The period during the pandemic has seen many people investing money into their homes, whether to add an extension to serve as a home office or to spruce up the garden. Similarly, small business owners experiencing an uptick in sales have chosen to upgrade or extend their place of business. They will often engage a small contractor or series of sub-contractors for this purpose. This poses a question: does the small business owner have a duty under the Occupiers Liability Act 1957 (the “OLA 1957”) to supervise the construction work to ensure it is being carried out safely?
In Moreira v Moran and others [2021] EWHC 1800 (QB), the court considered the above question. This article summarises the decision and what it means for small business owners.
Facts
The third defendant (“Prolakeballs”) is a company that retrieves grades and sells golf balls that find their way into water features at golf courses.
In March 2018, the third defendant (“Prolakeballs”) engaged the first defendant (“Mr Moran”) to construct an office on a mezzanine floor at its premises (the “Project”). The contract sum was £4,550.
The claimant (“Mr Moreira”) worked as a labourer for Mr Moran and the second defendant (“Mr Dunne”). Mr Moreira was working for Mr Moran and Mr Dunne at the Project.
On 3 April 2018, Mr Moreira was assisting Mr Moran and Mr Dunne to offload and stack chipboard onto the mezzanine floor, in readiness to construct the office. Prior to this, Mr Dunne and Mr Moreira had removed a guardrail which went around the edge of the mezzanine floor. During this task Mr Moreira was caught off balance and fell from the unguarded mezzanine floor. He suffered head injuries and brain damage.
Mr Moreira then brought claims i) against Mr Moran and Mr Dunne for negligence and ii) against Prolakeballs for breach of duty under the OLA 1957 and and negligence. The focus on this article is the claim against Prolakeballs.
Evidence of Mr McKernan
During trial, the court heard evidence from Alec McKernan, a director of Prolakeballs. In giving his evidence, Mr McKernan said that:
- He had never worked in the construction industry;
- He thought that Mr Moran was a competent joiner, as he came recommended and had shown him photographs of his previous work;
- He had assumed that Mr Moran had carried out a risk assessment for the Project, although he had not asked him for it;
- He did not check the construction work whilst it was ongoing;
- He accepted that he had a degree of control over where the contractors worked but not how, as that would amount to supervising. (However, we agreed that he had the ability to stop the work if he had considered it dangerous.); and
- He did not know that the guardrail had been removed until after the accident had occurred.
Decision in relation to Prolakeballs
Mr Moreira’s claim was that Prolakeballs had breached its duty under section 2(2) of the OLA 1957. Section 2(2) states that:
“The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.”
Section 2(4) of the OLA 1957 provides that an occupier (in this case, Prolakeballs) can discharge its duty under section 2(2) if it had reasonably entrusted the work to an independent contractor and had taken reasonable steps to satisfy itself that the contractor was competent.
The judge said that the OLA 1957 did apply to this case. However, Prolakeballs was not in breach of its duty under section 2(2) because:
- Mr McKernan had no knowledge of construction and was entitled to rely on Mr Moran and Mr Dunne’s expertise as builders;
- Mr McKernan did not know that the other parties were working unsafely;
- The act of removing the guardrail was carried out by Mr Dunne and Mr Moreira. Further Mr McKernan was not aware that this had happened until after the accident; and
- But for Mr Moran and Mr Dunne’s decision to work on the unguarded mezzanine floor, Mr Moreira would not have been injured.
The judge also held that Prolakeballs was not liable in tort. (Incidentally, Mr Moran and Mr Dunne were found to be liable for negligence.)
The judge commented that the position may be different where the defendant occupier is a “substantial enterprise with a full-time safety officer who performs a role supervising work being carried out on the premises by independent contractors.” However, Prolakeballs is a small company with two full-time employees and a handful of seasonal staff, none of whom had construction experience.
Commentary
The decision in Moreira v Moran will be welcomed by small business owners seeking to do work at their premises (and of course, their insurers). They are not required to supervise construction works where they engage independent contractors who appear reasonably competent.
However, the decision reinforces the need to select competent contractors to carry out building work. What is “reasonable” in this regard will depend on a number of factors, including the size of the client business and its knowledge of construction processes. It is clear that larger companies will be held to a higher standard.
The Construction (Design and Management) Regulations 2015 (the “CDM Regulations”) are also relevant here. Although the judge in this case said that a breach of the CDM Regulations does not form a basis of civil liability, he hinted that such a breach may provide an indication of liability. Clients under the CDM Regulations must consider their duties and act accordingly. If in doubt, those parties should seek professional advice.
