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Before:

LORD JUSTICE MAY


LORD JUSTICE GAGE
and
LADY JUSTICE HALLETT
____________________

Between:
E H Humphries (Norton) Ltd Appellant 1
Thistle Hotels plc Appellant 2
- and -
Fire Alarm Fabrication Services Ltd Respondent

____________________

(Transcript of the Handed Down Judgment of


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____________________

Martin Porter QC (instructed by Beachcroft LLP) for Appellant 1


Colin McCaul QC (instructed byDLA Piper Rudnick Gray Cary) for
Appellant 2
Derek Sweeting QC and Steven Ford instructed by (Messrs Vizards
Wyeth) for the Respondent
____________________

HTML VERSION OF JUDGMENT


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Crown Copyright ©

Lord Justice Gage:

1. On 9 January 2001, Ian Gray, a fire alarm installation engineer,


employed by Fire Alarm Fabrication Services Ltd (FAFS) fell
through a skylight window in the roof of a building at Victoria
Station. As a result of injuries sustained in the fall he died. His
widow, Barbara Gray, brought a claim under the Fatal Accidents Act
1976 and, as administratrix of his estate, a claim for damages for
negligence and breach of statutory duty arising out of his death.
2. The claims were made against FAFS, the first defendant, E H
Humphries (Norton) Ltd (Humphries), the second defendant and
Thistle Hotels Ltd (Thistle), the third defendant.
3. Barbara Gray's claims were settled by an admission of liability by
FAFS and a consent judgment against it for £400,000 together with
costs entered on 6 December 2005. Mrs Gray discontinued claims
against Humphries and Thistle. FAFS was left to pursue Part 20
proceedings against Humphries and Thistle for contribution to the
judgment sum paid by FAFS to Mrs Gray.
4. By a judgment given on 3 March 2006 His Honour Judge Marr-
Johnson found both Humphries and Thistle negligent in respects
causative of the accident and ordered each to contribute to the
damages for which FAFS was liable. The judge assessed the
responsibility of each of these three parties on apportionment as 50%
to FAFS, 30% to Humphries and 20% to Thistle. Humphries and
Thistle appeal against the orders for contribution made by the judge,
permission having been refused by the judge but granted by Scott
Baker LJ.

The Facts

5. The facts relating to this tragic accident can be shortly stated and in
the main are not in dispute. The judge described FAFS as a small
company specialising in the installation and maintenance of
commercial fire alarm systems. The deceased was one of four
shareholders of the company and an experienced installation
engineer. He and his work colleagues had some previous experience
of working at the premises where the accident occurred. The premises
were the Grosvenor Hotel, Victoria Station, London. They were
occupied by Thistle as a hotel, but did not include flat roof adjacent to
the rear wall of the premises. The latter were owned and occupied by
Railtrack plc.
6. Humphries is a company specialising in electrical contracting.
7. In or about 2000 Thistle decided that the hotel required
refurbishment. It appointed Humphries as the main contractor for
electrical work but required Humphries to appoint FAFS as sub-
contractors for the installation of a new fire alarm system. Humphries
sub-contracted that work to FAFS by an agreement dated 24
November 2000. The value of the work was £141,750 less 5%
retained by Humphries.
8. On Monday 8 January 2001 FAFS started work. At that stage the
route for the new electrical cables for the fire alarm system had not
been decided. There were three options:
i) To route the cables externally along the route of the existing
cabling;

ii) To route the cables internally around ceilings and cornices;

iii) To route the cables internally but boxing them in.

9. In the event, a decision was made by FAFS to route the cables


externally. This involved gaining access to the roof and routing the
cabling along an existing cable tray fixed to the external wall. Access
to the roof was gained through an open window. From there it was
possible to walk along a walkway with the wall on the outside of the
walkway and the roof on the inside.
10. There were no eye witnesses to the accident. The judge found that in
walking along the roof in this somewhat confined space the deceased
must have stumbled or slipped so projecting himself head-first
through a plate glass window on his right-hand side. The judge found
that panels of the window were much obscured with dirt but it was
safe to assume that the deceased did not walk on them.
11. The deceased fell into an office occupied by Railtrack and onto a
metal filing cabinet. The force of the collision between his head and
the filing cabinet caused severe injuries from which he died.
12. It was the case for Humphries and Thistle that FAFS had been
instructed not to route the cable externally. Witnesses for each of
these two defendants gave evidence that such instructions had been
given to Mr John Butler of FAFS at a meeting on 12 December 2000.
Mr Butler denied that any such instructions had been given to him.
The judge preferred Mr Butler's evidence to the evidence of other
witnesses. In his judgment he said (see para 28):

"In the result I have reached the conclusion that


although stray remarks may possibly have been made by
various persons at different times during the meeting,
perhaps as an aside or a casual observation, no one made
it clear to Mr Butler that he was not to proceed with the
third option of external cabling, and that he left the
meeting reasonably under the impression that it was for
FAFS to decide which route to pursue. Equally I am not
satisfied that Mr Butler told the meeting that the roof
was "precarious" or unsafe in some way or that it was
brought home to him that any other person considered the
roof to be dangerous. I accept his evidence that it was a
long time since he had been on the roof himself, and he
had no recollection one way or another about the state of
the roof at the time of the meeting. What he did know,
and what he told the others, was that the line of the
existing cable lay along an external length of wall and
that it was an option to lay the new cable along the same
route as before. In general terms I accept the substance
of Mr Butler's evidence on this topic."

