Martin Porter KC successful in important decision on Common Law Duty of Care

Posted: 25/01/2023

Judgment was handed down today in the case Lewin v Gray at the High Court in Sheffield. This is an important case on whether a breach of health and safety regulations gives rise to a cause of action for breach of a common law duty of care.

Mr Lewin was a general builder who had over many years undertaken building jobs at a farm occupied by Mr Gray. Neither party had been aware of the requirements of the Construction (Design and Management) Regulations 2015 that the Claimant builder prepare a Construction Phase Plan and the Defendant farmer ensure that such a plan had been drawn up before works commenced.

Tragically during the course of the works the builder fell through a fragile barn roof suffering a severe spinal cord injury rendering him paraplegic. He brought a claim against the farmer complaining that had the Defendant ensured that he had prepared a Construction Phase Plan that would have prompted him to put in safeguards against falling through the roof to the ground.

The claim failed. Although both parties were unquestionably in breach of the regulations this did not give rise to a cause of action applying s 47(2) of the Health & Safety at Work Act 1974 as amended by the Enterprise Act 2013 which said as much. The Claimant could not get around this by asserting that there was a common law duty of care to at least comply with the criminal law.

It was not fair, just or reasonable to impose a novel common law duty of care so as to override the express provisions of the 1974 Act. There was no common law duty to require a contractor to do something which he was only required to do by virtue of the Health & Safety Regulations.

Martin Porter KC instructed by Mark Bailey of DAC Beachcroft appeared for the successful Defendant.


Martin Porter KC

Call: 1986 Silk: 2006


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