First respondent electrician employed by second respondent independent contractor working at warehouse – First respondent suffering serious injuries when struck by reach truck driven by warehouse employee — Court finding second respondent liable for failure to provide safe system of work or to give safe operational instructions — Court finding appellant warehouse owner in breach of statutory duty to visiting electrician — Whether appellant having “control” of warehouse — Whether appellant owing first respondent statutory duty to ensure safe circulation of pedestrian and vehicles – Whether appellant owing common law duty of care — Whether appellant in breach of duty — Whether first respondent contributorily negligent – Appeal dismissed
The appellant (the first defendant in the court below) owned and operated a warehouse. The second respondent (the second defendant in the court below), an independent contractor, was responsible for maintaining electrical items at the warehouse. The first respondent electrician (the claimant in the court below) was employed by the second respondent. He was hit by a reach truck whilst carrying out electrical work inside the warehouse and suffered serious injuries. He argued that both the appellant and the second respondent were responsible for his injuries and brought a claim for damages against them and their insurers. Both parties denied liability.
The judge at first instance found that the appellant had breached its statutory duty under regulation 17 of the Workplace (Health, Safety and Welfare) Regulations 1992 (SI 1992/3004). The appellant controlled the warehouse for the purposes of regulation 4 of the 1992 Regulations, and was therefore required to ensure compliance with the regulations. That control extended to the second respondent’s employees while they worked at the warehouse and triggered the operation of regulation 17, which required every workplace to be organised in such a way that pedestrians and vehicles could circulate safely.
The judge also found that the second respondent, as the first respondent’s employer, had in breached its duty of care by not providing a safe system of work or safe operational instructions. The judge attributed 60% of the liability to the appellant and 40% to the second respondent. A deduction of 25% was made for the first respondent’s contributory negligence. The appellant appealed, contending that the duty under regulation 17 was owed only to its own employees and not to those of contractors, such as the first respondent.
Held: The appeal was dismissed.
Since the second respondent was an independent contractor engaged to carry out electrical works at the appellant’s warehouse, it, not the appellant, was obliged to instruct its electricians in the execution of that work. However, that did not mean that the second respondent had sole control over the first respondent’s activities in the warehouse or that the appellant exercised no control. The warehouse was a large building, with vehicles traversing aisles and many operations taking place every day and night. Many people had reason to be in the warehouse, some being employed by the appellant and others employed by outside contractors. It was essential that rules were in place to maintain everybody’s safety.
Regulation 4(2)(c) limited the responsibility of the workplace owner or occupier to matters in respect of which it was, or should have been competent to give instructions to visiting contractors and their employees. Regulations 4(2) and 17 imposed on the appellant statutory duty to the first respondent to ensure the proper separation of vehicles and pedestrians in the warehouse. The appellant had breached that statutory duty in that it had permitted the first respondent to enter narrow aisles where reach trucks were or might have been operating. It also ought to have instructed the first respondent to shut off any such aisle after entering it. It had failed to do so and had allowed instead the first respondent to walk along fire routes and entering unprotected aisles.
At common law, the appellant had been responsible for co-ordinating the activities in the warehouse and ensuring that its employees and those of external contractors did not come into collision and, in particular, that pedestrians and vehicles could circulate safely. The appellant accordingly owed a duty of care to the first respondent at common law that was concurrent with its statutory duty. Since the second respondent was a bona fide operator, the appellant had been entitled to assume that it had given proper instruction to its employees, including the first respondent. Nevertheless, the appellant was not absolved from its responsibility to ensure safe co-ordination between the activities and movements of all individuals working in the warehouse. The judge’s decision on apportionment would therefore be upheld.
Lawrence West QC (instructed by Weightmans LLP, of Leicester) appeared for the appellant; Bruce Silvester and Kate Balmer (instructed by Irwin Mitchell LLP, of Birmingham) appeared for the first respondent; Richard Moat (instructed by Hugh James Solicitors, of Cardiff) appeared for the second respondent.
Eileen O’Grady, barrister
