In Rose v WNL Investments Ltd, relatives of a deceased man (R) who died after falling through a roof at the defender's premises while carrying out maintenance works, raised an action of damages in respect of his death.
The action called for debate on the defender's position that the pursuers' allegations were irrelevant and lacking in essential specification.
The pursuers maintained that R should be regarded in law as having been employed by the defender to carry out the works. They claimed that his death was the result of fault and negligence at common law on the defender's part, and in particular that the defender failed to take reasonable care for his safety by not instituting, providing and maintaining a safe system of work, a safe place of work, and safe working equipment.
They referred to provisions of the Construction (Design and Management) Regulations SI 2015/51 and the Work at Height Regulations SI 2005/735 as illustrative of the standards to be expected of employers in fulfilment of their common law duties of care towards employees and those working on their premises and under their direction and control. The defender maintained that R was an independent contractor rather than an employee, and that it was not in breach of any duty of care owed to him.
The defender submitted that the Health and Safety at Work etc. Act 1974 made it clear that, as a general rule, a pursuer could not simply rely upon a breach of a statutory duty expressed in a health and safety regulation to found a civil action, but required to establish negligence on the part of the defender. The pursuers' case sought to treat the regulations as informing the nature of a common law duty of care owed to R without any proper basis for so doing.
Many of the admitted features of R's engagement were not inherently supportive of the suggestion that he should properly be regarded as having been the defender's employee. He was a self-employed contractor, engaged his own employees, and brought his own equipment to the defender's premises.
However, the pursuers stated that the defender retained control over the work being undertaken by him, to the extent that it was able to monitor, supervise, insist upon, and implement measures to prevent him and his employees from falling from height and/or to minimise the distance and consequences of any such fall. This was supported by others concerning the defender's intervention in relation to R's earlier engagement by it at another of its sites. The pursuers' pleadings could not be regarded as irrelevant.
Even if it is concluded that R was an independent contractor, conflicting case law means it is no longer as clear as it once might have been that in such circumstances the defender would owe him no duty of care, although that in effect remained the default conclusion. Although none of the case law so far decided in favour of the existence of a duty of care involved a factual situation exactly on point with the present, that could not mean, particularly given the pursuers' allegations in relation to the degree of control capable of being exerted by the defender over R's work, that the pursuers would be bound to fail in establishing the existence of a duty of care, even if it were to be concluded that R was an independent contractor. The matter had to proceed to probation.
The Enterprise and Regulatory Reform Act 2013 was directed to ensure that a breach of statutory health and safety duties would only be actionable if the breach was itself negligent. However in almost all of the relevant case law in which the question of the continuing role of health and safety regulations in informing the nature of common law duties of care had been raised, there had been consensus between the parties as to how the question should be answered.
Recognition of the existence and content of common law duties of care remained the sole prerogative of the judiciary. Criminal liability for breach of health and safety regulations and common law duties of care operated on entirely different legal planes, and any other approach undermined the Enterprise and Regulatory Reform Act 2013. That was not to say that health and safety regulations had no potential relevance in assisting the court to come to its own conclusions about the incidence and nature of a common law duty of care. However, in most cases, the utility reference to such regulations and guidance would be extremely limited.
The pursuers claimed that the regulations referred to were relevant as evidence of an established benchmark informing the standard of care owed by the defender to those working in its premises, and under its direction and control, in the exercise of its common law duties of reasonable care. So long as those claims were seen as propositions of fact rather than law, they were unobjectionable. Whether they would in fact be made out as valid propositions of facts remained to be seen. There was, however, no proper ground upon which they could be refused probation at the present stage.
"The case will now proceed to disposal by way of proof, without excision of any of the pursuers' pleadings".
Case remitted for proof.
