remained an occupier of the roof void. Those First Defendant’s works to the demised premises were however halted being potentially at variance with the Third Defendant’s fit out requirements.

The Claimant’s case against the remaining Defendants with which this judgment is concerned is that the work upon which he was engaged at the time of his accident was part of a project of works of adaptation and fit-out to the third floor which the Third Defendant acting through the Second Defendant was conducting to make the floor suitable for its clinic. Those works had commenced in November 2005 and remained in progress at the time of his accident. The Defendants do not dispute that such a project of work was being conducted by the Third Defendant.

The role of the Second Defendant in the project and her legal responsibility for the same is however keenly disputed. I am however satisfied that it was the Second Defendant who was behind the decision of the Third Defendant to undertake this project and who was the director who on behalf of the Third Defendant took on the initial responsibility for the planning and instigation of the project. Whether she retained this responsibility throughout, is an issue in dispute to which I shall return. There is no suggestion however that she ever involved her co-director, Mr Abdalla, in any processes connected with the works. There is moreover no evidence that the Second Defendant ever delegated any such responsibility to another officer of the company through the exercise of her constitutional powers as director.

Further the Defendants do not dispute that work to install a boarded walkway in the roof space above the suspended ceiling to give access to the air conditioning units installed there was work which would have had to have been carried out as part of that project in due course. However their case is that as at the 5^th of May 2006 such work was premature and no instructions to Mr McDonald had ever been given by or on behalf of the Third Defendant in respect of that work. In effect they say that in giving the instructions he did to the Claimant, Mr McDonald was acting on a frolic of his own.

As to prematurity, the unchallenged evidence of the Second Defendant was that the boarding in the roof void was not required until all the lighting had been installed and such installation was to await the publication of the requirements of the third European Tissue Directive as to air grade quality with which the Clinic had to comply, which as at the date of the accident had not yet been published. Hence as at that date, the installation of the lighting was still outstanding, and it is said that the laying of the flooring at that time was positively unhelpful to that task. As further evidence of prematurity, the Defendants have relied upon the fact that following the accident electrical contractors were engaged by the Third Defendant “to take up the flooring in the roof space and to disconnect and reroute cables due to flooring being laid on top of cables.” An invoice has been produced by the Defendants dated the 22 of May 2006 from the electrical contractors expressly describing the works carried out by them in these terms. According to the Second Defendant, the clinic had decided to await the publication of the material Directive before completing the works in the laboratory and treatment room and the plan accordingly had been to open the clinic for consultations only in late summer 2006. In the event the Directive was not published until October 2006 and the lighting and clinical storage units were only installed at that stage. It is said that the air handling was not commissioned until January 2007 and it was then that the boarding in the roof void became required and it was then that it was put in by another set of contractors (Jackson Plumbing and Heating).

The Claimant’s case is that to the contrary, Peter McDonald had been expressly asked to carry out the work by the Second Defendant and moreover he himself had been brought onto the site by Peter McDonald only after Peter McDonald had sought and obtained authority for the same from the Second Defendant who had expressly agreed with Mr McDonald to pay the Claimant a daily rate of £60. The Claimant avers that as at the date of the accident he was the employee of the Second and/or the Third Defendant.

There is however no allegation that Peter McDonald was an employee of either Defendant.

No action has been brought against Peter McDonald. This is no doubt because in terms of means he is a man of straw. He had no liability insurance. Indeed subsequent to the accident it was discovered that the Third Defendants itself had no liability insurance cover for the accident. The Second Defendant gave evidence, as did her husband, that their mistaken belief was that Mr McDonald did have insurance because he had told the husband he had. Their further mistaken belief was they could rely upon insurance cover arranged by their landlords, that is to say the First Defendant, as evidenced by a Tenants Bonus Certificate provided by the landlords for which they had been invoiced. Peter McDonald denies ever saying that he had such insurance and that he would never have said he had. Again, having seen Mr McDonald in the witness box, I accept this to be the case.

The claim against the Second and Third Defendants is pleaded in common law negligence and in breach of statutory duty.

As regards negligence, the case against the Second Defendant is pleaded in paragraph 31 of the Particulars of Claim in the following terms:

“the Second Defendant voluntarily assumed the responsibility of acting as project manager at the site, engaged the services of the Claimant to work there and personally directed the works in which he was involved. The Second Defendant owed a duty of care to the Claimant to ensure that he was reasonably safe whilst working at the site. Further in so far as the Third Defendant acted in breach of duty towards the Claimant as hereafter particularised that breach of duty was induced and/or procured and/or authorised by the Second Defendant such that she is liable to the Claimant as a joint tortfeasor”

It can thus be seen that the case against the Second Defendant in negligence at common law is pleaded in two distinct ways.

One is based on a breach of an alleged duty of care owed personally to the Claimant arising out of a voluntary assumption of responsibility founded on three elements (1) that she acted as project manager at the site; (2) engaged the services of the Claimant to work there and (3) personally directed the works in which the Claimant was engaged.

Elsewhere in the Particulars of Claim, averments are to be found to support each of these three elements. Thus:

Breaches of this duty particularised against the Second Defendant at paragraph 38 of the Particulars of Claim include:

I agree with the Claimant’s submissions that if such a personal duty were owed, the Second Defendant cannot be relieved of any liability for breach of that duty by reason of her status as a director of the Third Defendant. I agree that a director of a company can no more evade personal liability for negligence in organising works etc than can an individual employee or agent of the company if negligent. As was said by Slade LJ in C Evans v. Spritebrand Ltd [1985] 1 WLR 317, 323B:

“Mr Watson…on behalf of the director did not attempt to submit that a director of a company will escape personal liability to third parties for torts which he has personally committed by his own hand …merely because he committed the tort in the course of carrying out his duties as director of his company. He can escape personal liability for such torts no more than can an employee acting in the course of his employment for a company or an agent acting in the course of his agency for a company”

I emphasise the expression “personal liability for torts …which he has personally committed”. See too on this point the observations of Lord Hoffman in Standard Chartered Bank v. Pakistan National Shipping Corporation [2003] 1 AC 959 at paragraph 22 (“But Mr Mehra was not being sued for the company’s tort. He was being sued for his own tort…”)

The assertions of fact which I have identified as the basis for this personal duty of care have however been contentious throughout both in the pleadings and in the evidence called on behalf of the Second and Third Defendants. Thus:

By the end of the trial the basis for this personal duty of care had changed in the closing submissions on behalf of the Claimant. This was no doubt because of the way the evidence from Mr McDonald had become much more equivocal as to who had instructed him to do the work within the roof void. and as to precisely when and by what method of communication, the Second Defendant had given him authority to bring the Claimant on site.