13. Part of this finding of fact is challenged by both Humphries and


Thistle.

The Judge's findings on liability

Humphries

14. The judge having referred to a number of authorities cited to him held
that Humphries as main contractors in overall charge of the electrical
work owed a duty to take reasonable care for the deceased's safety.
He said (para 32):

"So far as Humphries are concerned, the case against them


in essence is that as main electrical contractors in
overall charge of the electrical work which needed to be
done on site, including installation of the new fire
alarm system, they owed Mr Gray as one of the persons who
would be directly affected by their decisions a duty at
common law to take reasonable care for his safety. The
potential existence of such a duty is well established in
cases such as Clay (supra) and McArdle v Andmac
Roofing Co [1967] 1 ALL ER 583. A more recent example
is Davis v Earldene and Others unreported, CA QBENF
98/0242/1. 23 February 1999. In the present case the
existence of such a duty is confirmed, and its scope
defined, in my judgment by the following considerations:
i. The quote for the work which Humphries received
from FAFS was for £134,662, and their own quote to
Thistle was £148,834. Thus the premium which
Humphries were charging for supervising the
contract (rounded off) was £14,171. Clearly a
substantial degree of supervision was envisaged in
return for such a payment.
ii. That quote contained the words "we require
daily liaison" and an assurance that the work would
be carried out "in accordance with the Factories
Act".
iii. The order Humphries placed with FAFS on 24
November 2000 requested a method statement, risk
assessment and programme of works. It stated "all
work to be agreed and carried out with the close
liaison with Mr CD Lewis contracts manager".
iv. Mr Lewis told Health and Safety investigators
that he was prepared to prevent FAFS from starting
on site if risk assessments were not supplied.
v. Humphries' standard terms and conditions
provided that FAFS' work had to be carried out to
Humphries satisfaction and in conformity with all
reasonable directions by Humphries, and that FAFS
must comply with Humphries' health and safety
policy.
vi. That policy acknowledged Humphries' duty to
"co-ordinate safety activities between main
contractor, sub-contractor and any other
individuals who might be working on the same site".
There was evidence that there were other workmen on the
roof at the time when FAFS was carrying out work under
the sub-contract. Two men employed by a Railtrack sub-
contractor were the first to find the deceased after his
accident.

15. The judge went on to describe the facts which led him to conclude
that Humphries were in breach of that duty. In summary, he held that
one of Humphries' employees, Carl Lewis, their senior contracts
manager, failed to obtain from FAFS either a proper method
statement of the work to be carried out or a proper risk assessment.
The judge described the risk assessments actually provided by FAFS
as "self-evidently insufficient for the purpose". The risk assessments
are in the appeal documents and the judge was plainly correct so to
describe them. He criticised Mr Lewis for doing no more than
forward them to Thistle. He said that Mr Lewis appeared to be under
the impression that any liaison with FAFS or supervision of their
activities ought to be carried out by Thistle. He continued (see para
34):

"In my judgment this was a wholly unwarranted assumption


on Mr Lewis's part and, of course, completely the reverse
of the true contractual situation. If Mr Lewis had called
for a proper risk assessment and method statement from
FAFS he would have realised that there was a proposal to
carry out work which would entail FAFS' employees walking
on the roof outside the hotel and Humphries, as the main
contractor in charge of coordinating safety activities,
ought then in my judgment either to have forbidden the
work or alternatively have taken energetic steps to
ensure that it could be done in safety. If Humphries had
taken such action, in all probability Mr Gray's accident
would have been avoided. The matter does not rest there,
however, because on my findings Mr Lewis was informed at
the meeting on 12 December that Mr Butler was considering
the external option for routing the new cable. He
therefore had actual knowledge that FAFS were
contemplating the possibility of work which would require
their employees to go out on the roof. Again, energetic
steps should have been taken to prevent that happening,
at all events until a safe system for doing the work had
been devised."

