EH Humphries Ltd & Thistle Hotels plc v Fire Alarm Fabrications Ltd

Date: September 20, 2007

Expertise: Personal Injury

The Court of Appeal have today handed down Judgment in the above case in which an employer had sought contributions from a main contractor and occupier towards damages payable to the Claimant estate and family of their employee who died in a fatal accident at work.

The deceased, Mr Gray, had been working for FAFS on the installation of a fire alarm system at the Thistle Hotel adjoining Victoria Railway station.  From a window of the hotel he had accessed the roof of Railtrack’s adjoining premises in order to assist in the running of a cable in a cable tray secured to the exterior wall of the hotel.  This roof contained a skylight through which Mr Gray unfortunately fell to his death.

FAFS had been engaged by the main contractor, Humphries, on the nomination of the hotel occupier, Thistle.  There had been discussions prior to the accident between all these parties as to the appropriate routing of the cable but no decision had been taken as to the use of an external route until the morning of the accident when a decision had been made by FAFS without reference to Humphries or Thistle.  After these discussions and shortly before FAFS commenced work on the site they had, in accordance with a contractual obligation, supplied Humphries with method statements and risk assessments which contained no reference to outside working.

FAFS admitted liability to the Claimant but sought in Part 20 proceedings contributions from Humphries and Thistle towards their liability to the Claimant.  The principal basis upon which contribution was sought from Humphries was that there had not been adequate examination of FAFS’ method and risk assessments before permitting them to commence work.  As against Thistle the main argument was that they ought to have appraised FAFS of the fact that the adjoining roof was owned by Railtrack who operated a permit to work system.

Following the trial HHJ Marr-Johnson, sitting as a deputy High Court Judge, had accepted FAFS arguments and ordered Humphries and Thistle to contribute 30% and 20% respectively.  In fixing those proportions the Judge had expressly had regard to the size of FAFS.  He also rejected Humphries claim to be entitled to an indemnity from FAFS pursuant to an indemnity clause in respect of injury or losses caused by FAFS’ breach of the terms of the subcontract.

The Court of Appeal (May, Gage and Hallett LJJ) unanimously reversed the Judge’s decision and dismissed FAFS’ claims for contribution both against Humphries and Thistle.  They did so primarily because the Judge had made a finding of fact that was not open to him on the evidence, namely that the tri-partite meeting had left it up to FAFS to determine the route of the cable whereas the evidence went no further than to indicate that FAFS were to investigate possible routings and report back.  In those circumstances the stage had not been reached when either Humphries needed to call for or examine a risk assessment for outside working or Thistle needed to appraise FAFS of the ownership and permit to work arrangements relating to the adjoining roof.

However the decision is also of wider interest for the observations made by the Court on duties of care and the indemnity argument.  Although it was conventional and sometimes convenient to place both the person said to owe a duty and the person to whom it is said to be owed into categories such as occupier, main contractor and employee of subcontractor, this did not hold the key to whether a duty was owed.  Notwithstanding cases such as Ferguson v Welsh and Makepeace v Evans (which may be thought to rule out a duty save in special circumstances) the question of whether an independent contractor will owe a duty of care to employees of its subcontractor is one of mixed fact and law and ‘it is unnecessary and unhelpful’ to attempt to formulate any specific test for deciding when such a duty arises. The Court inclined to think that on different facts then Humphries may have owed a duty to scrutinise method statements (and certainly they gave short shrift to an argument that this type of duty to check is a creation of the CDM Regulations which give rise to no civil duty) but that the obligation on Thistle to disclose details of Railtrack’s permit to work system would not give rise to a duty to an employee of their subcontractor.

On Humphries’ claim to an indemnity (had there been any liability on them) the Court of Appeal agreed with the trial Judge that any such liability would have arisen as a consequence of Humphries’ breach of duty rather than of FAFS’ breach of contract so that the indemnity clause would not apply.

Martin Porter QC of 2 Temple Gardens instructed by Alastair Homan of Beachcroft LLP appeared for the successful appellant, Humphries.  Colin McCaul QC appeared for Thistle.  Derek Sweeting QC and Steven Ford appeared for FAFS.