In these closing submissions, this personal duty of care is now said to have arisen “by virtue of her voluntary assumption of overall responsibility for health and safety on the site.” (written closing submission para. 14), which duty of care did not depend upon her knowledge either that the Claimant was to be brought on site by Mr McDonald to carry out work at height or that the work at height was to be carried out on the particular day so long as work at height was within the type of work which she contemplated would be carried out by Mr McDonald in the course of the project. This latter proposition is said must have been the case, not least because of the risk assessment prepared upon him by the Second Defendant’s husband at the beginning of the works which included the reference to working from height in the passage to which I have already referred.

The principal evidence relied on to establish this basis of liability has as its starting point the Health and Safety Plan (“the Plan”) for the Third Defendant’s project of fit out works, dated 24.10.2005, coupled with the contents of the Third Defendant’s Health and Safety Policy (“the Policy”) signed by the Second Defendant and dated the 5^th of October 2005, and which on its face was said the be “authorised by CGS” (the initials of the Second Defendant). The Plan, which on the evidence was drawn up by Mr Ulph, expressly stated that “this document to be read with AGFL Health and Safety Policy”.

Within the Policy under the heading of “General Responsibilities” is stated:

“1.

As Registered Manager, Dr Carole Gilling-Smith has overall responsibility for health and safety.”

Under the heading “Specific Responsibilities” appears:

“1.

Overall and final responsibility for health and safety is that of the Registered Manager.

2.

This includes day to day responsibility for ensuring this policy is put into practice.”

Moreover the Second Defendant is included along with her husband in the Plan, under the heading “Quantity Surveyor (Project Manager)”. The entry reads: “AGFL-Dr Gilling-Smith & Mr S Ulph (mob 0796 401 704)”.

Then reliance is put upon the Second Defendant’s ultimate acceptance in oral evidence that she wrote the Policy, that she had overall responsibility for health and safety, that the Policy was intended to cover the building phase of the Clinic and any subsequent refurbishments, that she understood construction work was dangerous and understood the importance of good health and safety procedures on construction sites. Although she may have sought to delegate responsibility for health and safety to her husband (to the question what had she done to discharge her responsibility for health and safety as regards the construction works, her answer was that she had appointed her husband as project manager), the Claimant says that she should be found by this court as having retained this overall and final responsibility in respect of the construction works. On the evidence it cannot be said – so the submission goes - that she had entrusted such matters to a truly independent third party professional with clearly specified oversight and planning obligations under a written contract. Her husband was unremunerated and without any such written contract. He accepted in evidence that he was undertaking other works in his professional capacity at the same time.

I shall return in due course to the legitimacy of this submission. The essential response of Mr Jeffreys QC on behalf of the Second Defendant is that if the core factors relied upon in the Particulars of Claim for this personal duty of care have not been established on the evidence, then there is no other basis upon which such a duty can be held to have arisen. He has reminded me of what he describes are the legal rigours of the principles now well established at common law for the finding of such a duty, namely the need for (i) forseeability of harm (“a reasonable person in the position of the Defendant must have foreseen the risk of harm) and (ii) proximity as between the parties (“there must be a relationship of proximity or neighbourhood between the Claimant and the Defendant”) and in addition (iii) it must in the circumstances be “fair, just and reasonable” to impose a duty of care upon the Defendant (the Caparo test, see Caparo Industries Plc v Dickman[1990] 2 AC 605,617 – 8).

A quite separate basis of the pleaded claim in common law negligence against the Second Defendant is as a joint tortfeasor with the Third Defendant on the basis that the acts of the Third Defendant which it is alleged amount to a causative breach of its duty of care owed to the Claimant, in other words a tort committed by it against the Claimant, had been “induced and/or procured and/or authorised” by her. That this can be the basis of a director’s liability was recognised by the Court of Appeal in C. Evans Ltd, supra. Although it was there emphasised that the extent of a director’s personal involvement in the company’s tort has to be carefully examined and a person who has only facilitated (as opposed to procured) a tort would not be liable as a joint tortfeasor, it was said that if the director had authorised directed or procured the acts complained of, it was not an essential condition of his liability that he knew or was reckless as to whether the acts were tortious, unless the primary tortfeasor’s state of mind was an essential ingredient of the tort alleged - not the case of course as regards the tort of negligence.

The breaches of duty of care alleged against the Third Defendant in the Particulars of Claim themselves include (by virtue of paragraph 39) those at paragraph 38(2) “failing to ensure work at height at the site was properly planned, appropriately supervised, and carried out in a manner that was so far as reasonably practicable safe”; and at paragraph 38 (3) “failing to ensure that only competent persons were involved in the organisation, supervision and performance of work at the site.”

The way the case is put under this head against the Second Defendant is that on any proper analysis of the evidence it is only through the Second Defendant’s own conduct and that of her agents that the Third Defendant can have become liable to the Claimant at common law.

The Second Defendant, it is said, had a direct hand in the acceptance of Peter McDonald without good basis as a competent contractor to conduct work at height safely which acceptance is at the root of these principal breaches of common law duty of care alleged against the Third Defendant. To sustain this contention, reliance is again placed upon the initial Risk Assessment prepared upon Peter McDonald, to which I have already referred, where it is stated under the heading “recommended by (competence check)”: “GCS and SU”. In other words the Second Defendant was herself vouching for the competence of Peter McDonald. Although in her witness statements and oral evidence, the Second Defendant sought to rely upon her husband’s assessment of the competence and trustworthiness of Mr McDonald rather than her own, this personal involvement of the Second Defendant in the selection of Mr McDonald is supported in part by the contents of the Defence of the Second and Third Defendants: at paragraph 13, in support of the averment that the Third Defendant had engaged the services of Peter McDonald, it is pleaded that “she” (a reference to the Second Defendant) had had the opportunity to observe the quality of his work and of those he employed”; at paragraph 29(6)(7), it is pleaded that “at the material time Peter McDonald had not been assigned tasks involving work at height but the Third Defendant was satisfied as to his competence to perform such work on the strength of work which he had previously done for the Second Defendant upon her roof at her home”.