Thistle

16. The basis of the judge's finding that Thistle was negligent was that it
possessed special knowledge which it ought to have passed on. He
found that following the meeting on 12 December 2000 Thistle knew
that FAFS were contemplating work which would require access to
the roof. It also knew that Railtrack did not allow anyone to go onto
the roof for any purpose unless it was in accordance with Railtrack's
permit to work system.
17. It was common ground before the judge that a building owner is only
liable to carry out some supervision of the activities of an apparently
competent contractor or sub-contractor where the building owner has
some special knowledge or in special circumstances (see Ferguson v
Welsh 1987 1 WLR 1553).
18. Here, Thistle admitted knowledge of Railtrack's policy in relation to
access to the roof. It was also accepted that this knowledge was not
passed on to either Humphries or FAFS. The judge said after asking
rhetorically "Did such special circumstances exist in this case?" (para
41):

"In my view they did. Thistle either knew or ought to


have known that FAFS' employees had been in the habit of
going out on to the roof for repairs to the system over
the past quarter of a century. So far as is known those
employees had never been reproved or told not to go there
without the permission of Railtrack or its predecessors.
On 12 December Thistle were told that FAFS were
contemplating the possibility of work which would require
further access to the roof. Their case is of course that
Mr Butler was instructed unequivocally to abandon the
external option, but I have found earlier that they
failed to make that instruction clear and Mr Butler was
left under the impression that he could, if he chose,
route the cable externally. In my view Thistle owed a
duty to FAFS and their employees to make the true
position plain beyond any doubt and that they failed, on
my findings, to do. In my judgment this failure was
negligent conduct on their part and contributed in some
measure to the death of Mr Gray. "

Apportionment
19. The judge's conclusions on apportionment are set out in paragraph 54
of his judgment and are as already described.

The grounds of appeal

20. In its notice of appeal Humphries relies on five grounds. They are:

1. The judge wrongly found that Humphries owed a


duty of care to the deceased;
2. The judge wrongly found that Humphries were in
breach of a duty of care;
3. The judge erred in concluding that the breaches
that he found were causative of the deceased's
accident;
4. The judge wrongly rejected Humphries claim to be
entitled to a contractual indemnity from FAFS in
respect of damages;
5. The judge's apportionment of 30% was, in all the
circumstances, excessive.

21. Thistle relies on three grounds of appeal:

1. The judge was wrong to hold that Thistle's


knowledge of Railtrack's permit to work policy was
a special circumstance the non-disclosure of which
amounted to a negligent breach of a duty of care
which was causative of the accident;
2. The apportionment of 20% was in all the
circumstances excessive.
3. The judge's finding in respect of Mr Butler's
knowledge and state of mind concerning the options
to route the cable following the meeting of 12
December 2000 was wrong.

The Challenge to the Judge's findings on the main factual issue

22. Humphries and Thistle make common cause in challenging the


judge's findings on this issue in one material particular (ground two,
Humphries; ground three, Thistle). It is clear that this finding by the
judge played a significant part in his conclusions on duty of care in
respect of both Humphries and Thistle. For this reason it seems
sensible to start with these grounds of appeal.
23. At paragraph 25 of his judgment the judge recorded that he found Mr
Butler an honest and convincing witness. He said that Mr Butler left
the meeting of 12 December 2000 "wholly satisfied in his own mind
that at the conclusion of the meeting it was left open to him to decide
which of the three cabling options to pursue".
24. At paragraph 28 of the judgment, within the passage already referred
to, there appears the following findings of fact:

"In the result I have reached the conclusion that


although stray remarks may possibly have been made by
various persons at different times during the meeting,
perhaps as an aside or casual observation, no one made it
clear to Mr Butler that he was not to proceed with the
third option of external cabling, and that he left the
meeting reasonably under the impression that it was for
FAFS to decide which route to pursue".

25. It is submitted by both counsel for the appellants that this finding was
not open to the judge on the evidence. We have been referred by
counsel to Mr Butler's evidence and a number of documents in
support of this submission.
26. Mr Derek Sweeting QC, on behalf of FAFS, accepted that this finding
by the judge put Mr Butler's evidence "a little too high". However he
submitted that it made no difference to the judge's conclusions on
duty of care. I shall return to the latter submission later in this
judgment.
27. The minutes of the meeting of 12 December 2001 at which Mr Butler,
Mr Lewis and Mr Sloan, among others, were present record that:

"2.3 West Wing 2nd to 3rd Floor crossing between Wing


and Main Building to be agreed/some surface wiring may be
required."

28. It is common ground that this is a reference to the different routes for
the fire alarm cable. In an interview under caution conducted by the
Environmental Health Officer on 10 September 2001 Mr Butler, in
answer to questions, said (JB is Mr Butler):

"JB The running of the cable on the exterior of the wall


was one of three alternatives that was discussed.
RJS Was it agreed with Humphries that this would be the
method to run the wiring?
JB That's that's (sic)  at the meeting prior to the
accident, no it wasn't agreed, it was agreed that that
would be one of three alternatives to be investigated."

