Failure to provide a construction phase plan in breach of clause 4 of the Construction (Design and Management) Regulations 2015 did not constitute breach of an occupier’s duty under section 2 of the Occupiers Liability Act 1957.
In Lewin v Gray [2023] EWHC 112 the High Court has dismissed a claim for damages for personal injuries sustained by the claimant builder when he fell through the roof of a barn owned by the defendant farmer while installing guttering.
The claimant was an experienced builder who was familiar with the defendant’s farm having carried out work for his father for many years. The defendant asked the claimant to replace the leaking guttering on the barn adjacent to the farmhouse. Both parties were aware of the fragility of the roof of the barn. Save for some minor enquiries the defendant did not ask the claimant how he was going to do the job. The accident occurred when the claimant was standing to pull guttering through a tight gap between the barn and the farmhouse and lost his balance.
An occupier of premises owes a duty to take such care as in all the circumstances of the case is reasonable to see that a visitor will be reasonably safe using the premises for the purposes for which he is invited or permitted to be there under section 2 of the 1957 Act.
The defendant was a commercial client for the purpose of the 2015 regulations. He was obliged under regulation 4 to ensure that a construction phase plan was drawn up by the claimant contractor before work commenced.
The claimant argued that, had he been requested to provide a plan, he would have asked the defendant to position equipment to provide a safety crash deck – as had happened during works carried out for the defendant’s father.
The court found that it was reasonable for the defendant to expect that the claimant would appreciate and guard against risks inherent in performing the guttering work for the purposes of the 1957 Act. The defendant admitted breach of the 2015 regulations but was not prosecuted and the court saw no reason for imposing civil liability in tort.
Both parties were self-employed. The defendant had only recently taken over the farm following his father’s death and the claimant was the older and far more experienced man. The court was not satisfied that, if required to produce a construction phase plan, the claimant would have asked the defendant to provide a crash deck.
Louise Clark is a property law consultant and mediator