Reliance is again placed under this basis of liability, upon the acceptance of the Second Defendant in her oral evidence, already referred to, that she had overall responsibility for health and safety and that the Policy was intended to cover the building phase of the clinic and any subsequent refurbishments and that she understood construction work was dangerous and understood the importance of health and safety.

The overall submission is made that the Second Defendant had accepted overall responsibility for health and safety from the building phase onwards and had procured and authorised the subsequent set up operated by the Third Defendant which contained the essential failings giving rise to the accident, whereby her husband acted as an unremunerated project manager without any written contract with specified oversight and planning obligations and an incompetent McDonald was engaged with a major role in overseeing the works, in particular works at height.

Again I shall return to the legitimacy of this submission.

Breach of Statutory Duty is pleaded against both the Second and the Third Defendants under two sets of Regulations, namely the Construction (Health and Safety and Welfare) Regulations 1996 (“the Construction Regulations”) and the Work at Height Regulations 2005 (“the Work at Height Regulations”);

It is not in dispute that the works upon which the Claimant was engaged were works governed these respective regulations. Nor has it been seriously argued on behalf of the Defendants that the Claimant cannot establish on the evidence at least one causative breach of the requirements of those regulations, even if not all the pleaded breaches are conceded.

The dispute has been as to whether either Defendant was under any obligation to ensure compliance with the regulations so as to give rise to a cause of action against the particular Defendant for breach of statutory given each denies being the employer of the Claimant and each denies having had any control over the work the Claimant was undertaking or over the Claimant himself.

There is no dispute that a breach will give rise to civil liability by reason of section 47(2) of the Health and Safety Act 1974 (“the 1974 Act”). Both sets of regulations were made pursuant to the 1974 Act as amended, although The Work at Height Regulations were intended to implement the material European Council Directive (2001/45/EC). Section 47(2) of the 1974 Act provides as follows:

“(2)

Breach of a duty imposed by health and safety regulations …shall so far as it causes damage, be actionable except in so far as the regulations provide otherwise”

This section does not in terms limit or confine the status of person who can sue. I agree with Mr Lawson who presented the principal submissions on behalf of the Claimant under this head that it must follow that if the Claimant can establish as against any Defendant a breach of obligation under either set of regulations causative of his injury, then liability must follow regardless of the nature of the Claimant’s relationship or lack of relationship to that Defendant, provided always that the Claimant can be said to be within the class of person for whose benefit the regulations were enacted, namely a person carrying out at work the type of work to which the regulations apply, which in my judgment he surely can. The Construction Regulations material to this action “apply to and in relation to construction work carried out by a person at work” (see regulation 3). The Work at Height Regulations self evidently are for the protection of anyone working at height at work. I have found support for the soundness of this reasoning in the judgment of the First Division Court of Session in Donaldson v. Heyes Distribution Services Ltd [2005] CSIH 48; (2005)SLT 733.

The significance of this latter principle arises acutely in the context of the Work at Height Regulations where the trigger for becoming under obligation is expressed in terms of control over the person at work rather than control over the work itself. Given the disputes of fact which have arisen in this case, it has become necessary for this court to consider the issue of residual liability in breach of statutory duty, where it is able to find that a given Defendant had control over one of the persons immediately involved in the Claimant’s accident and who has played a causative role in the Claimant’s accident, namely Peter McDonald himself (the person who gave the instructions to the Claimant to do the work and was purporting to provide the necessary supervision, organisation and planning but who on my findings lamentably failed to do so) whether or not the Defendant had like control over the Claimant himself.

Apart from causation, the crucial question arising on the claim based on breach of statutory duty under these regulations has accordingly been whether on the facts either or both Defendants were under any duty to comply with the regulations and the extent of that duty.

As already indicated, the test applicable for these purposes under the respective regulations is not identical, although each focus on the concept of “control”.

The material regulation under the Construction Regulations is that of Regulation 4 and for present purposes as against the two Defendants, paragraphs 4(1) and (2), providing as follows:

“4.

Persons upon whom duties are imposed by these Regulations

(1)…it shall be the duty of every employer whose employees are carrying out construction work and every self employed person carrying out construction work to comply with the provisions of these Regulations insofar as they affect him or any person under his control or relate to matters which are within his control;

(2)

It shall be the duty of every person (other than a person having a duty under paragraphs (1) or (3)) who controls the way in which any construction work is carried out by a person at work to comply with the provisions of these Regulations insofar as they relate to matters which are within his control.”

Regulation 4(3) relates to employees carrying out construction work.

It can thus be seen that if neither of the Defendants was the employer of the Claimant, then for a duty to be imposed it has to be established that the Defendant was a “…person who controls the way in which any construction work is carried out by a person at work”. The duty then is to comply with the provisions of the regulations but only “insofar as they relate to matters which are within his control”.

The material matters within the provisions of the regulations with which this claim is concerned, and which are the focus of the dispute as to whether either Defendant had the necessary control, relate to (the emphasis is the emphasis of this court)

Under these Regulations the requirements in each particular regulation are expressly imposed on an employer and by regulation 3(2) those requirements 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; However regulation 3(3) provides that the requirements imposed by these regulations on an employer shall also apply to “(b)…any person other than a self employed person, in relation to work by a person under his control, to the extent of his control”; (the emphasis is the emphasis of the court).

Thus the focus under these regulations as regards those who are not employers is upon the control of the person carrying out the work and the extent of the control.

The material requirements of the regulations which are said to have been imposed on the both Defendants by virtue of the operation of regulation 3(3)(b) assuming neither is found to have been an employer of the Claimant, include those:

Control for the purposes of regulation 4(2) of the Construction Regulations is a question of factual control which focuses on control over the work and not control over the site. This was confirmed by the judgments of the Court of Appeal in McCook v. Aloysius Lobo [2002] EWCA 1760. Judge LJ put the matter thus at paragraph 16:

“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 …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 an 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”.

At paragraph 28, Lady Justice Hale said this:

“regulation 4(2) …to my mind depends entirely on the question of factual control. Of course if a person has factual control but choose not to exercise it, they cannot therefore escape liability. But there will still be the question of fact whether such control exists. In the circumstances of a client who is contracting with an apparently reputable contractor to conduct construction work in his premises, there is little reason to doubt the straightforward factual finding made by the judge that the client was not in control of the way in which the Claimant was doing his work”.