And a little later in the interview:

"JB The running of the cable on the outside was merely an


alternative it was down to us to investigate those three
alternatives.
RJS Did you investigate those alternatives?
JB Regretfully that was what we were doing effectively
when the accident happened. It appears that to me and
this is only my opinion that Andrew and Ian investigated
the exterior run for the cable, decided it was relatively
simple exercise and started to carry it out"
Andrew and Ian were respectively Andrew Penney and the
deceased, Ian Gray.

29. In his evidence Mr Butler was asked about what occurred at the
meeting on 12 December 2000 at which some of those present had
apparently been on a walkabout:

"Mr Ford: Did you make those people who were present on
the walkabout aware of those two alternatives? A. I did.
Q Was anything said about the safety implications of any
of those options?
A. No.
Q Was any decision taken about which of those three
options ought to be decided on? A. Not at that time."

Later in cross-examination by Mr Martin Porter QC on behalf of


Humphries the following exchange took place:

"Mr Porter: I accept you and I do not agree about this,


but you maintain the insistence that the three options
that are in your statement were actually thought of on 12
December? A. The three options were certainly relayed at
to (sic) the meeting of 12 December.
Q But, even on your case, only as options at that stage?
A. Yes.
Q You never communicated the option had become a
confirmed option or the chosen option? A. We did not
relay the chosen option, no.
Q Indeed, you did not even give Mr Gray and his
colleagues any guidance as to which should be chosen
option 3? A. I did not.
Q You left it entirely to Mr Gray and his colleagues to
decide? A. Yes."

30. On this evidence, in my judgment, the judge's finding that Mr Butler


left the meeting of 12 December 2000 "under the impression that it
was for FAFS to decide which route to pursue" cannot stand. As
appears from the above documents and extracts from Mr Butler's
evidence the most that can be said is that it was for FAFS to
investigate which route would be the best option and to report back
for an agreed decision.

Humphries appeal – Ground one


31. In ground one Humphries challenged the judge's findings that it owed
a duty of care to the deceased. Mr Porter made two principal
submissions. First, he submitted that the general rule is that a main
contractor does not owe a duty of care to employees of a sub-
contractor. The duty to provide a safe system and method of work for
an employee rests with his employer alone. He submitted that the
facts did not justify the judge departing from this general rule and
finding that Humphries owed a duty of care to the deceased.
32. Secondly, Mr Porter submitted that in this case the judge imposed on
Humphries a duty to scrutinise method statements and risk
assessments which was akin to imposing a duty provided by the
Construction (Design and Management) Regulations 1994. He
pointed out that the Regulations did not apply to the contract made
between Humphries and FAFS for the work of installing the fire
alarm system. Further, he criticised the judge on the basis that, in any
event, the Regulations imposed criminal liability alone and
specifically excepted a civil cause of action in respect of a breach of
them.
33. In support of the first submission Mr Porter relied on McArdle v
Admac Roofing Co & Others 1967 1AER 583; Ferguson v
Welsh and Makepeace v Evans Brothers (Reading) & Anr [2000]
BLR 287.
34. In my judgment there can be no doubt that in certain circumstances
both an independent contractor and an occupier of a building can owe
a duty of care to the employee of a sub-contractor. In Ferguson v
Welsh, a case involving an occupier in the context of a duty to ensure
that a contractor engaged by the occupier of the building was
competent to carry out the work for which it was engaged, several
members of the House of Lords described those circumstances as
"special circumstances".
35. In Makepeace v Evans Brothers (Reading) Mantell LJ giving the first
judgment of the Court accepted that as a general rule an occupier of a
building did not owe a duty of care for the safety of employees of its
independent contractor. However, he said that he would not rule out
occasions when such a duty of care might arise and proceeded to cite
some examples from other authorities.
36. Whilst the obiter observations of the members of the House of Lords
in Ferguson v Welsh are deserving of great respect, it is to be noted
that the facts of that case were far from the facts of this case.
In Ferguson v Welsh the House of Lords was concerned with the duty
of an occupier to engage a competent contractor. In my judgment,
where an independent contractor has sub-contracted work the
question of whether the independent contractor will owe a duty of
care to employees of its sub-contactor is one of mixed fact and law. I
accept, and it was common ground before the judge, that in general
no duty of care arises, but as Mantell LJ pointed out, there will be
circumstances where such a duty will arise. In my opinion, it is
unnecessary and unhelpful to attempt to formulate any specific test
for deciding when such a duty arises. As Brooke LJ pointed out
in Bottomley v Todmorden Cricket Club [2004] PIQR 276 the facts of
each case are to be tested by "applying the range of tests for
identifying a legal duty of care which the House of Lords has
developed in the years that followed Ferguson v Welsh".
37. Turning to the facts of this case, the judge expressed the duty of care
as confined and defined in its scope by the six factors set out in
paragraph 32 to which I have already referred. For my part, I accept
that the judge was entitled to hold that in the circumstances of this
case such a duty of care did exist. In particular, in my judgment, the
fact that Humphries bound FAFS contractually to carry out work "to
be agreed and carried out with close liaison with Mr C D Lewis
contracts manager" is significant. The building was occupied by
others either working or as guests in the Hotel. Railtrack staff might
be present in offices in the floor below the roof. In the circumstances,
it seems to me that the judge was entitled to hold that Humphries'right
to supervise the work so as to ensure it was carried out safely
imposed on it a duty of care which extended to the employees of
FAFS.
38. In finding that there was such a duty I reject the submission, based on
the Construction (Design and Management) Regulations. In my view
they have no relevance in this case. I do not accept that in holding
that there was a duty of care the judge was in any way influenced by
those Regulations or that on the facts of this case the judge was
extending the common law beyond what was permissible. He was, in
my opinion, simply making a finding on the specific facts of the case.

