Builder liability: a building supervision obligation?

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Builder liability: a building supervision obligation?

Today’s Supreme Court ruling in Moreira v Moran t / a ACH Joinery and Building Contractors & Ors provides welcome guidance on what to expect from small business owners regarding independent third party supervision of construction work on their own premises. DWF’s David Woolley and James Rowley QC of Byrom Street Chambers acted on behalf of the occupiers.

Moreira v Moran t / a ACH Carpentry and Construction Company & Ors [2021] EWHC 1800 (QB) (July 01, 2021)

background

The plaintiff, a worker, sustained a serious head injury when he fell from an unguarded mezzanine to a concrete floor below in a premises rented from Prolakeballs.

The Prolakeballs business sells remanufactured golf balls, known as lake balls. The balls were bought in bulk, washed, sorted and packaged for resale. They concluded an agreement with Defendant 1, a self-employed carpenter and builder, to build a timber office on a mezzanine floor on their premises. In the months before the accident, the first defendant was partly busy with the second defendant, who is also a self-employed builder. The second defendant, who had agreed to support the first defendant in this project, again hired the plaintiff as a worker.

The office was supposed to be entered on the morning of the accident; the shell had been built the week before. The first task was to move around 30 MDF panels from the ground floor to the mezzanine. The first and second defendants decided to dump the boards and stack them on an unguarded section of the mezzanine. The unloading process took 30 minutes, with the first defendant handing boards from his van to the plaintiff, and the plaintiff then handing each board from the ground floor to the second defendant, who stood on the unguarded mezzanine. The second defendant stacked the planks against the back wall of the unguarded mezzanine and, in the next step, took them to the area where the office was being built. Previously, the second defendant removed a guardrail that had previously prevented access from the guarded mezzanine floor on which the office was built to the unguarded mezzanine floor. When moving the chambers, the plaintiff took over the full weight of the chambers, while the second defendant pushed out individual boards. The plaintiff was unable to cope with the weight and fell from the edge of the unguarded mezzanine.

The accident was observed by a worker from Prolakeballs, who at the time was cleaning and sorting golf balls in the ground floor area on the ground floor. He had seen the accident and the handover of the boards beforehand. One of the two directors of Prolakeballs, who had moved around the premises that morning and been on the first floor at different times, stated that he had not seen what the second defendant and the plaintiff had done, and neither did hadn’t seen them lift the boards onto the unguarded mezzanine.

The director was asked about the inspection and confirmed that he had control over where the men worked, but not how they did their job, as this would have been equated with surveillance. He accepted that he had the ability to stop her if her particular way of doing the job was dangerous.

Results

Mr David Allan QC, serving as a judge on the High Court, noted that the decision to work on the section of the mezzanine with an unguarded ledge presented an obvious risk of fall and serious injury, so prior to any work being done a barrier should be attached to it. It is evident that the judge had no difficulty finding both the first and second defendants a breach of their duty of care towards the plaintiff because they did not provide a safe job and system of work. Both the first and second defendants were negligently guilty of what caused the accident.

The judge admitted that the director of Prolakeballs was unaware that the guardrail, which previously prevented access to the mezzanine floor, had not been removed, or was even intended to be removed, until after the accident. The director was shown to be unaware of the manner in which the MDF panels were transferred to the unguarded mezzanine floor and there was no evidence to contradict this. He didn’t notice anything that prompted him to intervene in the work. The judge accepted that the first defendant appeared to the director of Prolakeballs, who had no construction experience, to be a reasonably competent contractor.

He found that the hazard resulted from the static condition of the premises and that the Occupiers’ Liability Act 1957 therefore applied. Without the decision of Defendants 1 and 2 to work on the unguarded section of the mezzanine, however, no danger would have arisen. When examining the question of whether Prolakeballs had committed a violation as a squatter, the judge emphasized that the railing, which was intended to prevent access to this section of the mezzanine, had been bypassed by the plaintiff and the second defendant without the knowledge of the squatters. The judge emphasized:

“[e]even if you move between the different parts of the factory [the director] Having seen the workers transporting MDF panels to the unguarded mezzanine or from that mezzanine to the area where the office was to be built, he had entrusted the work to skilled craftsmen. Section 2 (3) (b) of the 1957 Act provides that an occupier can expect a person, in the exercise of their calling, to recognize and protect themselves from any special risks normally associated with them, provided that the occupier allows him to do so leaves the freedom to do so. [The director] had no knowledge of construction work nor had [Prolakeballs’ worker]who was witness to what the men did. You could rightly assume that they were skilled workers who would protect against obvious dangers. Under these circumstances there is no violation of the usual duty of care of. in front [Prolakeballs] to the plaintiff. “

The judge referred to the Ferguson decisions [1987] 1 WLR 1553 and Fairchild [2002] 1 WLR 1052 by the House of Lords of or Court of Appeal, who consider that there might be circumstances in which an occupier would be a common offender:

“This can happen if the tenant is a major company with a full-time security officer who oversees work on the site through independent contractors. [Prolakeballs] was a small company with two full-time employees, one of whom was [the director], and some part-time workers. None of [Prolakeballs’] Workers had skills in carpentry or construction. One wonders whether under these circumstances [Prolakeballs] owes a duty of care [the claimant] To recognize that the workplace and the work system were unsafe, the answer must be no. [Prolakeballs] was not an accomplice in relation to the accident [the claimant]. I therefore come to the conclusion that no liability for [Prolakeballs] for this accident. “

comment

The judgment recognizes that small business owners are not required to oversee construction work on their property when hiring independent contractors, provided those independent contractors appear to be reasonably competent. The obligation to supervise the work or to hire a competent person to supervise the work probably only applies to essential companies and / or companies that have specialist knowledge of the work to be carried out. This decision will undoubtedly be a welcome relief for small business owners and insurers.

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