Moon v Garrett and others: [2006] EWCA Civ 1121

CA: Waller, Jacob LJJ and Sir Peter Gibson: 28 July 2006

The claimant, in the course of his employment as a delivery driver with the second defendants, was delivering heavy concrete blocks to the first defendant's property, where the first defendant, who was carrying out building works, had excavated a large pit, just over two metres deep, over which he was proposing to erect a garage. While the claimant was unloading the blocks near to one corner of the pit, the blocks began to fall off the lorry, causing him to lose his balance and roll into the pit, which was guarded only by netting attached to metal posts. The claimant suffered serious back injury and brought an action against the defendants under section 2 of the Occupiers' Liability Act 1957 and regulation 6 of the Construction (Health, Safety and Welfare) Regulations 1996. The judge found the first defendant liable under section 2(2) of the 1957 Act, but held that the 1996 Regulations did not apply to the claimant who was not "a person at work" within the meaning of regulation 3(1), which he interpreted as referring to construction workers, and he dismissed the claim against the second defendants and ordered the first defendant to pay their costs.

The first defendant appealed.

The Court of Appeal held:
(1) Where an occupier undertook to do himself work on his property involving a level of skill and knowledge such as would prompt an ordinary occupier to employ a professional person to do the work for him, a higher standard of care might be required of him under section 2(2) of the Occupiers' Liability Act 1957 to ensure that visitors were reasonably safe in using his premises than where minor DIY work was involved. While it might have been difficult to foresee the incident that ultimately led to the claimant being injured, the question was whether it was reasonably foreseeable that a man delivering blocks to the edge of a track, a few feet from the deep excavation, might slip and, in slipping, fall into the pit, and the judge was in the best position to make an assessment as to the reasonable care required of the first defendant in those circumstances.
(2) Where a successful defendant sought costs against an unsuccessful defendant, the court took into account whether the claimant had behaved reasonably in suing two defendants, whether one defendant had sought to blame another and whether the cases made against the two defendants were in the alternative, though the fact that claims were not truly alternative did not mean that the court did not have the power to order one defendant to pay the costs of another. Since the second defendants were a party who might have been found liable, and were a party on whom the first defendant had sought to place the blame, the judge was right to take the view that it was reasonable to join them and had not exercised his discretion on any wrong basis.
Per curiam. There is force in the submission that a person involved in any activity "arising out of or in connection with construction work" should be included within the definition of "a person at work" for the purposes of regulation 3(1) of the Construction (Health, Safety and Welfare) Regulations 1996. The fact that the first defendant ordered these blocks to be delivered by a third party and brought to the site to be unloaded in a particular place would seem to bring the delivery man within the definition of "a person at work" in relation to construction work.

The appeal was dismissed.

Appearances: Glyn Edwards (Davies and Partners, Bristol) for the first defendant; Selena Plowden (Lyons Davidson, Bristol) for the claimant; the defendant employers did not appear and were not represented.