Grounds two and three

39. These two grounds involve some overlap and I will deal with them
together. Mr Porter submitted that the judge erred in finding that
Humphries was in breach of its duty of care by failing to call for
proper risk assessments and method statements. He also erred in
finding that Humphries failed to take energetic steps to prevent work
on the roof.
40. Essentially, the judge's findings of breach of duty of care centred on
the fact that, as he found, following the meeting of 12 December
2000 Humphries knew that one of the methods of carrying out the
work was the external route. He held that Humphries at that stage
should have called for a proper method statement and risk
assessment. Mr Porter submitted that not only was this exacting too
great a standard of care but on the evidence it was unjustified. To
understand this submission it is necessary to refer to some of the
unchallenged evidence.
41. I have already set out my conclusions on the judge's findings of fact
in relation to Mr Butler's state of mind following the meeting of 12
December 2000. So far as Humphries and Thistle are concerned the
minutes of the meeting show that the question of which option to
adopt was to be agreed. In evidence Mr Butler agreed that at the
meeting the question of which route to use for the cables had not been
decided. He said in answer to the question "How was it left?" "It was
left for us to investigate further effectively".
42. The documents show that the risk assessments reached Humphries on
Friday, 5 January 2001. On that day Mr Butler discussed "various
aspects of the work" with the deceased (see Mr Butler's witness
statement of 10 September 2001). Mr Andrew Penney was still on
holiday and no representative of Humphries was present at that
meeting. Mr Butler said that he and the deceased investigated some of
the cable routes, presumably, meaning the existing cable routes.
43. Mr Penney returned from holiday on 9 January 2001. In his witness
statement and in evidence he said that when he came on site the
deceased was present. His witness statement of 5 May 2001 contains
the following passages:

"After some discussion it was decided that Mr Ian Gray


and myself would take the annex part of the job. After
further discussion with Mr Ian Gray it was decided to use
the existing cable tray on the outside wall of the hotel.
Whilst Ian was working inside the corridor, I went
outside onto the roof to make use of an existing cable
tray which was fixed to the outside wall of the hotel to
run my cable"

He added in that statement that after about one and a half hours the
deceased came out to give him a hand. Shortly afterwards Mr Penney
went to attend to parking arrangements for his van. On his return the
accident was discovered.

44. In evidence Mr Penney agreed that the decision to use the external
route was made by him and Mr Gray. He also agreed that this
information was not relayed to anyone from Humphries or Thistle.
Mr Butler in evidence also agreed that confirmation that the external
route was to be used was not communicated to either Humphries or
Thistle.
45. The submission made on behalf of Humphries is that on the basis of
this evidence there can be no question of Humphries being in breach
of its duty of care. It is submitted that the position following the
meeting of 12 December was clear. FAFS was to investigate the three
options and report back so that a decision could be made. It was not,
as the judge erroneously found, that it was left to FAFS to make the
decision. In fact, neither Humphries nor Thistle was given any
opportunity either to participate in the decision to adopt the external
route or to comment on it. The risk assessments gave no indication
that this option was to be adopted and only reached Humphries on 5
January 2001. There appears to have been no more than a cursory
inspection, if any, before the decision was made by Mr Penney and
the deceased to adopt the external route. In the circumstances it is
submitted that the question of calling for a method statement and risk
assessment had not arisen before the work started.
46. In response to this submission Mr Sweeting submitted that even if the
option of the external route was to be the subject of investigation and
confirmation the fact that Humphries knew it was an option was
sufficient to raise the requirement that it should call for a method
statement and risk assessment immediately following the meeting. He
submitted that the need for investigation would inevitably mean that
men would have to go onto the roof to make the investigation. This
knowledge should have alerted Humphries to call for the appropriate
risk assessments.
47. For my part, I accept that on the unchallenged evidence the judge was
wrong to hold that Humphries were in breach of a duty of care owed
to the deceased. In my view, Humphries cannot properly be criticised
for not calling for a method statement or risk assessments when to
their knowledge the question of which route to take was to be
investigated and the subject of agreement before the work was carried
out. It is clear that at no time before the accident was Humphries
informed that the external route was to be used.
48. I accept that the judge was quite entitled, and indeed correct, to find
that Mr Lewis' treatment of the risk assessments received by him on 5
January 2001 was a complete misconception of his obligation to
scrutinise them. But there was nothing in the risk assessments to
indicate to him that the external route was to be used. In any event, in
my judgment, Mr Lewis' fault in dealing with the risk assessments on
5 January 2001 cannot in the circumstances be said to have been a
contributory cause of the deceased's accident.
49. As to the submission that Humphries should have appreciated that an
investigation would lead workmen to go onto the roof, there is no
evidence that that was so. FAFS knew the route of the old cables
from their previous work. Furthermore, there is no evidence that any
of Mr Butler, Mr Penney or the deceased actually went on to the roof
to make an investigation, let alone thought it was necessary to go onto
the roof before the work started. Indeed, Mr Butler in evidence agreed
that he thought going onto the roof to install the cable was a
negligible problem.
50. Accordingly, in my judgment, the judge was wrong to conclude that
Humphries was in breach of a duty of care owed to the deceased.
51. It follows that for these reasons I would allow Humphries' appeal and
dismiss the claim by FAFS for contribution. That being so it is strictly
unnecessary for me to deal with grounds four and five of Humphries'
notice of appeal. However, since we have heard full argument on both
grounds I shall express my views on each briefly.

