PROVING THINGS 247: A NON-CONVICTION CANNOT IMPOSE A CIVIL DUTY OF CARE: CLAIMANT FAILS IN PERSONAL INJURY ACTION

In Lewin v Gray [2023] EWHC 112 (KB) HHJ Robinson (sitting as a Judge of the High Court) decided the issue of liability against the claimant.  The case involved questions relating to the duty of care and the impact of s.69 of the Enterprise and Regulatory Reform Act 2013.

” Benefit of hindsight does not, in this case, translate into probability of a different outcome.”

THE CASE

The claimant, an experienced roofer, suffered serious injury when he fell through the roof of the defendant’s barn.  He brought an action in negligence.   The claimant relied on the provisions of the Occupiers’ Liability Act 1957 and also the failure by the defendant to request a “construction phase plan” from the defendant.  The claimant argued that the defendant could have been convicted for failing to obtain the construction phase plan. However no prosecution had, in fact taken place. The judge held that the failure to request the plan did not give rise to a common law duty, nor was it negligent.  Further the claimant failed to establish that the failure would have made any difference to his actions. Causation was not established.

THE JUDGMENT ON LIABILITY

The judge set out the legal arguments and his findings of fact in detail.

Discussion

1. 1. Criticism of the Defendant concerning his selection of the Claimant as a competent contractor and the failure by the Defendant to supervise the Claimant were, rightly in my judgment, not pursued. They were not tenable.

1. 1. The Claimant was very experienced, knew the farm, and had performed roof work without incident in the past. He was the ideal choice of contractor for this job. Similarly, it would, I am sure, have been considered an impertinence by the Claimant for the Defendant to have purported to supervise the work of the Claimant.

1. 1. The duty owed by the Defendant to the Claimant under section 2(2) of the Occupiers Liability Act 1957 is:

“to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier.”

1. 1. In this regard Section 2(3)(b) of the Act is highly relevant:

“(3) The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases—

…

(b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.”

1. 1. It was obviously reasonable for the Defendant to expect that the Claimant, for the purposes of the 1957 Act, would appreciate and guard against risks inherent in performing the guttering work.

1. 1. In reality that leaves the allegation arising from the failure on the part of the Defendant to request a Construction Phase Plan from the Claimant.

1. 1. In my judgment the critical issues for discussion are:

(1) Did the Defendant owe a duty of care in tort to ensure that the Claimant produce a Construction Phase Plan? If so

(2) Did failure to discharge that duty cause or materially contribute to the Claimant’s accident?

1. 1. In support of the proposition that such a duty was owed, Mr Snarr submitted in his opening skeleton that: “Pursuant to s. 11 of the Civil Evidence Act 1968 in any civil proceedings the fact that a party has been convicted of an offence before a court is admissible as evidence for the purposes of proving negligence.” In fact, that is not quite what section 11 says. Sections 11(1) & (2) provide that:

(1) In any civil proceedings the fact that a person has been convicted of an offence by or before any court in the United

Kingdom … shall (subject to subsection (3) below) be admissible in evidence for the purpose of proving, where to do so is relevant to any issue in those proceedings, that he committed that offence, whether he

was so convicted upon a plea of guilty or otherwise and whether or not he is a party to the civil proceedings; …

(2) In any civil proceedings in which by virtue of this section a person is proved to have been convicted of an offence by or before any court in the United Kingdom … —

(a) he shall be taken to have committed that offence unless the contrary is proved; and

(b) without prejudice to the reception of any other admissible evidence for the purpose of identifying the facts on which the

conviction was based, the contents of any document which is admissible as evidence of the conviction, and the contents of

the information, complaint, indictment or charge-sheet on which the person in question was convicted, shall be admissible in evidence for that purpose.

1. 1. In short, any relevant conviction can be used to prove the underlying facts upon which the offence is based. Here, had the Defendant been prosecuted to conviction for failure to ensure that, pursuant to Regulation 4(5) of the Regulations the Claimant produced a Construction Phase Plan, drawn up before the construction phase began, that conviction could have been adduced to prove that fact. But in this case, that fact is admitted and there was no prosecution. Mr Snarr submits that “if the Court is satisfied that the D has not complied with the duties he owed under the CDM 2015 regulations, then the starting point is that he has not met the standard of care which the criminal law expects.”