As an example of the application of these principles I was referred to the decision of Judge Playford QC in Hood v Mitie Property Services (Midlands) Ltd and (2) Royal Mail Group Plc. There the Royal Mail as occupier of premises had instructed the first defendant with whom it had a maintenance contract, to carry out the necessary repairs to the roof. The Claimant employee of the first defendant had been instructed by his employers to carry out the work in the course of which he suffered injury in an accident in which he fell through a perspex skylight to a concrete floor below. It was held that Royal Mail could not be liable under the 1996 regulations since it had not had control over the way in which the work was carried out. The Judge reviewed the principles emerging from McCook, and considered that although the obligation to perform the duty provided by the regulations could not be avoided by abdicating responsibility, control in fact had to be shown, not the mere power to control.

In alleged contrast to the present case, Mr Lawson on behalf of the Claimant sought to stress the strong findings in Hood that the Post Office had taken all reasonable steps to satisfy itself that the contractor, Mitie, was competent to do work which included the work in question (see Hood at paragraph 8); that in Hood a formal written and detailed contract had been entered into which in effect handed over all aspects of health and safety, and in particular required the contractor before conducting the work to appoint a competent person to carry out a risk assessment which was to take into account the hazards likely to be encountered on the roof such as “fragile materials” (see Hood paragraph 9); and that there was no evidence in Hood that the Post Office had concerned themselves in any way with the way the contractor carried out the work. I note also the reference in McCook in the passage cited from Hale LJ, to a client who is “contracting with an apparently reputable contractor”.

It is also not in dispute that more than one person can be in control at the same time and indeed more than one person can be found liable for breach of the same regulation (see for example Humphreys v. Nedcon UK Ltd [2004] EWHC 1260 (QB); Munkman on Employers Liability 14^th ed. at para. 19.27).

Although there is no authority on the point, I accept that these same principles on the determination of control should apply to the determination of who has control of a person carrying out the work for the purposes of engaging obligations under the Work at Height Regulations through the application of reg.3 (2)(b) or 3(3)(b).

I turn to the nature of the final basis upon which liability is put in this action, namely under the Construction (Design and Management) Regulations 1994 (“the CDM”).

These regulations which, given the breaches under the other regulations on which the Claimant relies, might have been thought to have had only peripheral relevance to this claim, have in fact played a significant part in the presentation of the claim.

In the first place there is a separate cause of action for breach of statutory duty pleaded by reference to an alleged breach by the Third Defendant of its alleged duty under regulation 10, as a client within the meaning of the Regulations (reg. 2(1)) (“client is any person for whom a project is carried on…”) to ensure that “the construction phase of any project does not start unless a health and safety plan complying with reg. 15(4) has been prepared in respect of that project ”.

In addition a wider submission is made that although as a matter of law only a breach of regulation 10 can give rise to civil liability (see regulation 21), on the evidence the Second Defendant’s husband Stephen Ulph did not have the proper understanding of the overall requirements of the CDM so as to be competent to take on the health and safety role delegated to him from the outset and that even if there was such an understanding, he and the Second Defendant were wholly indifferent to whether the CDM applied and was complied with. This in turn it is submitted should inform the court’s general assessment of the credibility of both the Second Defendant and her husband on their claimed understanding of health and safety responsibilities, and the court’s assessment of whether, as asserted by the Claimant, no-one took proper or effective responsibility for this project of works.

The Defendant denies that regulation 10 applied to these construction works at all because of the exclusionary provisions of reg. 3(2): it does not apply in relation to construction work included in a project where the client has reasonable grounds for believing that (a) the project is not notifiable; and (b) the largest number of persons at work at any one time carrying out construction work included in the project will be or, as the case may be, is, less than 5. Under reg. 2(4)(a) a project is notifiable if the construction phase will be longer than 30 days. Even if regulation 10 did apply, the Defendant denies that the plan in fact produced (the Plan already referred to) did not comply with the requirements of the specified regulation 15(4).

Regulation 15(4) requires in the round that the principal contractor shall take reasonable measures to ensure the plan contains until the end of the construction phase certain features, including arrangements for the project (including where necessary for the management of construction work and monitoring of compliance with the relevant statutory provisions) which will ensure the health and safety of persons at work carrying out the construction work taking account of the risks involved in the construction work.

In any event the Defendant denies that any breach of this obligation under regulation 10 was causative of the Claimant’s accident.

Again the emphasis in the above paragraphs is that of this court.

These are all issues and submissions to which I will return in my conclusions, but in the light of the emphasis put by the Claimant upon the Third Defendant’s obligations under the CDM, I record that in McCook, the court held that any statutory obligation placed on the site owner by virtue of regulation 10 did not on the facts of that case in itself give rise to the requisite control of the work within regulation 4(2) of the Construction Regulations. Judge LJ expressed himself on this question at paragraph 21:

“Accordingly we must proceed on the basis that that a health and safety plan complying with regulation 10 was not provided by the First Defendant either at the start or indeed at any stage of the project, certainly prior to the Claimant’s accident, and this amounted to a breach of regulation 10. In my judgment, Regulation 10 did not create, nor were plans prepared for the purposes of regulation 10 required to create the sort of element of control of the site envisaged by reg. 4(2) …Regulation 4(2) …and regulation 10 of the 1994 regulations are …concerned with different aspects of safety on sites, but they are concerned with distinct aspects of safety …in my judgment a failure to comply Reg 10 …does not of itself create the circumstances of control which are the prerequisite to any duty arising under regulation 4(2)”

I turn to my findings on the questions of fact material to this claim in so far as they have not already been made clear.

I find on the balance of probabilities that the Second Defendant, and through her, the Third Defendant, did know in the week preceding the accident, if not before, that Peter McDonald would be bringing the Claimant on site to assist him as a general labourer and had agreed to and had given authority for, his being brought onto the site. I explain below how I have reached this finding.

The resolution of this question has depended necessarily upon my assessment of Peter McDonald as a witness set against the evidence of the Second Defendant and her husband.

Mr McDonald was in many ways a thoroughly unsatisfactory witness. He had prior to giving oral evidence made three witness statements on behalf of the Claimant and had also given a statement signed by him on the 17^th of March 2010 (with certain pre-typed paragraphs crossed out by him) to the Defendants upon which he was cross examined with leave of the court.