The contractual indemnity – ground four

52. The contract between Humphries and FAFS contained the following
provisions:
1. "The Sub-Contractor will
diligently and safely carry out
the works to a high quality and
in any event to the reasonable
satisfaction of the company
within the period specified and
in conformity with all reasonable
directions of EH Humphries
(Norton) Ltd."

1. "The Sub-contractor will


indemnify EH Humphries (Norton)
Ltd against any loss damage or
claim arising from the Sub-
Contractor's failure to complete
the work in a proper and
workmanlike manner within the
period and in addition shall
indemnify EH Humphries (Norton)
Ltd in respect of any liability
or costs that the company incurs
as a direct result of breach of
any terms of this order."

1. "The Sub-Contractor warrants….2.


That it will comply with the
company's Health and Safety
policy full details of which the
Sub-Contractor acknowledges to
have received prior to the date
hereof."

The judge held that these provisions were not sufficient


to make FAFS liable to indemnify Humphries for the
damages resulting from the deceased's death. He found
that the damages for which indemnity was being sought
arose out of Humphries' own negligence and that the
language of the above clauses was not apt to make FAFS
liable to indemnify Humphries in respect of such damages.

53. There is no dispute in this court that the contractual provisions do not
permit Humphries to be indemnified for damages arising out of its
own negligence. However, it is submitted by Humphries that in this
case the damages all arose out of FAFS' failure to comply with the
contractual term requiring it to carry out the work safely and in
accordance with Humphries' Health and Safety Policy. It was this
failure that caused Humphries to be in breach of a duty of care. The
issue is a narrow one.
54. FAFS' submission on this ground is simple. It submits that the
liability of Humphries is independent from FAFS' liability. If FAFS
had not been sued Humphries, on the judge's findings, would still be
liable to be deceased for a breach of its duty of care.
55. In my view FAFS and the judge are correct. The liability of
Humphries is independent of FAFS' liability. It is liable for its breach
of duty and would have been liable to compensate Mrs Gray if she
had proceeded with her claim against it. In my judgment the
contractual term is not sufficient to make FAFS bound to discharge
that liability.
56. I leave apportionment until after I have dealt with Thistle's first
ground of appeal to which I now turn.

Thistle's appeal

57. I have already dealt with Thistle's third ground of appeal challenging
the disputed issue of fact. In its first ground of appeal Thistle
challenges the judge's finding that it owed a duty of care to the
deceased and that it was in breach of that duty.
58. It is clear from his judgment that the basis for the judge's finding that
Thistle was in breach of a duty of care owed to the deceased was
Thistle's knowledge that Railtrack, the owners of the roof, did not
permit any person to go on the roof without a permit for work first
being obtained from it. The judge held that this amounted to special
circumstances within the principles established by Ferguson v Welsh.
59. Mr Colin McCaul QC, for Thistle, submitted that knowledge of
Railtrack's permit to work system could not amount to special
circumstances giving rise to a duty of care owed to an employee of
FAFS. Further, although Mr McCaul accepted that this knowledge
ought to have been passed on to either or both of Humphries and
FAFS, he argued that the failure to do so did not constitute a breach
of any duty of care.
60. Mr Sweeting submitted that the judge's conclusions were correct for
the reasons which he gave. He emphasised a number of factors which
he submitted supported those conclusions. In particular he submitted
that Thistle, not being the occupier of the roof and the floor below,
had no means of knowing that there was no hidden trap in the roof.
Thistle knew that the roof was dangerous. It could foresee that any
workmen working below the roof or any member of the public
standing or walking on the station concourse might be affected by
work being carried on by employees of FAFS on the roof. In the
circumstances knowledge of Railtrack's permit to work system
amounted to special circumstances within the Ferguson v
Welsh principles.
61. Again, before setting out my conclusions on this ground of appeal I
must refer to some further unchallenged evidence. Mr Michael Sloan,
Thistle's general manager, when giving evidence said that he knew of
Railtrack's permit to work system. He said that if a maintenance team
wanted to go anywhere on the station it would have to "sign in" at the
duty manager's office on the station.
62. Before the judge there was a letter from Railtrack to the
Environmental Regulatory Services dated 25 February 2002, in which
it gave answers to questions asked of it arising out of this accident.
The following are material:

"3. Did Railtrack recognise the roof as fragile?