1. 1. The Court was provided (by Mr Porter KC) with a copy of S38 of the 1974 Act which provides:

Proceedings for an offence under any of the relevant statutory provisions shall not, in England and Wales, be instituted except by an inspector, the Environment Agency or the Natural Resources Body for Wales by or with the consent of the Director of Public Prosecutions.

1. 1. Accordingly, the decision to prosecute is a discretionary one. Despite the clear breach of Regulation 4(5) of the 2015 Regulations in this case, no prosecution resulted. It is idle to speculate why. However, despite the provisions of Section 47 of 1974 Act (as amended) Mr Snarr submits that civil liability arises from a breach of Regulation 4(5). He relies upon the well known three stage test in Caparo Industries Ltd v Dickman [1990] 2 AC 605, namely the tests of foreseeability, proximity, and that to impose liability would be fair, just and reasonable.

1. 1. Whilst each case must be fact specific, in my judgment there is no justification in this case for overriding the clear words of Section 47 of the 1974 Act (as amended). Absent the obligation placed upon a “client” in the position of the Defendant to ensure that a competent contractor produced a Phase Construction Plan, there could be no justification, in my judgment, for imposing any such obligation at common law upon a person such as the Defendant. It is only because of the existence of the duty under the Regulations that an argument such as that advanced by Mr Snarr gets off the ground. But in this case, the Claimant is a “one man band” and so is the Defendant. The Claimant had worked for the Defendant’s father on and at the farm for many years. The Defendant had only recently taken over the farm following the death of his father. The Claimant was the older and far more experienced man. The relevant authorities saw no reason (so it appears) to institute criminal proceedings against the Defendant. In such circumstances I simply do not accept that it is fair just and reasonable to override the express provision in Section 47 of the 1974 Act (as amended) that breach of the Regulations “shall not be actionable“. In my judgment, absent other authority to the contrary, that means that there is no civil liability in this case in respect of the facts giving rise to the breach of the Regulations.

1. 1. Mr Snarr relied upon a number of cases to seek to establish the contrary.

1. 1. Roberts v Dorman Long & Co Ltd [1953] 1 WLR 942 (CA) is a case concerning breach of the Building (Safety, Health and Welfare) Regulations 1948. The Plaintiff was the widow of a workman who died following a fall of between 70 and 80 feet. The broad issue was whether safety belts had been provided in accordance with Regulation 97 of the 1948 Regulations. My attention was directed to page 950 of the report where Hodson LJ essentially said that the provision of safety belts, as provided for in the 1948 Regulations, was in any event part of providing the safe system of work at common law.

1. 1. That is undoubtedly correct and a provision that breach of Regulation 97 of the 1948 Regulations “was not actionable” would not prevent an action at common law being brought.

1. 1. But 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.

1. 1. Cockerill v CXK Ltd [2018] EWHC 1155 (QB) is a decision of Rowena Collins Rice sitting as a Deputy High Court Judge. The Claimant suffered injury when she tripped over a seven inch doorstep at premises which to her were unfamiliar and which she was visiting in the course of her employment. She sued her employer and the occupier of the premises. The amendment to the 1974 Act brought about by the 2013 Act was relevant. However, the Judge held that removal of the Claimant’s cause of action for breach of statutory duty “did not repeal the duties themselves” (see paragraph 18).

1. 1. However, the claim was determined on the basis of negligence based itself upon existing common law duties. This again is very different from the brand new and some would say onerous regulatory obligation on a client to demand from the contractor something which the contractor would not, but for the Regulation, be obliged to produce. As the Judge said at paragraph 18: “Not all breaches of the statutory regime will be negligent”.

1. 1. Tonkins v Tapp [7 December 2018, unreported] is a decision of HHJ Allan Gore QC sitting as a Judge of the High Court. He considered the judgment in Cockerill and at paragraph 106 of his judgment said:

“Accordingly, I would not have been prepared to find, without much more analysis and argument, that the effect of section 69 [of the 2013 Act] was to deprive an accident victim of entitlement to rely upon a finding that breach of statutory duty constituted ipso facto negligence as constituting breach of the scope and standard of care reasonably required of the alleged tortfeasor by the statutory duty even if no civil right of action was available for its breach.”

