UK: Occupier Or Employer – Who Pays?

Last Updated: 20 July 2012
Article by Gabbie Ietro

It is accepted law that employers owe a non-delegable duty of care to their employees. However as covered in our previous review of the CEVA Logistics decision, the non-delegable nature of the duties owed by an employer does not preclude another party owing co-extensive duties, thus offering scope for an employers' liability to be shared with another party.

The High Court considered such a situation in the case of Helen Shearer Evans (Executrix of the Estate of Malcom Evans Deceased) and Royal Borough of Windsor and Maidenhead (1) and Charles Wilson Engineers Limited (2) (July 2011).

The claimant sustained fatal injuries by striking an overhead pipe whilst reversing a mobile elevating work platform. He was employed by the second defendant as an HGV driver. He was responsible for the delivery and collection of a mobile elevating working platform ('MEWP') at a site belonging to the first defendant. At the site there was an overhead pipe, linking a heating installation to a gymnasium over a private access way. The pipe was situated about 3.3 metres from the ground. The height of the MEWP when fully stowed was three metres. The second defendant's sales manager had visited the site to assess the size of plant required.

The accident occurred when the claimant collected the MEWP. He was reversing the same and struck the pipework. On the entrance side to the site there was signage affixed to the pipework warning of the danger. There was no such signage on the other side of the pipework. There were no warning signs in advance of the pipework on either side. As a result of the accident the HSE made recommendations to the first defendant, which included putting up signs in advance warning of the height restriction. However there were no HSE prosecutions arising out of the incident.

The claimant brought proceedings against the first defendant, as occupier, alleging that there was inadequate signage. The first defendant denied that the signage was inadequate and brought Part 20 proceedings against the second defendant alleging that the claimant had been inadequately trained in the use of the MEWP, and that a banksman ought to have been present for the delivery and collection.

The second defendant gave evidence that the claimant was an experienced driver. After joining the defendants in 1994 he had been trained in April 2002 on a four day course, both as an operator and demonstrator of MEWPs. The ensuing certificate was valid for five years, although at the time of the accident the certificate was about to expire.

The second defendant stated that it would not be feasible to carry out a risk assessment in individual hire contracts where 200-250 pieces of equipment were being delivered on a daily basis across the country. Drivers were expected and trained to carry out individual risk assessments.

David Pittaway QC (sitting as a Judge of the High Court) was solely concerned with the issue of contribution proceedings between the two defendants. He found the claimant was inadequately trained. He further found that the second defendant placed too much reliance on the extent of the claimant's experience and insufficient emphasis on making sure that he did not develop practices which placed him at risk whilst delivering or collecting plant. Additionally, whilst unusual, on this occasion a site inspection was conducted. The second defendant's sales manager was aware of the presence of the overhead pipework and should have noted and recorded the issue of restricted headroom. The claimant should have been warned in advance of the restricted headroom.

However, the judge also considered that the failure of the first defendant to display clear signage in advance of the overhead pipework in either direction and on the pipework for vehicles exiting the site was a breach of the duty by the first defendant to visitors to the site.

Having made the above findings he found the parties to be equally responsible for the incident and apportioned liability 50/50 accordingly.

Key points for defendants

  • When an employee is injured on the site of a third party give careful consideration as to whether the third party has potentially breached any duties owed to the employee
  • Whilst an employer's duty to an employee is non-delegable remember that this does not prevent an apportionment of liability if another culpable party can be identified
  • On a practical level an employer may need to consider joining in a party as an additional defendant pursuant to Part 20. The employee may consider the employer to be the easiest target, although that was not the position in this particular case
  • Occupiers should give attention to the risks presented to employees whilst they are on site

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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