The station roof area is listed as a hazardous area in
the Station Hazard Directory.
4. Was there any agreement between Railtrack and
Thistle? Did Railtrack warn Thistle by way of notices or
otherwise?
All high level glazed areas present risks hence Railtrack
has a high level permit system in place. The relevant
hazard directory is kept in Victoria Station reception
and anyone requiring access to the roof must sign in at
reception. They are then briefed on access arrangements
and must satisfy a Railtrack designated member of staff
that they are competent to undertake the work they are
intending to do. They must also have radio contact at all
times. Method statements and risk assessments are
required 7 days in advance of any works being undertaken
on the station."

63. It was this information which the judge, no doubt, had in mind when
concluding, as he did, that Thistle's breach contributed materially to
the accident.
64. It is apparent that the judge's findings in respect of duty of care and
breach were underpinned by his finding that Thistle knew from the
meeting on 12 December 2000 that FAFS were contemplating the
possibility of work which would require access to the roof. Again, in
my judgment, the judge's erroneous finding that Mr Butler was under
the impression that he could "if he chose route the cable externally"
clearly played a significant part in the judge's conclusions. This error
has also to be seen against the background of the evidence of Mr
Butler and Mr Penney to which I have referred when dealing with
Humphries' appeal.
65. In my judgment on the basis of the unchallenged evidence of Mr
Butler and Mr Penney, the stage was never reached when it could be
said that failure by Thistle to disclose the existence of the permit to
work system amounted to a breach of a duty of care to the deceased.
There is no evidence that at any stage before the accident Thistle
knew that the external route had been chosen. As I have already said
it is clear that this decision was made by Mr Penney and the deceased
very shortly before the accident occurred. In the circumstances, in my
judgment, the judge was wrong to find that Thistle was negligent for
not having passed on this information at an earlier stage.
66. In reaching this conclusion I do so on the basis that even if the
possession of knowledge of Railtrack's permit to work system gave
rise to a duty of care to employees of FAFS, failure to disclose it
before 9 January 2001 did not amount to a breach of that duty.
67. Whether or not possession of that information could give rise to a
duty of care owed by Thistle to the deceased is, in my opinion a more
difficult issue. In view of my findings above it is unnecessary to reach
any concluded view on it. Mr McCaul submitted that where, as here,
Thistle had engaged a competent contractor to carry out the work
through the medium of a competent sub-contractor on a part of the
building which the judge found was obviously dangerous, it would
not be fair, just and reasonable to impose on Thistle a duty to take
care for the safety of the sub-contractor's employees.
68. Mr Sweeting argued that possession of this information clearly gave
rise to a duty of care owed by Thistle to any person injured on the
station from work being carried out by FAFS' employees and also to
any employee of Railtrack working in the premises. He submitted that
no distinction was to be made between such persons and employees
of FAFS.
69. We were referred by counsel to Ferguson v Welsh and Bottomley v
Todmorden Cricket Club on this issue. In my view neither the
"special circumstances" test (Welsh v Ferguson) nor the "extra-
hazardous" test (Bottomley v Todmorden Cricket Club) is particularly
apt to deal with the facts of this case. I readily accept, as Mr McCaul
conceded, Thistle ought if the circumstances arose which required it
to do so, to have disclosed the existence of the permit to work system.
Among other reasons for doing so, any person going on the roof
without permission would be a trespasser. But, I incline to the view
that this information in the circumstances of this case was not capable
of giving rise to a duty of care owed by Thistle to an employee of
FAFS. As to whether it was capable of giving rise to a duty of care
owed to other members of the public I express no opinion.
70. It follows that on my findings in respect of breach of duty Thistle's
appeal succeeds and the claim for contribution against it must also be
rejected.

Apportionment

71. This only leaves the question of apportionment raised in grounds of


appeal by both Humphries and Thistle. Complaint is made by both
Humphries and Thistle that in assessing apportionment the judge
expressed the view that he might have apportioned FAFS'
responsibility at greater than 50% had FAFS been a bigger
organisation. In my opinion this was a factor which the judge was
entitled to take into account but one to which I would have attached
little weight.
72. As is well known, this court seldom interferes with a judge's
discretion in respect of apportionment. I content myself with stating
that I would have assessed FAFS' responsibility at rather greater than
50%. I see no reason to conclude that the ratio of apportionment
between Humphries and Thistle was wrong.