On the question who had given him the instructions to carry out the roof void boarding, although he had been clear in his witness statement of the 18^th of March 2009 that he had been instructed in this regard by the Second Defendant, although he could not remember whether this was by a written list of jobs handed to him or whether she had asked him directly, when it came to his oral evidence he was equivocal and said he could not remember who had given the instruction, although he said it had had to have been either the Second Defendant or Stephen Ulph, He maintained this position of not being able to remember even when being given an opportunity to refresh his memory from that March statement.

However in relation to his obtaining the Second Defendant’s authority to bring someone on site to assist with outstanding labouring tasks, that someone being the Claimant, although his account of the exact words he used to the Second Defendant are not entirely the same throughout this various witness statements (in his first witness statement at para. 16 and 17 he states that “I went to speak to Carole Gilling-Smith and said I knew a labourer who could come on site and help her get everything ready. I said that Andrea would want £60 per day... Carole Gilling-Smith said that was fine and asked me to bring him on site”; in his statement to the Defendants he said at paragraph 36: “on either Tuesday or Wednesday, 2 or 3 May, 2006, I called Carole Gilling-Smith on her mobile telephone, telling her that I needed some assistance with carrying of materials up to the third floor at the Agora and other labouring tasks and I knew of someone who was looking for a job and who would be able to help… She told me that it would be in order to bring him along and that she did not need to meet Mr Tafa first”), Mr McDonald has always been consistent about the fact the Second Defendant had agreed with him that he could bring the Claimant on site. I say this notwithstanding that when confronted with his own telephone records which do not support such calls as mentioned in the latter statement, and the Second Defendant’s evidence that although she was in the clinic on the Thursday ,the day before the accident ,she had been elsewhere on the preceding days of the week, Mr McDonald said that he could not now remember whether he had discussed the Claimant with the Second Defendant directly or by telephone but he was sure this discussion had been before the Thursday (“although not sure about the roof void work”).

I of course have had regard to the contrary evidence on this issue of both the Second Defendant and Stephen Ulph. There is no allegation that Stephen Ulph had authorised the Claimant to be on site. His evidence was that before he would have given any such authority he would have carried out a “risk assessment” upon him as he had at the beginning of the project upon another labourer, one Caven, which is evidenced by a short written assessment dated 4^th of November 2005 (“Works to be undertaken: Labourer . Recommended by (competence check): GCS and SU; known 1+year); Pre-Commencement Risk: “To help Peter McDonald and Sean McDonald. mainly to accept deliveries + move to third floor; hazards identified: as PM – mainly manual handling”). Stephen Ulph’s evidence was that during the discussion with Peter McDonald on site on Tuesday the 2^nd of May concerning the WC works, Mr McDonald had said that he needed help to move a number of sheets of plasterboard to the top floor and to help with cleaning, that he knew someone who was a really good worker who might be available to help if he could not persuade his son Shawn, who had been away from the site sometime, to return and would let him know he found someone. According to Stephen Ulph, Peter McDonald had not come back to him on this. In his oral evidence Peter McDonald said he could not recall this conversation although in one of his written statements, that of the 12^th of May 2010, he did say that he did recall it although he also said “I confirm once again that I agreed with GCS for Andrea to come on to the site.”

I have also had regard to the points made on behalf of the Defendants that there is no evidence that the Second Defendant had ever previously authorised any personnel, that if it were a face to face authorisation that week, it would, on the Second Defendant’s evidence, have had to have been on the Thursday yet there are telephone records of Mr McDonald being in contact with Stephen Ulph during that Thursday and again early on the Friday morning without any suggestion that he mentioned the Claimant to him, and notwithstanding the earlier conversation between them of the 2^nd of May.

Nonetheless what has persuaded me to accept Mr McDonald’s evidence to the extent of my being satisfied that the probabilities are that the Second Defendant prior to the accident had agreed to the Claimant coming on site to assist Mr McDonald in his work, albeit she may not have known the exact identity of the Claimant, are the following features of the evidence.

First I heard evidence from Elizabeth Smith, the Health and Safety Inspector. She was called with leave of the court on behalf of the Claimant and I am of course mindful that her witness statement was dated the 15^th of July 2010, shortly before the commencement of the trial. She had visited the site on the 28^th of June 2006 and had spoken to Peter McDonald. She had visited the Claimant in hospital on the 2^nd of August 2006 and had taken a statement from him. She then on the 12^th of October 2006 had an interview lasting she said about 20 minutes, with the Second Defendant. As a result of these interviews she made short Case Notes Summaries which have been produced. In addition she subsequently made an HSE Investigation Report which includes a “Factual Report” concerning the circumstances of and background to, the accident. In her evidence to the court she confirmed the contents of that Report as correct. Included within the Factual Report is the following:

“Some weeks prior to the incident, Mr McDonald became aware that the IP was unemployed. He had discussed with Mr Tafa the possibility of Mr Tafa working for Dr Gilling-Smith. Mr McDonald told Mr Tafa that he would have to ask ‘his boss’ if Mr Tafa could work with him. On the 4th of May Mr McDonald told Mr Tafa that he could start on the 5^th of May for Dr Gilling-Smith.

Dr Gilling-Smith confirmed that Mr McDonald had asked her permission to employ Mr Tafa to work at the clinic. She stated that she agreed.”

The Second Defendant keenly disputes that she had said anything such thing to Ms Smith and it was fairly put to Ms Smith on her behalf in the course of cross examination that her Report was made some time after their meeting, that the contemporaneous notes made by the Inspector no longer exist, and that the statement that Mr McDonald had sought and obtained her permission as regards the Claimant, does not appear in the case note summaries of the interview with either Mr McDonald or the Second Defendant. Nonetheless, Ms Smith maintained under cross examination that that which she had recorded in her Report concerning the Second Defendant confirming to her that she had agreed to the Claimant working at the clinic, was what the Second Defendant had told her. Overall I found Ms Smith to be an impressive witness and I accept her evidence on this matter. Whatever may be said about the evidence of Peter McDonald who clearly had a vested interest to protect his own position, I am satisfied that Ms Smith was an independent witness with no such interest.

