Hood v Mitie Property Services (Midlands) Ltd & Anor 1.7.05

Site owner not liable to employee of roofing contractor that held itself out as competent.

On 6 February 2000 Mr Hood was working on a roof in the course of his employment with Mitie, when he fell through a Perspex skylight. He brought an action against Mitie alleging various breaches of the Construction (Health, Safety & Welfare) Regulations 1996 (the 1996 Regulations) and negligence. Mitie settled the claim.

Mitie were subsequently prosecuted and pleaded guilty to breach of s.3(1) of the Health and Safety at Work etc. Act 1974 and for breaches of regs. 4(1) and 7(1) of the 1996 Regulations. The Second Defendant ("the Post Office") was also prosecuted for breach of s.3(1) of the 1974 Act and it too pleaded guilty. Mitie sought a contribution under the Civil Liability (Contribution) Act 1978 from the Post Office as site owner.

The grounds for the contribution were:

• The Post Office owed Mr Hood a freestanding duty at Common Law. It was reasonable and fair that there should be such a duty having regard to the dangerous nature of the work being carried out. There was proximity and foreseeability.
• The Post Office failed to warn Mitie or its employees that the roof was fragile, breaching the Occupier's Liability Act 1957.
• The Post Office had a duty to Mr Hood under the 1996 Regulations and by virtue of the Management of Health and Safety at Work Regulations 1999. Under reg. 3(1)(b) the Post Office had control in fact of the way the work was done.
• Mitie and its employees had relied on an inaccurate works order, which they alleged was a negligent misstatement on the part of the Post Office.

Decision

The Court rejected the submissions for the following reasons:

• Common Law. The work being undertaken while having obvious dangers could not be described as extra-hazardous. In the construction industry there are many sources of danger and it would be wrong were roofing work singled out as giving rise to a special duty.
• The Occupiers Liability Act 1957. The Post Office owed to its visitors a common duty of care. However these include for that purpose a degree of care to be looked for in the particular visitor. If a visitor is sent on behalf of an employer who professes a competence to do routine roofing jobs and who represents himself as having a diligent and conscientious approach to safety, then the Post Office could expect the visitor to guard against the risks ordinarily incident to the job.
• The 1996 Regulations. The duty of care under the 1996 Regulations arises out of s.4(2) which imposes on every person "who controls the way in which any construction work is carried out by a person at work" a duty to comply with the relevant regulations. The issue was whether the Post Office controlled the way in which Mitie's work was carried out. Applying the case of McCook v Lobo (2002) it was held that they did not. The Post Office may have control over the premises (although because the work was carried out on a Sunday they were not there) but control for the purposes of the 1996 Regulations was control of the way in which Mr Hood was doing his work and reg. 3(1)(b) of the Management of Health and Safety at Work Regulations 1999 did not alter the position. Further, s.22 of the Management of Health and Safety at Work Regulations 1999 specifically provides that breach of duty under the 1999 Regulations does not confer a right of action in any civil proceedings, therefore the Post Office's conviction under the 1974 Act had no relevance to the instant case.
• The works order was not held to be a negligent misstatement because neither Mitie nor their employers placed any reliance on it. Furthermore, the works order did not warrant, represent or imply the safety or standard of the roof.

Comment

The mere fact that a party has been prosecuted for breach of the Health and Safety at Work etc. Act 1974 does not of itself automatically infer there is civil liability. Occupiers who engage contractors are entitled to assume they are competent and will guard against risks.

The material the roof was made of was not causative of the accident. What did cause the accident was Mitie's failure to prevent Mr Hood from falling through fragile material, namely the skylight.