Conclusion

73. For the reasons given above I would allow the appeals of both
Humphries and Thistle.

Lady Justice Hallett

74. I agree

Lord Justice May:

75. I agree that the appeals of both Humphries and Thistle should be
allowed for the reasons given by Gage LJ, whose account of the facts
and circumstances of the appeals I gratefully adopt. I agree with his
analysis of the contractual indemnity in paragraphs 53 to 57 of his
judgment and do not wish to add anything on that topic.
76. As to the other grounds of appeal, negligence claims such as those
under consideration in the present appeal are habitually presented or
opposed with submissions, and by reference to authorities, which
consider whether a defendant in the generic position of the particular
defendant owes a claimant in the generic position of the particular
claimant a duty of care; for example, whether a building owner or
contractor in the construction industry owes a duty of care to an
employee of a subcontractor who has been injured or killed. The
usual relationship between a building owner or contractor and the
employee of a subcontractor may well result in a decision in a
particular case that there is no duty of care and so no claim in
negligence. But there may be "special circumstances" when a claim in
negligence by the employee of a subcontractor may succeed against
the contractor or the building owner. Likewise, those presenting and
opposing claims such as these will address the elusive concept of
causation in support of or in opposition to the claim. In doing so, they
will necessarily address much the same facts as informed their
analysis of the duty of care and its breadth.
77. Compartmental analysis of this kind is convenient for presentation,
but conceptually suspect. I would refer here for convenience to a
short passage in my judgment in S. v Gloucestershire County
Council [2001] Fam 313 at 337F, since it abstracts relevant House of
Lords authority, as follows:

"A negligence claim is habitually analysed


compartmentally by asking whether there was (a) a duty of
care; (b) breach of that duty and (c) damage caused by
the breach of duty. But damage is the essence of a cause
of action in negligence and the critical question in a
particular case is the composite one, that is whether the
scope of the duty of care in the circumstances of the
case is such as to embrace damage of the kind which the
plaintiff claims to have suffered. As Lord Bridge of
Harwich said in the Caparo case [1990] 2AC 605, 627:
"It is never sufficient to ask simply whether A owes B a
duty of care. It is always necessary to determine the
scope of the duty by reference to the kind of damage from
which A must take care to save B harmless." Lord Oliver
of Aylmerton emphasised the same point in Murphy v
Brentwood District Council [1991] 1 AC 398, 486 when he
said:
"The essential question which has to be asked in
every case, given that damage which is the
essential ingredient of the action has occurred, is
whether the relationship between the plaintiff and
the defendant is such … that it imposes upon the
latter a duty to take care to avoid or prevent that
loss which has in fact been sustained."
This question necessarily subsumes the question whether
the acts or omissions of the defendant caused the damage
relied on."

Both Caparo and Murphy were mainly concerned with negligence


claims where the damage is characterised as economic loss. But the
same principles apply to all negligence claims. Personal injury or
physical damage directly inflicted by the actions of a defendant do
not often need sophisticated analysis of the underlying legal structure
to formulate a claim in negligence. But where the damage is
economic or where, as in the present case, personal injury or death
were not directly inflicted by the relevant defendants, a composite
question arises by reference to the particular facts.

78. Agreeing with Gage LJ, I am persuaded that the judge in the present
case made factual findings which were not open to him on the
evidence. The difference is fairly narrow, but, in my view, critical.
We have the benefit of a transcript of the evidence, and I imagine that
the judge did not. The crucial facts therefore were that the meeting of
12th December 2001 left it that three possible routes for the fire alarm
cable would be investigated; that no decision was reached as to which
route would be taken; that FAFS were to report back to Humphries
and Thistle once the investigation had been undertaken; but that
FAFS did not do this. On the contrary, in the persons of Mr Gray and
Mr Penney, FAFS unilaterally decided to use the external route
without instructions from Humphries or Thistle and without telling
them. This was contrary to what had been agreed at the meeting on
12th December 2001.
79. These being the facts, I do not consider that the relationships between
Mr Gray and Humphries or Thistle were in the circumstances such as
to impose on either of them a duty to take care to avoid or prevent the
tragic accident which in fact occurred. It had not been decided that
the cable would be routed externally and, put bluntly, what FAFS did
was unauthorised. I do not consider that Thistle owed a duty to Mr
Gray to explain the position with Railtrack before the route for the
cable was decided. I do not consider that Humphries owed a duty to
Mr Gray to ensure that FAFS carried out their work safely in this
respect when the work itself was unauthorised. The accident occurred
because FAFS decided to start the work when they should not have
started it. I do not consider that Humphries or Thistle owed Mr Gray
a duty to guard against possible consequences of that unanticipated
action on the part of FAFS.
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