When health and safety gets personal

Author: Gillian Birkby

If you commission or allow construction work to take place on your commercial property, you do not normally expect to be sued for personal injury by people working for the building contractor. Health and safety legislation, however, makes this a real possibility and even presents the risk of personal liability for directors of companies who are deemed to exercise some level of “control” over works that are being carried out. In a recent case a labourer successfully claimed damages from a tenant and one of its directors, after suffering severe injuries when he was working on a property that was being renovated.

The tenant was a company set up to run a medical clinic and had taken a lease of a property that needed to be refurbished and fitted out before it could accept patients. The works were being carried out by various small contractors. One of the contractors – a self employed carpenter – was known personally to the director of the tenant because he had carried out works at the director’s home.

Although the works were being commissioned and paid for by the company, which was of course legally distinct from its directors, all instructions and authorisations were given by the tenant’s director. There were very few formal contracts in place and no site foreman or other professional control of the works.

Part of the project involved fitting a walkway into the roof space of the building to allow access to the air conditioning units. The carpenter directed one of his casual labourers to do this work. No risk assessment was made before the work was carried out, nor was there any safety equipment in place. Unfortunately, the labourer fell from the area where he was laying the walkway and through the suspended ceiling below, suffering severe injuries which have left him permanently disabled.

Normally a labourer would sue his employer for failing to take proper care to ensure that the works could be carried out safely. However, the carpenter was the classic “man of straw” – he had no significant assets and no insurance. The labourer therefore brought a claim against the tenant and the director in her personal capacity. The claim was based on negligence and breach of the applicable health and safety legislation, in particular the Construction (Health, Safety and Welfare) Regulations 1996 and the Work at Height Regulations 2005.

These Regulations impose duties on a person (or company) with “control” of the work that is being carried out. Several people can be in control – and, therefore, have duties – at the same time, and it is possible for someone to have control even if they are not directly instructing the people carrying out the work.

In this case, the company and the director were both found to be in control of the works in the roof spaces. The director – and through her, the company – knew that the carpenter was not competent to supervise or plan work at height, and she was the person who specified the scope of the project and could have restricted access to the roof.

Crucially, neither the director nor the company had employed anyone to look after health and safety matters – the court emphasised that the duties of the tenant and the director could have been formally delegated to a competent third party under a separate contract, but that this would have required a properly documented contractual arrangement.

Although this case related to substantial works where more detailed arrangements should have been in place, it is easy to see how such details might also get overlooked on more “routine” projects, such as minor maintenance or building works. However, the same principles apply regardless of the size of the job. If the company or person commissioning the work is not able to manage the health and safety aspects of the project properly, it is important that contractual arrangements are made for another party to take on this responsibility and for their competence to be checked and confirmed. By taking these simple steps the risk of accidents (and associated claims against landlords, tenants and directors) can be reduced.

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