Makepeace -v- Evans Brothers (Reading) (a firm)

One of the problems of advising on claims involving negligence is that so many of the authorities turn on their own facts. Whilst the general principles are well established, it is the application of those principles to the circumstances in question which is apt to cause difficulty.

This issue was highlighted in the recent case of Makepeace -v- Evans Brothers (Reading) (a firm) (23 May 200) in which the Court of Appeal was asked to consider whether Alfred McAlpine ("McAlpine") owed a duty of care to the employee of one of its sub-contractors, Evans Brothers.

By way of background, McAlpine was the Main Contractor responsible for a major residential development at Hampton Wick, on the River Thames. McAlpine had retained Evans Brothers, who were a firm of painters and decorators, and Mr Makepeace was one of their experienced operatives.

On 22 August 1990, Mr Makepeace was the victim of a serious accident. During the course of the day McAlpine's site agent had told Mr Makepeace and a colleague that he could borrow a tower scaffold to attend to some exterior paintwork. Mr Makepeace and his colleague borrowed the scaffolding and erected it themselves.

Tragically, the scaffolding toppled over during use, either because it had been erected without its stabilisers in place or because Mr Makepeace and his colleague had upset the balance of it. Whatever the precise cause of the accident, Mr Makepeace was thrown to the ground and sustained such serious head injuries that he has been permanently disabled.

Mr Makepeace sued both his own employers and McAlpine, alleging (against McAlpine) breach of the Occupiers Liability Act 1957 and negligence at common law.

At trial, Evans Brothers were found liable for damages in the sum of GBP 672,500, reduced by 25percent to take account of contributory negligence. The claim against McAlpine was dismissed on the basis that the Judge had concluded that, in the circumstances, McAlpine did not owe Mr Makepeace a duty of care.

Had Evans Brothers been able to meet the Judgement, the proceedings would no doubt have ended there. However, there appears to have been some doubt about their ability to do so, as a result of which Mr Makepeace appealed that part of the Judgment which concerned McAlpine's liability.

As the Court of Appeal pointed out, it has to be borne in mind that Mr Makepeace was an experienced operative. It was also apparent that he was familiar with the use of tower scaffolds, although he had not used one for some time. Whether this was known to McAlpine is unclear but their site agent did not ask whether he knew how to erect or use the system.

Counsel for Mr Makepeace argued that McAlpine knew or ought to have known that the equipment was potentially dangerous if those using it had not been properly trained. Accordingly he said that, on the ordinary "neighbour principle", McAlpine had a duty to make enquiries in this respect.

Whilst the Court of Appeal were unanimous in dismissing this argument, it is apparent that there were differences in opinion as to the correct approach to adopt when considering problems of this sort. On the one hand, Lord Justice Mantell was firm in his view that it would not be reasonable to impose on McAlpine a duty to advise in these circumstances. In support of that view he cited the Judgment in Ferguson -v- Welsh and Others (1987) 1 WLR 1555, which noted that:-

"Warnings have already been given from the House of Lords as to not extending the nursemaid's school of negligence."

Whilst he accepted that there may be occasions when an occupier will have a duty of care to the employees of a contractor it has retained, he therefore concluded that this was not one of those occasions.

Mr Justice Holman was less sure and stated, in his Judgment, that this was a borderline case. Whilst concluding that McAlpine did not owe a duty of care in the circumstances which had arisen, he emphasised that in reaching this conclusion it was necessary to consider:-

• the nature of the equipment in question and, in particular, whether it was common place or unusual; and
• the trade of the employee in question and, presumably, his site experience.

Mr Justice Holman concluded that the most significant finding of fact made by the trial Judge had been that the tower scaffold was an "ordinary piece of equipment of a kind frequently used on building sites by painters". On that basis he held that McAlpine did not owe Mr Makepeace a duty of care. Nevertheless, it is also clear that his Judgment leaves open the potential for advancing a claim in negligence where specialised and potentially dangerous equipment is loaned out without proper enquiries as to the user's competence to use it.

Key Points

• An occupier will not normally owe a duty of care to the employees of a contractor it has retained.
• The loan of ordinary equipment to experienced personnel will not usually give rise to a common law duty of care.
• The loan of specialised and dangerous equipment may not be viewed in the same way.

For further information on this topic, please contact Andrew Rawstron at [email protected] or on +44 (0)20 7367 3000.

This article first appeared in Construction News on Thursday 27th July 2000.