King v Farmer t/a R W Farmer (Builders) 6.8.04

Main contractor was not the sub-contractor's employer nor did he control the way he carried out his work.

Mr King was a painter/decorator in partnership with his father. Mr Farmer obtained a contract to paint the exterior of a building and sub-contracted the job to Mr King.

Scaffolding was provided but access to the scaffolding was to be achieved by Mr King using his own ladder.

Mr King fell off the ladder and he alleged that Mr Farmer had breached the Construction (Health, Safety and Welfare) Regulations 1996 by failing to have someone at the foot of the ladder to prevent it slipping. He also alleged that Mr Farmer had a duty to provide safe access to the first stage of scaffolding and had failed to do this.

Decision

In considering whether there was an employer/employee relationship the High Court applied 3 tests:

• Organisational - who organises the way the work is done.
• Economic reality - who bears the risk of loss and the chance of profit.
• Multiple - looking at all relevant factors.

On the basis of these tests the Court found that Mr King was not an employee. He should therefore have arranged for somebody to foot the ladder, or alternatively have secured it to the scaffolding.

Whilst Regulation 4(2) does impose a duty on a person who is not an employer, that is only the case when that person has control of the way work is done, and that was not the case here.

The Regulations impose an equal duty on parties to ensure a safe system of work and Mr King accepted that, even if there was a breach on the part of Mr Farmer, he was partly to blame. The failure safely to secure the ladder was the cause of the accident. An equal apportionment of blame was the starting point but Mr King knew what he was doing was wrong and therefore if the Regulations had applied, the Court would have found him 75% contributorily negligent.

Comment

This case examines the duties of sub-contractors towards their own safety when they are actually in charge of how the work is carried out. It serves as a useful reminder of the difference in duties and obligations imposed upon a main contractor where the Claimant is a sub-contractor rather than an employee.