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Jupp v PMC Construction (2023) (unreported)
  • May 2, 2024
  • Latest Journal

This case involved the successful defence of the personal injury claim following a fall from scaffolding by a self-employed contractor. It is of significance for insurers and policyholders because it turned on the extent of the claimant's responsibility for his own safety and to what extent any causative hazard was brought into being by the claimant himself.

Elke de Mariassy, of our Complex Injury team, and Counsel David Cunnington of Old Square Chambers, instructed by Zurich Insurance, were successful in a recent trial in the Winchester County Court leading to a saving of over £700,000. The case concerned a personal injury claim by the claimant Stephen Jupp (C), a self-employed bricklayer who had been working on a construction site at which Zurich Insurance Plc's    policyholder, P.M.C. Construction & Development Services Limited (D1) was Principal Contractor.

The Judge in an extempore judgment dealt in detail with the evidence and in particular the measures taken by D1 to (a) make the site as safe as reasonably practicable for those working on it and (b) to discourage infractions of the rules and procedures meant to protect workers on site.

The accident
D1 is a construction company and was Principal Contractor building houses and flats at a development in Bracknell. There had been a second defendant, the scaffolding contractor, but C discontinued against it just before trial. C was an experienced self-employed bricklayer, who was engaged by another self-employed bricklayer to work on site.

The events leading up to the accident were disputed. C said that he had been told by another bricklayer that he would be continuing to carry out Damp Proof Course work. On the day of the accident in 2018 he was working on a particular block applying Damp Proof Course and fell from the sixth and highest level of scaffolding. C said he had gained entry to the sixth level of scaffolding through an internal, permitted, access point, that there had been no signs forbidding access in any event, and he was taken there by one of the other bricklayers.

C saw that there were 2-3 sections of inner scaffold board missing. C therefore placed sections of Haki scaffolding platform down creating a platform on which he could work close to a corner void. C then undertook the Damp Proof course work and edged along the building backwards, pulling the Damp Proof Course tape and stepping backwards. As he did so, he lost his footing and fell down the corner void suffering significant injuries. C argued at trial that the void should have been covered with a corner plate.

The case
C alleged that there was no inner handrail on the scaffolding to guard against the void close to the building and it was easy and common for inner handrails to be removed by people working on site. He argued that D1's site managers were aware of this practice and D1 should have installed corner plates on all the corner voids and, if this had been done, the accident would have been prevented. Within the allegations C argued that he had not been told there was restricted access to this level in any event, and that he gained access via a permitted internal route with no signs forbidding access.

D1 said that no-one had instructed C to work in this particular area and that, in any event, it was not in use and was not available to C or other trades as it had not been handed over by the scaffolding contractor. Either D2 had not handed it over to D1 or it was barriered off, which was made clear at the entrance points. Access for bricklayers and all external trades was only via an external "Haki" staircase. All the bricklayers had been told that internal access was not permitted and C must have had to remove the barriers to gain access. There were external and internal handrails in place and because of this there was no need for corner plates as workers were protected by the internal handrail. C's accident was entirely his own fault.

C alleged that D1 had been negligent in failing to carry out its duties in respect of his safety. C relied on the Occupier's Liability Act 1957, Management of Health at Work Regulations 1999, the Work at Height Regulations 2005 and the CDM Regulations and common law as evidence of negligence. C argued such duties included D1 making and reviewing risk assessments and ensuring that steps and measures needed to ensure and enforce safety on site were applied and adhered to.

C's case boiled down to the following key issues:

• Whether the scaffolding area in question had been handed over to trades or not

• How C was able to access the area

• Should D1 have carried out a new risk assessment when the scaffolding contractor decided to use Haki system scaffolding instead of traditional tube and fitting scaffolding; workers could adjust Haki scaffolding without the need for specialist tools

• Whether D1 owe a duty to take into account what C actually did which led to the accident when looking at what constituted a reasonably safe system of work

• Corner plates could and should have been provided at no extra cost by D2 as the scaffolding contractor

The Judge said that D1's duty was to provide a safe system of work including by the use of risk assessments and implementation of precautionary steps to minimise the risks identified. It would have discharged these obligations by taking reasonable precautions whilst taking into account the cost of implementation; there is a balancing act between efficacy and cost.

The Judge, in dismissing the claim, said as follows:

• Adequate precautions were taken by D1 including regarding unauthorised removal of handrails

• The scaffolding area had not been handed over and was not available to C to use and he knew that and gained unauthorised access via an unpermitted route

• Counsel for C had said that a corner plate would have prevented the accident but it would not have happened if C had been working on the correct side of the internal handrail in the first place

• Senior employees of D1 did walk-arounds twice a day. The Judge said in terms that she did not consider that D1 tolerated workers taking down handrails to gain access: on the contrary measures were implemented to stop this happening.

• D1 was entitled to consider that C would guard against obvious risks, which included not going into an unauthorised area and specifically not going into lift 6 from where he fell.

• D1 had to plan work to minimise risk. It had clearly addressed its mind to corner voids and the Judge was not satisfied it was ignoring or allowing an obvious danger.

• In addition D1 took reasonable steps to make sure its site rules were being observed.

• The Judge was not satisfied that D1 was in breach  either of its common law duty or the relevant provisions of the Occupiers' Liability Act 1957.

In respect of causation, the Judge found that it was not reasonably foreseeable that a worker would take handrails down. The accident was caused by C's flouting the site rules and what he did was sufficient to break the chain of causation.

It is worth noting that this is another example of one of the parties being hindered rather than assisted by its expert witness. In this case, C's liability expert clearly got himself into a muddle over what the evidence actually was. His report indicated that he had seen more than one version of C's first statement; a version which had not been served and was not in the trial bundle, although this was denied by the Claimant's solicitor. This was hardly C's expert's mistake but perhaps went to his lack of intimate knowledge of the case. Of the two witness statements made by C included in the bundle, neither set out matters which had been referred to by C's expert in his report. He was, in addition, unaware of the existence and effect of the Enterprise and Regulatory Reform Act 2013 (ERRA). The Judge unhesitatingly preferred the evidence of D1's expert, Mr Rawden.

This is a useful judgment which whilst reiterating and re-emphasising the law with regard to the effect of ERRA on liability in EL claims is also useful specifically with regard to setting out the respective duties and obligations placed not only on the employer but also the employee or contractor.

It is also an example of an employer/main contractor being able to back up their safe systems with evidence that it is adhering to its risk assessments, work plans, site safety warnings and briefings.

Finally it is a reminder that responsibility cuts both ways. In this case, C lacked any or any sufficient care for his own safety. He deliberately flouted safety rules which led to his accident which was entirely avoidable had he not ignored his instructions.

Elke De Mariassy

+44 (0) 117 9182791