[2008] LTL 01.09.08

Claimant loses employer liability claim; Court finds that risk he had taken was obvious.

The Claimant, who was an apprentice carpenter and joiner, was sub-contracted with his brother to work on the Defendant’s building site. Whilst his brother was on holiday, it was agreed that another joiner would supervise him. After fixing timber strips to the roof rafters in one room, the Claimant was left alone to undertake the same task in another room. He pulled himself up into the rafters from a platform he had erected. After completing some work, he swung back down, hitting his head on a rafter. This caused him to lose his balance and fall, sustaining injury. The Claimant alleged that the Defendant had breached the Construction (Health, Safety and Welfare) Regulations 1996 reg. 5, the Work at Height Regulations 2005 reg. 4 & 6(5)(b), had negligently failed to take into account their risk assessments and safety policy, and had failed to warn the Claimant of the r isk of climbing into the rafters rather than using a ladder.

Held: It was not foreseeable that the Claimant would have to enter the roof space whilst undertaking the task. The roof space had not been a place of work for the Claimant; it had not been part of his job to climb into the roof space, but even if it had, a scaffold and ladders had been provided to allow him to access it safely. The risk that he had taken in climbing into the rafters was an obvious one, and there was no need to draw it to his attention. The accident had not been caused by the Defendant’s negligence.

Comment: Given various evidential difficulties faced by the Claimant it is perhaps surprising that the case was pursued to court. The fact that it was suggests an expectation that the court would be sympathetic to the Claimant's case. However, whilst the judge considered the claim carefully, he commented that "the risk which the Claimant took when deciding to climb into the rafters in the way that he did was one which must have been entirely obvious to him and did not need to be drawn to his attention, even by an employer, let alone by a company to whom he was an independent contractor."

This case follows on from the decision in the case of Mason v Satelcom Ltd and East Potential Ltd [2008], which was reported in our May edition, where the Court of Appeal overturned a first instance decision that an occupier should contribute one third to a claim where the Claimant used a ladder which was too short to gain access to a cabinet. In that case Lord Justice May stated "There is a risk that lawyers, including judges, being obsessed with the meaning of abstruse secondary legislation, may lose sight of the real world ... The proposition that East [the occupier] should also be partly responsible for the accident ... is in the real world close to being absurd."

These cases are illustrative of what appears to be a recent trend towards the application by courts of common sense, which will be welcome to defendants and insurers.