Moreover I have found it instructive to examine the contemporaneous statements of the Second Defendant immediately following the accident, first in her communications with the landlord (Andrew Lambor a director of the First Defendant whose insurance cover she said she believed the Clinic, as tenant, would have the benefit of); secondly in the commentary which she superimposed upon the video recording which she made of the accident site on the Monday following the accident on the Friday; thirdly in the contents of the accident investigation report which she commissioned from an entity called the “Quoin Consultancy” (“ Quoin”). In none of these is it suggested that the Claimant was a person who had not had any permission from the Clinic to be on site; in none of these is it suggested that the Clinic had no knowledge that the Claimant was to be brought on site.

In her email to Mr Lambor of the 11^th of May 2006 the Second Defendant wrote this:

“I am just writing to confirm our telephone conversation on Monday. Unfortunately a workman had a fall on Friday 5^th of May in our unit and had to be taken to hospital, The exact extent of his injuries remains to be confirmed…You agreed to inform the insurance company and I have employed a Health and Safety company to complete a report action. When they inspected the site of the accident on Monday they agreed we had appropriate Health and Safety measures in place should continue with the refurbishment as previously”

Remarkably, the Second Defendant in oral evidence maintained that she would nonetheless have mentioned this lack of authority for the Claimant to be on site, to Mr Lambor in the telephone call preceding the email, albeit she omitted this from the email. I regard it as wholly implausible that if this had been the case, she would have omitted this matter from the email, given its potential importance on the need for insurance cover and especially as the Second Defendant said she had been checking out the insurance position with her father the previous weekend.

I do not set out the entirety of the video commentary. Suffice it to say that nothing in it suggests that the Second Defendant regarded the Claimant as having had no business being on the site or indeed in having no business in carrying out the work in the roof void. Indeed the whole tenor of the commentary is that this was work properly being carried out following an induction process, with proper safety measures in place. Thus:

“I am standing now at the top of the ladder...this is where the worker was...when the accident happened. He had a hand-rail...which has been in place all the way through. We’re standing on the boarding which is used by the electricians...air conditioning people...he fell through where the four suspended ties are missing shown here and he was given...information during his induction that these were suspended ceilings and should not be….putting weight on them...the area he had to work in was boarded to quite a large area going all the way round and there was certainly plenty of lighting, and he simply required his electric saw to cut down and trim any excess.”

The Second Defendant’s evidence was that the information she had set out in the video relating to the Claimant being given an induction, was based upon that which her husband told her Mr McDonald had told him. If – as the Defendants maintain – the set-up was that Mr McDonald would be expected to obtain prior permission before bringing any worker on site to assist him, not least because Mr McDonald would expect the Clinic to pay the invoice in respect of the worker’s labour, then it is beyond belief in my judgment that in the course of that commentary the Second Defendant would not have made the point that as far as she and the Clinic were concerned, the Claimant had no business being on the site and no prior permission had been given, if in truth that was the position.

A similar observation is to be made about the information given to Quoin about the circumstances of the accident as reflected in the history given in their Report, which is devoid of a suggestion that the Claimant was an unauthorised worker. The Second Defendant conceded that she had not told Quoin of any such lack of authority.

It is clear to me that that it was only much later when the Second Defendant realised that there might be some personal responsibility placed upon her and/or the Third Defendant for the accident, that the Second Defendant began to assert that the Claimant was on site ,and had been engaged by Mr McDonald, without her knowledge. This inevitably in my judgment undermines the credibility of her evidence on this issue.

It is also highly unlikely in my judgment that Peter McDonald would unilaterally bring someone on site whose labour he expected the Clinic to pay for, without obtaining prior permission and agreement. The system operated by Mr McDonald when his son Shawn was assisting him at the site, was to produce a weekly invoice under his title which set out the cost of the labour of himself at £125 per day, the cost of the labour of Shawn at £60 per day and the cost of his materials. If he was contemplating bringing the Claimant on site, he would want to know in advance that the Claimant’s labour would equally be paid for by the Clinic.

There is moreover collateral evidence supporting the proposition that it was the Second Defendant from whom Peter McDonald obtained that permission and agreement in the evidence from the Claimant’s partner, Colleen McArdle. She confirmed that which the Claimant had told the court, namely that it was at a social gathering at Bingo, involving herself and the Claimant, together with Mr McDonald and her friend Sheila, his sister, some 2 weeks or 10 days before the accident, that Mr McDonald, upon being told that the Claimant was looking for work, had said he would ask “his boss” if “she” needed anyone else on site; and that it was on the Thursday before the accident, the 4^th of May, that Peter McDonald had telephoned to tell the Claimant that he could start work the very next morning. That of course was the very day that the Second Defendant agrees she was in the clinic that week. Colleen said she phoned Peter McDonald that evening who told her that the Claimant would be paid £60 per day and that he would pick him up the following morning. He had had warned her to tell the Claimant that he should not get too excited about the job because there was only about 10 days or so work available, just in order to help finish off various odd jobs at the time.

I have no reason to doubt the evidence of Colleen McArdle on these matters, which evidence is entirely consistent with Peter McDonald having obtained in advance the permission of the Second Defendant to bring the Claimant on site, and to be paid at a daily rate of £60.

It is for all these reasons, that I find on the balance of probabilities that the Second Defendant, and through her, the Third Defendant, did know in the week preceding the accident, if not before, that Mr McDonald would be bringing the Claimant on site to assist him as a general labourer and had agreed to and given authority for this. I similarly find that absent such agreement and authorisation of the Second Defendant, the Claimant would not have been brought on site.

I do not find however that the Second Defendant and hence the Third Defendant had any express prior knowledge that the Claimant would be set the task by Mr McDonald of working at height constructing the walkway.

This leads onto my consideration of the issue whether Peter McDonald was instructed by the Second Defendant – or anyone else on behalf of the Third Defendant – expressly to carry out the roof void walkway works.

I find it impossible to find that Peter McDonald was given the express instruction by the Second Defendant to carry out the works upon which the Claimant was engaged at the time of his accident. His oral evidence on this issue was just too equivocal as already explained. Moreover on this question the Second Defendant undoubtedly consistently told the Health and Safety Inspector, Ms Smith, that no such instructions had been given. Stephen Ulph’s evidence was that if such instructions had been given he would have been involved in discussing how the works should be carried out, which he was not.

