Accident highlights dangers of accepting H&S responsibility

Tafa v (1) Matsim Properties, (2) Gilling-Smith, and (3) Agora Gynaecology and Fertility Centre

(Queen's Bench Division — 23 May 2011)

Defendant two, Ms Gilling-Smith, was a director and 50% shareholder in defendant three, Angora Gynaecology and Fertility Centre, which leased the third floor of a building owned by defendant one, Matsim Properties (against whom the case was discontinued).

Work to fit-out the third floor as a clinic was under way. Ms Gilling-Smith voluntarily assumed the role of project manager, and accepted responsibility for health and safety on site. However, it was later found that she did not understand her legal responsibilities for anyone on site, and did not assume effective responsibility for health and safety.

Peter McDonald, a self-employed carpenter was engaged by Ms Gilling-Smith to carry out carpentry work on the strength of repairs he had previously carried out to the roof of her home. There was no basis to conclude that he had the necessary competence to organise and supervise work at height. No check was made on whether he had any public or employers' liability insurance — he did not. Ms Gilling-Smith also did not realise that Agora Gynaecology and Fertility Centre had no EL insurance.

Ms Gilling-Smith knew that roof void work would be required and, therefore, it was foreseeable that Mr McDonald would have to undertake carpentry work at height, though no express instructions were given. No method statements or safety plans were prepared, nor was the work properly supervised.

Mr McDonald employed the claimant as a labourer and instructed him to fix boarding in the roof space to form a walkway, although there was no evidence that he received direct instructions to do this. The claimant fell through the suspended ceiling below rendering him a T8 paraplegic.

The court found that Ms Gilling-Smith and Agora Gynaecology and Fertility Centre were in breach of Regulations 5(1), 5(2), 5(3) and 28(1) of the Construction Regulations and Regulations 4(1) and 5 of the Work at Height Regulations. They were also liable in negligence and the court found that Ms Gilling-Smith had personal control of Mr McDonald — and thereby the claimant — for the purposes of coming under personal obligation under both sets of regulations.

The claimant was held 10% contributory negligent.

Comment

Ms Gilling-Smith had assumed control, and thereby responsibility for Mr McDonald (and through him for the claimant), without understanding the consequences of her actions. Even though she was not aware that work was to be carried out in the roof void on the day of the accident, she was aware that the work was contemplated as part of the project works. A person with factual control who chooses not to exercise it cannot, therefore, escape liability. Because of the conduct of Ms Gilling-Smith and her incompetently appointed agents, Agora Gynaecology and Fertility Centre has also become liable to the claimant at common law. This case highlights the dangers of people taking charge of projects beyond their experience and expertise. Jean Tasker, BLM Leeds

The following law report contributed by specialist insurance practice Berrymans Lace Mawer (www.blm-law.com) first appeared in Post Magazine on7 July 2011

Disclaimer: The law report contains information of general interest about current legal issues, it does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. Specialist legal advice should always be sought in any particular case.