Employer

Can both the occupier and the employer be held liable?

The courts will look beyond the position demonstrated by the testimonies to find the true employment status and duties to those injured.

In Paul Chadwick v RH Ovenden Ltd and Rian Hamilton (2022 EWHC 1701 QB), the High Court had to check the employment status of an aircraft dismantler and determine whether an occupier and an employer could both be liable for his injuries.

The plaintiff was instructed by the second defendant to remove a metal panel in connection with the dismantling of an aircraft at Manston Aerodrome. When the grinder they suggested didn’t do the job, the contractor chose another grinder to cut through the panel. The grinder came into contact with an oxygen cylinder which, unbeknownst to him, was positioned behind where he was cutting, causing an explosion. Claimant was knocked unconscious and suffered permanent eye and hand injuries rendering him unable to work. Both defendants denied any responsibility.

Decision

Trying to make sense of unclear legal rights and obligations, the reality of various overlapping works on the site and the ‘self-serving’, vague and inconsistent evidence presented on behalf of the second defendant in particular, the judge concluded as a matter of interpretation this:-

  • the first defendant had full contractual permission from the airfield to disassemble the aircraft;
  • the first defendant subcontracted the physical dismantling to the second defendant;
  • based on how he stood before the HSE, and in his defence, the second defendant was an independent contractor rather than an employee of a third party;
  • the first defendant had retained some control over the aircraft and certain obligations, including that of carrying out a safety inspection. The plaintiff’s expert evidence was privileged to determine the need for a competent and qualified safety inspection of the aircraft before the start of the dismantling work.

The judge held that the plaintiff was an employee of the second defendant rather than self-employed, on the grounds that Mr Hamilton:-

  • Assigned the jobs to the service provider;
  • Indicated to the service provider how to carry out this work;
  • Provided or made available the tools to do the work;
  • Set working hours;
  • supervised the applicant;
  • Paid the claimant a fixed weekly salary;
  • Obliged the service provider to work full time at the airport, without the possibility for the service provider to send other people to work in his place.

Notwithstanding the introduction of Section 69 of the ERRA, in the judge’s view, it was not correct to say that a violation of statutory regulations will always constitute negligence, but likewise, the ERRA n did not change the common law duty of negligence. A common law duty and whether the duty was met would likely be informed by HSE law and regulations as to what was reasonable.

As an employer, the second defendant failed to take reasonable steps (when judged objectively) to provide a safe workplace and breached its duty of care to the plaintiff. The second defendant had failed to ensure that a proper safety inspection was carried out, rather than an unqualified cursory examination. A risk of injury by dangerous objects (particularly oxygen) was foreseeable, as was the presence of the bottle. The second defendant had also failed to provide adequate instruction or training. The assigned work was “doomed to failure”.

With respect to the first defendant, the judge held that he had, among other things, retained responsibility for the risk assessment and the method declaration and the safety inspection. Unlike section 3 of the HSWA, section 4 (the duty to secure the premises, which overlapped “very significantly” with the common law duty) contemplated multiple operators having control of a workplace and the first defendant had breached their common law duty to retain some control but failed to take reasonable steps to prevent reasonably foreseeable harm because they failed to undertake or arrange for the proper safety inspection.

The judge declined to find that the plaintiff had been so contributory or grossly negligent as to break the chain of causation. “It’s a significant hurdle to overcome” for an employer who provides an unsafe workplace, who doesn’t train, instruct or supervise properly, to pin the blame on their employee. As the second defendant had ordered the plaintiff to remove the panel and the tool requested was not suitable, and staff were expected to show initiative, it was “inevitable” that the plaintiff would try another tool, and he was entitled, as a casual worker inexperienced in such dismantling, to rely on his employer who did not carry out the necessary safety inspection.

This case is a stark reminder that courts will go beyond the position held in unofficial evidence to determine the true employment status of those injured and the duties owed to them, and that the identification of a clear perpetrator of the tort will not preclude the imposition of liability on others where common law violations are identified.