I also find it impossible to accept, as asserted by Peter McDonald, that in the weeks leading up to the accident the only person giving him instructions on construction works was the Second Defendant. Peter McDonald’s evidence was that although at the beginning of the project he had seen a lot of Stephen Ulph in the more recent weeks it was only the Second Defendant who had been on site giving him instructions. In some respects I accept this evidence in so far as he was making the point that in the weeks prior to the accident he was seeing a lot more of the Second Defendant. The Second Defendant herself says that as from the end of April she had been visiting the clinic site twice a week using one of the completed the consultation rooms as an office because of the advance state of the works. It does appear that as at the beginning of May the majority of the construction works had been completed and what principally remained was the sort of incidental sundry works referred to above in which the Second Defendant herself accepts she was directly involved. In her first witness statement the Second Defendant says (paragraph 12) that in the time leading up to the accident the only contractor working regularly at the clinic was Peter McDonald. In her supplementary statement she seeks to explain away the section in the HSE Report saying that she gave Peter McDonald instructions on a day to day basis, by suggesting that the Inspector drew this conclusion from the circumstances prevailing when she visited the clinic to interview Peter McDonald in June 2006 “since at this time I was the person giving him most of his instructions since he was only carrying out sundry carpentry and odd jobs by then as the refurbishment was complete, e.g. fitting picture rails, fitting splash backs to the clinical sinks to make them Healthcare Commission compliant.”

My conclusion is that in all likelihood the Second Defendant was more involved in giving instructions to Peter McDonald in the weeks prior to the accident than she was prepared to concede. On the other hand the evidence is compelling that on more major works of construction it was Stephen Ulph who would get himself involved in discussing the works with Peter McDonald and involving himself in the way the works should be carried out. The most obvious example not long before the accident, concerns the alterations to the location of the disabled WC to which reference has already been made and which is evidenced by the additional entry made by Stephen Ulph in the risk assessment form. As regards the alterations to the WC, Peter McDonald did not really dispute that his discussions had been with Stephen Ulph. The evidence of Mr Perrin, of the air conditioning contractors Air Temp referred to below, was that he had become involved in the design brief for the clinic through Stephen Ulph who was introduced to him as the project manager.

On the other hand I cannot accept that Peter McDonald himself unilaterally decided for himself that the boarding of the roof void to make a means of access to the air conditioning units installed there, should be part of the Third Defendant’s project of works, not least because, as already explained, the Defendants concede that there was a need and intention to construct such a walkway, albeit not at that particular time. There is compelling evidence that on the 4th of May the Second Defendant herself had been informed by an air conditioning engineer that such a means of access would be required and it is a remarkable coincidence that the next day Peter McDonald embarked upon that work. Ms Smith in her report records the Second Defendant as saying this:

“Dr Gilling-Smith states that she did not instruct Mr McDonald to undertake the fittings of the floorboards to the ceiling. She states that on the 4th May the Airconditioning Contractors were on site and informed Mr McDonald directly that the floorboards needed fitting and Mr McDonald took it upon himself to undertake the job (without consulting her as to the timescales for the work and without agreeing costs etc).”

The Second Defendant in her supplementary witness statement concedes that she had told the Inspector that it had occurred to her that the air conditioning contractor who was present at the clinic on 4^th May “might have mentioned something directly to PM about boarding out the loft space although she says this was pure speculation on her part. (“I had been at the clinic that day and the contractor had come into my office to say he had finished his checks and mentioned that when the unit at the rear was due for commissioning it would be important to have some boarding in place in the loft to make it accessible. I told her that I had not relayed that conversation to Peter or anyone else before the accident happened. It was however possible that this contractor and PM had spoken to each other, maybe when having a tea break, and the contractor might have mentioned this directly to PM”). No doubt the Second Defendant was the source of the statement in the Quoin report under “Brief Description of events leading to the accident” that “at the request of services engineers on a previous site visit, it was proposed to extend the timber boarding to an existing walkway within the roof space. This would improve safe access to mechanical plant for future servicing purposes”.

I am not in a position to find with any certainty how Peter McDonald came to the understanding that a walkway was required but come to that understanding he clearly did and it cannot have been in my judgment simply an intelligent guess on his part. He says that it was through instructions given by either the Second Defendant or Stephen Ulph but cannot now say who and it is noteworthy in his statement to the Defendants he said “I do not remember any specific conversation with either Stephen Ulph or Carole Gilling-Smith about the timetable for the works”. He denies being informed of these works by any other contractor and the evidence produced by the Defendants from the various contractors, including Mr Wade, the air conditioning engineer who attended on the 4^th of May, does not suggest that he was. Mr Wade says he recalls “speaking to the clinic’s builder who acted as site representative, Peter McDonald… I recall speaking to Peter about the need for a service hatch… (but) I do not recall any conversation with Peter McDonald about the need for access to the other unit to the other unit above the laboratory area… I would have been aware that there was no urgent need for access to this unit which would only need to be inspected at its first service some 6 months after commissioning”. Oddly Mr Wade says he does not believe he spoke to the Second Defendant that day. The only other evidence of note on this issue came from the witness statement of Mr Perrin, a project manager for the company, Airtemp AC Ltd, who had been given the design brief for the air conditioning system at the clinic. As regards the unit in the loft space he said he did “not recall any specific discussion with our clients about the needs for access to this unit for ...subsequent servicing” but although the issue was never discussed he accepted “to assist the service engineer a boarded walkway from the hatch above the central corridor of the Clinic was going to be useful…by the time the first service of the unit was undertaken 6 months or so after the commissioning”.

Although I am unable to find that the Second Defendant, or anyone on behalf of the Third Defendant, gave any express instructions to Peter McDonald in relation to the roof void work, I am given the evidence I have rehearsed, nonetheless satisfied that the Second Defendant, and through her the Third Defendant, was aware at least from the 4^th of May that the work would be required at some stage and it was foreseeable to her and hence the Third Defendant that it would be carpentry work to be undertaken at height by Peter McDonald. Moreover in my judgment these were access route works in the roof void across the timber joisted structure which were foreseeable to the Defendants from the outset of the project as a necessary part of the project works, involving as they did the installation of the air conditioning units in the position they were to which access would be required . I do not accept that in deciding to construct the walkway as such, Peter McDonald was on a frolic of his own.

