Introduction
Mark Bailey of our Complex Injury team, instructed by John Rae at NFU Mutual, was successful in a recent trial at the High Court in Sheffield in the case of which a personal injury claim by the claimant Robert Lewin (C), a contractor who had been engaged by NFU Mutual’s policyholder, Nicholas Gray (D), was dismissed: Lewin v Gray [2023] EWHC 112 (KB).
This decision in is an important one both generally, in that it is another example of the far-reaching effect of s69 of the Enterprise and Regulatory Reform Act 2013 (ERRA), and specifically in that the court answered the question whether a breach of an obligation set out in the Construction (Design and Management) Regulations 2015 (the CDM Regulations) can provide a basis for an action in negligence.
The accident
C had carried out various works on the farm as a contractor for D’s late father and continued to carry out similar work after D took over the running of the farm. On the day of the accident in 2018 C was working with his son in installing guttering on a barn next to the farm house. One part of the job had been straightforward but, because the gap between the gable end of the farm house and the edges of the roof sheets which were to be replaced was very narrow, it was awkward to move the guttering into place. C decided to carry the task out while standing on the fragile roof, using crawl boards to spread his weight. It was while he was reaching for a length of guttering being proffered by his son that C’s foot slipped off the board on which he was standing and he fell through the roof onto the ground, suffering catastrophic injuries which rendered him paraplegic.
The case
C alleged that D was at least partially to blame for the accident. Within the allegations of negligence were allegations of breaches of obligations which had been imposed by statute. C relied on the Occupier’s Liability Act 1957, the Work at Height Regulations 2005 but mainly the provisions of the CDM Regulations as evidence of negligence. The judge identified three “core allegations” in his judgment:
- Selection of a suitable contractor;
- Supervision of the contractor; and
- Ensuring that the contractor had completed a Construction Phase Plan.
Neither C nor D had heard of the CDM Regulations before the accident and it was obvious that neither had complied with their respective obligations. The central question for the court at the trial was whether the failure by D to comply with his obligations gave rise to a cause of action.
The outcome
The first two elements of the core allegations were not pursued at the trial. As the judge said, they were not tenable. The allegation under the Occupier’s Liability Act 1957 also fell away. It was reasonable for D to have expected C to appreciate and guard against the risks of performing the guttering work.
The case boiled down to two issues:
- Did D owe a duty of care in tort to ensure that C produced a Construction Phase Plan?
- If so, did failure to discharge that duty cause or materially contribute to C’s accident?
In many ways the key to this case is contained in s.47 of the Health and Safety at Work etc Act 1974 (HSW), as amended by s.69 of ERRA, which provides that:
“Breach of a duty imposed by a statutory instrument containing (whether alone or with other provision) health and safety regulations shall not be actionable except to the extent that regulations under this section so provide.”
On the face of it, said the judge, breach of any regulations did not give rise to a cause of action. Nonetheless, counsel for C argued that D owed C duties at common law, in tort, similar to those imposed by the regulations.
It was common ground that D was a commercial client for the purposes of the CDM Regulations. Reg. 4(5) provides, therefore, that it was D’s obligation to make sure that a construction phase plan was drawn up by C as the contractor. C argued that had D made him complete such a plan this, in hindsight, would have made him consider whether he should have asked for D’s JCB which had been fitted with a man-cage to be positioned under where C was working so as to act as a safety crash deck (i.e. to break his fall and prevent serious injury).
C’s counsel argued, perhaps surprisingly, that even though D had not even been charged with a criminal offence in connection with a breach of the CDM Regulations, the provisions of s.11 of the Civil Evidence Act 1968 applied as he interpreted it, i.e. the fact of a conviction can be admitted as evidence to prove negligence. In fact, as the judge pointed out, s.11 actually provides that the fact of a conviction can be admitted in evidence to prove that the offence was committed. Had D been prosecuted and convicted of such an offence, that could have been adduced to prove such. The point here is that, of course, there was no charge and no conviction.
There could be no justification for imposing a common law duty on D for these failures of obligation under the CDM Regulations. The authorities had decided not to begin a prosecution and it was not fair or reasonable, said the court, to override the s.47 HSW provision. The judge said, in terms:
“…a regulatory requirement for the client of building works to require the contractor to provide a document which is itself a creature of a specific Regulation cannot, in my judgment, be equated with a duty at common law.”
Even if the court was wrong about this, there was nothing to suggest that even had C produced a plan, having been asked to by D, he would have thought to ask for the JCB to be placed under where he was working.
Though academic, the court did indicate that liability would have been apportioned on a 75/25 basis in favour of D, had a duty of care been established.
Points to consider
- The important point this case emphasises is that the CDM Regulations create obligations on the owner of a business or property but these obligations do not translate into a common law duty of care. The fact that the Regulations have been breached does not mean liability attaches unless such a breach is negligent.
- In this case a failure by D to ensure that a construction phase plan was undertaken by C did not give rise to a duty of care especially when the person whose duty it was to write the plan was the victim himself.
- A criminal conviction can be evidence of negligence but D was not convicted in this case. Even if D had been charged and convicted it did not mean that an action in negligence would inevitably have succeeded. Not all breaches of the CDM Regulations give rise to a cause of action in negligence.
- This decision moves us a further step away from the old position that the breach of a regulation, although it might not give rise to a civil liability, is indicative of negligence. As s.69 of ERRA confirms that a simple regulatory breach does not give rise to liability, our view was that we had a good defence to an action based on the premise that such a breach does indicate negligence and in this the judge agreed with us.
If you wish to discuss this further, please feel free to get in contact with our Complex Injury Team at DAC Beachcroft Claims Limited.