1. 1. In that case, the Claimant’s claim failed on the facts. It may well be that a particular breach of statutory duty constitutes “ipso facto” negligence, but it does not seem to me that breach of Regulation 4(5) does in this case.

1. 1. Mr Porter KC relied upon Moreira v Moran [2021] EWHC 1800 (QB), a decision of Mr David Allan QC sitting as a Deputy High Court Judge. The Claimant was represented by Mr Darryl Allen QC and the third Defendant by Mr James Rowley QC. The Claimant sustained injury when he fell from height in the course of performing building work. He was a labourer working for the first and second Defendants, who were themselves self-employed builders. They appeared in person at the trial.

1. 1. The third Defendant was the occupier of the premises where the building work was being performed. The third Defendant had engaged the first Defendant to perform the building work. The second Defendant was assisting.

1. 1. The Director of the third Defendant had no knowledge of the 2015 Regulations. Nor did the first Defendant. Breach of Regulation 4(5) was alleged against the third Defendant by the Claimant.

1. 1. At paragraph 39 of the judgment, Mr David Allan QC said of Regulation 4:

“The client should ensure that a plan is drawn up before the work begins. It is accepted that breach of the 2015 regulations does not provide a basis for civil liability. Mr. Allen QC submits it should inform what constitutes a breach of the common duty of care under the 1957 Act and the common law duty.”

1. 1. No liability was found to exist as against the third Defendant “client”. That is consistent with the view that I have formed.

1. 1. But even if I am wrong about that, I do not accept the Claimant’s evidence that requiring him to produce a written plan would have prompted him to ask for the man basket to be placed in the barn to act as a crash deck. In his evidence he spoke about the benefit of hindsight and thinking that he would have asked for a crash deck if he had been asked to put his risk assessment in writing. In fact, the breach of duty relied upon is a failure to ask the Claimant to produce a Construction Phase Plan. On the hypothetical basis that the Claimant would have found out what a Construction Phase Plan was and perhaps looked at the brief model plan produced by the HSE (at pages 784 and 785 in Bundle 2), there is nothing obvious in that plan to alert the Claimant to the desirability of requesting a crash deck. Under the heading “Falls from height” there follows the narrative:

“Make sure the ladders are in good condition, at the correct angle and secured.

Prevent people and materials falling from roofs, gable ends, working platforms and other open edges using guardrails, midrails and toeboards.”

1. 1. To observe that the Claimant was fixed in his ways is not intended to be a criticism. He had 30 or so years of experience in compiling risk assessments in his head. Nothing said to me by the Claimant and nothing that I have read comes close to persuading me that it is “probable” that the exercise of writing down what was in the Claimant’s head would have led to the addition of a request for a crash deck. Benefit of hindsight does not, in this case, translate into probability of a different outcome.

1. 1. It follows that the Claimant fails to establish that the Defendant is liable for the consequences of the dreadful accident which has led to such catastrophic consequences for the Claimant.

1. 1. If I am wrong about the issue of liability, it will be necessary to determine the apportionment of liability. It is rightly conceded that the greater share of responsibility rests with the Claimant.

1. 1. Apportionment is more of an art than a science. Each case is exquisitely fact sensitive. In this case, the Claimant was the man with experience and skill. He had used crash decks before. I have found as a fact that the Defendant had never been involved in the provision of a crash deck for use by the Claimant, but that is not the breach of duty alleged. The breach alleged is a failure to ask the Claimant to produce a document that the Claimant was also under a duty to produce. I would apportion contributory fault to the extent of 75% against the Claimant, meaning that if there is any liability against the Defendant, it is limited to 25% of the value of the claim.

Conclusion

1. The claim fails. However, like HHJ Gore QC, I find it impossible to leave this case without expressing my admiration for the manner in which the Claimant has conducted himself in the face of terrible adversity, and my regret that after so many essentially injury free years of devoted service to countless clients his career has to end in this manner.