Humpheryes v Nedcon UK Ltd and Storage Engineering Services Ltd 16.7.04

Both contractor and sub-contractor held liable for an accident for failing to provide a safe system of work under the Construction (Health, Safety and Welfare) Regulations 1996.

Nedcon and Storage Engineering Services (SES) were contractors and sub-contractors on a construction site. Nedcon manufactured shelving systems and sub-contracted to SES to install them on site. The installation required the setting of studs into a concrete floor behind a doorway. The studs would later have the shelving systems placed on to them to secure the unit.

Mr Humpheryes was employed by another sub-contractor, and went into the room where the studs had been fitted. The studs were 5" in height and had not been cordoned off with tape or marked, nor had any warning signs been put up. Mr Humpheryes subsequently tripped over one injuring himself.

Decision

Both Nedcon and SES admitted that the Construction (Health, Safety and Welfare) Regulations 1996 applied to the site, but each alleged that any duties arising were owed by the other. In order for the Regulations to apply Mr Humpheryes needed to establish which of them had sufficient control over the site and the work in question.

It was held by the High Court that the contract between Nedcon and SES was relevant despite not being signed. The contract contained provisions for Nedcon to request SES to remove an employee of SES if they were working in an unsafe manner. SES was required to comply promptly. This demonstrated control by Nedcon over SES, and there were examples of this having happened. Nedcon had also helped mark out where the studs should be placed. The Court held therefore that Nedcon had sufficient control over the site to attract liability under the Regulations.

SES had also exerted control over the site by fixing the studs. Furthermore, they had failed to use barriers to cordon off the studded area or to use warning signs. They also were therefore subject to a duty under the Regulations

Liability was apportioned two thirds to Nedcon and one third to SES.

Comments

The case clearly establishes that the duty of any contractor who engages a sub-contractor to undertake works is more onerous than might have been anticipated. No specific reason was given why Nedcon was held more responsible but clearly the Court recognised the burden on the contractor to ensure a safe working environment even if they are not directly involved in the work in question. Therefore, they will have to continue to monitor and supervise work to ensure that it is done safely.