Jennings v Forestry Commission: [2008] EWCA Civ 581

CA: May, Richards LJJ and Sir Paul Kennedy: 23 May 2008

The claimant contracted to erect a boundary fence for the defendant. The contract schedule specified that the fencing materials would be taken to the fence line by helicopter or all-terrain vehicle by National Trust staff. At the site, before he began work, the claimant discussed the job with the defendant's contract manager and said that he would use his own vehicle to take the materials to the lower part of the fence line. While the claimant and his assistant were engaged in the work, the vehicle, which had been adapted by the claimant and was unsuitable, slipped down a steep slope and rolled over, causing the claimant serious injuries. On his claim for damages for personal injury, the judge found that the factual reality of the relationship between the claimant and the defendant was one of employment; that the defendant was in breach of duty under regulation 4 of the Provision and Use of Work Equipment Regulations 1998 by allowing the claimant to use unsuitable work equipment; and that, in any event, the defendant was in breach of a duty of care arising from its assumption of responsibility for the delivery of the materials. The judge also assessed contributory negligence by the claimant at 35%.

The defendant appealed.

The Court of Appeal held:
(1) The claimant’s relationship with the defendant was that of an independent contractor, not an employee, since the factual reality was that he had control over the way the work was carried out, he decided whether and on what terms to employ an assistant and he provided all the materials except netting. The contract accorded with the view that the claimant was being retained as an independent contractor, imposing obligations on him to ensure that vehicles and equipment were in proper condition, that he and his employees complied with health and safety requirements and that third party liability insurance was in force. Accordingly, the judge had been wrong to find that there was an employment relationship and that the defendant, therefore, owed the duties of an employer towards the claimant in respect of the work.
(2) In the absence of an employment relationship, the application of regulation 4 of the Provision and Use of Work Equipment Regulations 1998 depended on whether the defendant had control of the claimant’s use of his vehicle for the purposes of regulation 3(3)(b)(ii) or (iii). While the ultimate question was one of factual control, on the evidence, the defendant had no contractual right to direct the claimant not to transport the fencing materials by means other than helicopter or all-terrain vehicle; and, irrespective of any contractual right of control, the defendant did not have control as a matter of fact, both parties acting on the understanding that it was for the claimant to decide how to do the work, including what use was to be made of the claimant’s vehicle. Accordingly, the defendant did not have control to any extent for the purposes of regulation 3(3)(b), and the requirements of the 1998 Regulations did not apply.

The appeal was allowed.

Appearances: Richard Davies QC and Fiona Ashworth (Eversheds LLP) for the defendant; Nicholas Braslavsky QC and Derek O’Sullivan (Rowlands LLP) for the claimant.