Lynch v Ceva Logistics Ltd and Lynch (trading as SW Lynch Electrical Contractors) 25.02.11
The Claimant was a qualified electrician employed by his brother (Lynch). In September 2006, the Claimant visited Ceva Logistics Ltd’s warehouse to inspect the lights in the roof. He drove around the warehouse in a cherry picker. He parked the cherry picker at the end of a narrow aisle and carried out some work. He then needed to access an adjacent aisle. Instead of returning to his cherry picker and driving forward a few yards, which would have blocked the end of the aisle, he made his way on foot. Shortly after entering the aisle, he was struck by a reach truck driven by an employee of Ceva. At first instance Ceva was found 60% liable, Lynch 40% liable and the Claimant 25% contributorily negligent. Ceva appealed, arguing that its duty under Regulation 17 of the Workplace (Health, Safety and Welfare) Regulations 1992, which relates to the organisation of workplaces and traffic routes, applied only to its own employees.
The appeal failed. Lord Justice Jackson held that Regulation 4(2)(c) of the 1992 Regulations limited the responsibility of the workplace owner or occupier to matters in respect of which it is, or should be, able and competent to give instructions to visiting contractors and their employees. In the circumstances of this case, Ceva had the right and the ability to control the way the Claimant moved about the warehouse. It owed the Claimant both a statutory and a common law duty to ensure that there was proper separation of vehicles and pedestrians in the warehouse. It had breached this duty.
Occupiers of premises who engage the services of visiting contractors should be alert to the implications of this decision. The Court of Appeal has held that, where a workplace owner or occupier is able and competent to give instructions to visiting contractors and their employees, the occupier owes them a duty of care under the 1992 Regulations (effective from 1 January 1993).
This decision is of potentially wide application. Take for example a claim brought by a mesothelioma victim against his employer, where the employee had been deployed (after 1 January 1993) to work in a building which was occupied by a main contractor and where lagging works were being carried out. This decision confirms that the main contractor could not simply turn a blind eye to the harm that respirable dust generated by their lagging subcontractors might have on others working on the site.