As to how Peter McDonald came to make the decision to carry out the walkway work on the day he did however, there is compelling evidence that this was because his son Shawn had turned up unexpectedly on the day Peter McDonald had brought the Claimant on site to assist him in more menial tasks of moving material to the third floor and general tidying up, and he, Peter McDonald, was put in the position of having to find work for both the Claimant and Shawn to do. Mr McDonald in oral evidence did not really dispute that this had been the reason why he decided that the two of them should set about the construction of the walkway. On the day itself it does appear a spur of the moment decision. The fact remains however that somehow Mr McDonald already had on site the necessary pre-cut tongue and groove boards suggesting some preplanning on his part. This aspect remains a mystery given such invoices as have been located, evidencing purchasing of materials by Peter McDonald on the 26^th of April and the 3^rd of May, do not support the acquisition of such a quantity of boards on those occasions. The ladder Peter McDonald used to give the Claimant access to the roof void appears to have been borrowed from another contractor, Jacksons.

I do not however find that the Claimant, although on the site with the agreement and authority of the Second Defendant and therefore of the Third Defendant was there as an employee of the Second Defendant or the Third Defendant. My reasoning is as follows.

As I have indicated, Peter McDonald was a self employed sole trader carpenter and there is no allegation that he was an employee of the Defendants. I have already explained that the system operated by Mr McDonald when his son Shawn was assisting him at the site, was to produce a weekly invoice for a total sum made up of the cost of the labour of himself at £125 per day, the cost of the labour of Shawn at £60 per day, and the cost of his materials, which sum if agreed – usually by Stephen Ulph – would then be paid by the Third Defendant. It is true that Peter McDonald did not add any profit margin to the cost of his son’s labour and I have of course had regard to the well known principles set out in Lane v. Shire Roofing Company (Oxford) Ltd [1995] IRLR 495 relevant to the determination of whether a worker is an employee or an independent contractor. Peter McDonald himself gave evidence in his third witness statement of March 2010 in the following terms under the heading ‘Invoices’:

“37.

Andrea (a reference to the Claimant) and I never discussed invoicing prior to the first day on the site and he had his accident before anything was discussed. I expected Andrea to be paid by the Clinic. It was never my intention to include him on one of my invoices.

38.

I have never employed anyone in all my time as a carpenter, and only used to include Shawn on my invoices because at the time he did not have a bank account, but I have never employed Shawn. He charged £60 per day for his labour which I would add to my invoices and then give all this money to him. I did not profit from him and he has always been self employed”.

I have to bear in mind when considering Mr McDonald’s evidence on this issue, his self interest to protect his own position and that of the Claimant for whom no doubt he carries the weight of the serious physical consequences to the Claimant arising out the work he asked him to do in the circumstances he did, without the benefit of any insurance cover himself. Similar considerations must apply to the weight to be attached to the belief of the Claimant communicated to the Inspector, Elizabeth Smith, in that interview at hospital in August 2006, that he “was employed by the Agora Clinic” (see Case Note of interview in the HSE papers) at a time when he had already been visited by Peter McDonald several times.

My conclusion is that the Claimant at the material time was an employee of Peter McDonald rather than that of the Defendants. McDonald was the one who set him the tasks to do on the site and he was there to assist McDonald in his work as a self employed trader, albeit with the agreement and authority of the Second Defendant and hence the Third Defendant.

This said, I have no doubt that the Third Defendant, although not an employer, retained and had a factual control over the way works were being carried out by Peter McDonald on site for the purposes of reg. 4(2) of the Construction Regulations (“the CR”) which would include any work at height in the roof void, and overPeter McDonald himself for the purposes of reg. 3(3)(b) of the Work at Height Regulations (“the WHR”).

Equally I am satisfied that the Third Defendant had like control over the roof void works being carried out by the Claimantat the time of the accident, given they were still works being carried out by Peter McDonald, albeit through the Claimant,andover the Claimant himselffor these purposes, given as I have found, theThird Defendant had through the Second Defendant authorised the Claimant to be on site and without which authority he would not have been brought on site.

Moreover I am satisfied that the Third Defendant had the necessary extent of control for the purposes of being under an obligation to meet the requirements of the specifically pleaded regulations.

The Third Defendant’s own case is in effect that it had factual control over the way construction work was done on site. Its own case is that Peter McDonald would be expected to act on instructions and that as regards building works on site it would be expect to be involved in deciding how the work should be carried out – albeit the Second Defendant insists that the Third Defendant would do this through Stephen Ulph as project manager rather than herself. The so called “pre-commencement risk assessment” on Peter McDonald completed by Stephen Ulph contemplated that he would carry out work at height and I have already found that the work to build the walkway in the roof void was work which the Third Defendant through the Second Defendant knew was required to be done at some stage. I repeat in this context my finding that although I am unable to find that the Second Defendant, or anyone on behalf of the Third Defendant, gave any express instructions to Peter McDonald to carry out the particular work on the day he did , nonetheless the Second Defendant, and through her the Third Defendant, was aware prior to the accident that the work would be required at some stage and it was foreseeable to her and hence the Third Defendant that it would be carpentry work to be undertaken at height by Peter McDonald. As was submitted on behalf of the Claimant, this further task was in many ways simply a follow on from what Peter McDonald had already done in constructing the timber joist structure itself. This was moreover, as I have found, from the outset of the project foreseeably necessary work to be carried out at height.

The Third Defendant cannot be said in my judgment, even on its own case, as regards any works carried out by Peter McDonald, to be a mere occupier of a site who had by contract handed over all control on how the works on site were to be carried out, and the responsibility for all aspects of safety in relation to them, to an independent third party, i.e. Mr McDonald, such as was the position of the Post Office in Hood. This is quite apart from the fact which I have already found, that there was no basis for anyone to conclude that Peter McDonald had the necessary competence to be in charge of the organisation and supervision of work at height.

Given as I have found, that the Third Defendant had through the Second Defendant agreed to and authorised the Claimant coming on site to assist Peter McDonald in his works and without which authority he would not have been brought onto the site, I am driven to the like conclusion that the Third Defendant had like factual control over the works being carried out by the Claimant, given they were still works being carried out by Mr McDonald albeit through the Claimant, and over the Claimant himself.

Given the awareness and foreseeability of the need for the works prior to the accident which I have found possessed by the Second Defendant and hence by the Third Defendant and the foreseeability of their need from the outset of the project, I regard it as irrelevant for these purposes that she did not know, and hence the Third Defendant did not know, that the roof void works were to be carried out on the day they were or that the Claimant was to be put by Peter McDonald to the particular task of carrying out such particular works on his behalf. Moreover it must be to nothing that Peter McDonald himself also had the requisite control since as already explained more than one person can be in control at the same time.