A recent case before the Royal Court clarified important aspects of the law relating to Employer's liability for personal injury as well as the approach to apportionment of damages when two entities are liable for injuries sustained by an individual.
The case of Abreu v RS Reinforcements and CNR arose out of a much-publicised accident which occurred in February 2021 on the Ann Court development in St Helier. A platform that had been installed on the side of the development collapsed causing a construction worker to fall twelve stories and sustain life-changing injuries. The company that was responsible for installing the platform was subsequently prosecuted in the Royal Court and fined £100,000 for breaching the Health and Safety Law.
In March 2025, as part of the civil claim brought by the injured employee, the Royal Court sat to determine the issue of liability. The plaintiff had sued both the company that employed him at the time and the company who had installed the platform. The issue before the Royal Court was whether one or both companies were liable for the injuries, and, if they were both liable, how liability should be apportioned between them.
To appreciate the issue before the Court it is important to understand the circumstances in which the Plaintiff was working on the site. The company that employed him (the First Defendant) had agreed to loan the Plaintiff and other of its employees to the Second Defendant to provide labour that the Second Defendant required to carry out its sub-contract with Camerons, the main contractor, to design, supply and install concrete works. There was no formal agreement evidencing the “loaning” of labourers. It was done on an ad hoc basis whereby the Second Defendant would request certain workers from the First Defendant by email on a weekly basis. Those workers would then work on site under the direction of the Second Defendant. Although the First Defendant was also doing its own work on site under a sub-sub-contract, this was separate from the Second Defendant's work that its loaned employees carried out.
To carry out its work at height, the Second Defendant used platforms that would be attached to the side of the building that was being constructed as an alternative to scaffolding. Although these platforms were described as “state of the art”, there were very specific rules as to how they had to be designed and installed. The design had to be carried out by a specialist team and no alterations were to be made without reference to those specialists. On the day of the accident and in breach of its own rules, members of the Second Defendant's team on site decided to alter the length of one of the platforms. Additionally, no member of the specialist team responsible for the installation of the platforms was on site. The platform was installed incorrectly. Importantly a crucial safety device had not been properly engaged. The Plaintiff was working on the platform with others. When those others stepped off one end of the platform, it tipped causing the Plaintiff to fall to the ground.
It was common ground between all parties that the immediate cause of the accident was the negligence of the Second Defendant's staff in altering and installing the platform. There was no suggestion that the First Defendant, the Plaintiff's employer, was responsible for those matters.
The first question that arose for the Court was whether the First Defendant was liable to the Plaintiff for his injuries in circumstances where he had been working for the Second Defendant and where the Second Defendant's negligence had caused the accident.
The First Defendant's case was that it was not liable and had done all it could to ensure the safety of its employee. The accident was wholly down to the Second Defendant.
The Plaintiff's case, which the Court accepted, was based on a non-delegable duty of care which an employer owes to its employees.
Every employer owes a duty at customary law to provide safe equipment, a safe system of work as well as adequate training and supervision in relation to that system of work. Employers are also required by statute to ensure, so far as is reasonably practicable, the health and safety and welfare at work of its employees. The Court confirmed that these are non-delegable duties. The Court considered authorities on the nature of non-delegable duties and concluded that when a duty is non-delegable, this means that an employer remains responsible for its duties even when its employees are instructed to work under the directions of a third party. The third party becomes an agent through which the employer discharges its obligations to the employee and the employer is still liable if the agent fails to fulfil those duties.
In arriving at its decision, the Royal Court considered decided cases from England and Wales and as far afield as Hong Kong. It found that the First Defendant was subject to the non-delegable duties it owed to the Plaintiff at all times and that the actions of the Second Defendant amounted to a breach of that duty. The consequence of that decision was that each Defendant was held jointly and severally liable for the Plaintiff's injuries.
However, the matter did not end there. The Defendants had each made a claim for a contribution by the other for such injury as they were found liable for, pursuant to article Article 3 of the Law Reform (Miscellaneous) Provisions (Jersey) Law 1960. That article requires the Court to decide what apportionment is just and equitable in light of the circumstances of the accident. It must have regard to the extent of each party's responsibility for the injury.
Accordingly, although the Court had decided that both Defendants were liable for the Plaintiff's injuries, it went on to consider how liability should be apportioned between them.
When considering the proper approach to apportionment, the Court looked to several English authorities. Drawing on the words of Kennedy LJ in Nelhams v Sandells Maintenance Limited and Gillespie (UK) Ltd [1996] PIQR P52, that Court found that i is appropriate, particularly for the purpose of apportioning liability, to have regard to the “blameworthiness and causative potency” of the actions of each party.
The Court referred to a Jersey authority from the 1970s which drew a distinction between operative causes (those which actually bring about the accident), and preconditions of the accident (the collection of existing circumstances without which the accident would not have occurred or had the same result). Ultimately a defendant's negligence or breach of duty must have either caused, or made a material contribution to the Plaintiff's injuries.
As to apportionment, the determination of what is just and equitable was said to be a very wide discretion which permits the Court to consider the nature of a particular defendant's failings.
The Court referred with approval to an English textbook which made clear that a more serious fault with a lesser causative impact on the plaintiff's damage could still result in an equal responsibility to that of a less serious fault which had a greater causative impact. Alternatively, in circumstances where the causal potency of each parties' acts are equal, but one party has significantly more moral blameworthiness than the other, the court can and would probably depart from an equal apportionment.
Finally, the Court considered the English case of Furmedge v Chester Le Street DC [2011] WL 1151655. The approach set out in that case permits the Court to consider not only the causative potency of each parties' actions, but may also take into account factors which are not strictly causative of the accident when determining what is “just and equitable” in all the circumstances.
With those principles in mind, the Court turned to its assessment of the evidence it had heard. It had heard evidence about the First Defendant's approach to Health and Safety, which it characterised as “casual, bordering on the contemptuous”. It heard about instances when the Second Defendant had to raise concerns with the First Defendant about the manner in which its employees were conducting themselves on site. It also accepted that the Plaintiff had raised concerns with the First Defendant about the safety of the Second Defendant's platforms, which the First Defendant had not passed on or otherwise taken action. The Court also considered it significant that the First Defendant maintained a reasonable degree of control over the Plaintiff (in terms of his pay and the ability to direct him where and when to work). It had its own staff on site who ought to have known what the Plaintiff was doing. Whilst not the direct cause of the accident, the Court considered it just and equitable to take the First Defendant's casual approach to Health and Safety into account.
Given all of the above, the Court considered the correct apportionment between the Defendants for responsibility for the Plaintiff's injuries was 20% as to the First Defendant, and 80% as to the Second Defendant.
The judgment can be found here: www.jerseylaw.je/judgments/unreported/Pages/[2025]JRC106.aspx
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