Construction (Health, Safety & Welfare) Regs 1996

O’Gara -v- Paul John Construction (Leicester) Ltd, High Ct, 2/8/2005

It was held that the employer had been in breach of its statutory duty, under reg.5(2) of the Construction (Health, Safety and Welfare) Regulations 1996, in failing to make a site safe for dumper driving operations. The employer had left a substantial drop on either side of a ramp, which was sufficient to constitute a trap that could, and did in fact, overturn a dumper which was being driven properly by its employee. The court was satisfied that it would have been reasonably practicable to have made the site safe by filling in and levelling those areas or by fixing a timber baulk at the edge of the ramp.

Primary Liability - contribution of site owner

Hood -v- Mitie Property Services Ltd & Anr, High Ct, 1/7/2005


An experienced roofing contractor, which had held itself out to a site owner as able to do roofing repair work and to have a proper approach to safety, was liable to its workman for damages for personal injury when he fell through the fragile roof.

The defendant sought a contribution from the owner-occupier of the site but it was held he was not liable to contribute as he only had a common duty to take such care as was reasonable in the circumstances. Control of the site generally did not impose a further duty and the key question for the Construction Regulation 4(2) was control of how the work was done (McCook -v- Lobo (2002) EWCA Civ 1760 applied)

Further it would be wrong to convert the occupier’s duty to that of an employer where the work was not extra hazardous and where the roofer held itself out as a competent contractor who was experienced against the ordinary risks of the job (applying s 2(3) (b) and s2(4) (b) 1957 Occupiers’ Liability Act)

Highway tripping cases

There is a good article at the front of Personal injury Law Journal September 2005 outlining the relevant law for these cases.

The main point it makes is that the case of Galloway -v- Richmond PLC is being wrongly cited and applied by defendants  as authority for the false proposition that there can be policy considerations as to whether a dangerous but barely visible defect (usually a "trap” of well under an inch) can be considered dangerous for the purposes of section 41 of the Highways Act 1980.

He reminds everyone the test as to what is dangerous is a straight common law type application as to what can reasonably be foreseen to be a hazard to members of the public taking reasonable care of their own safety (i.e looking out for normal depressions etc) as set out clearly by the Court of Appeal in Mills -v- Barnsley Metropolitan BC PIQR P291 and applied in Brett -v- Lewisham LBC, 20/12/1999 and Winterhalder -v- Leeds BC, 18/7/2000.

The effect of this is that, where there is a hazard of less than an inch – e.g a stone that rocked 6-10 mm but appeared pristine, flat and new to the pedestrian (as recently laid by contractors) a claimant rightly succeeded even after appeal in Gilbert -v- Wiltshire CC (29/7/2005).

It is essential to note this sort of “trap” case can only succeed where no defence is made out under s 58 of a reasonable system of inspection and maintenance and that remains a good defence, (for example as in  Owen -v- City of Westminster (2004) EWHC 1557 QB ) but the only point in law at which policy considerations should and can apply.  Moreover a note of caution is made that a minor visible depression could be said to be expected by the reasonable pedestrian looking out .