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OUTER HOUSE, COURT OF SESSION
[2023] CSOH 49
PD199/21
OPINION OF LORD SANDISON
In the cause
VICTORIA ROSE AND OTHERS
Pursuers
against
WNL INVESTMENTS LIMITED
Defender
Pursuers: Milligan KC, Swanney; Thompsons
Defender: Shand KC; BTO Solicitors LLP
26 July 2023
Introduction
[1]
Andrew Rose died after falling through a fragile roof at premises owned by the
defender at Brechin on 9 June 2018, while carrying out maintenance works there. In this
action, brought under the procedure set out in Chapter 43 of the Rules of the Court of
Session, his widow Victoria, his children and other members of his family sue for damages
in respect of his death. They maintain that Mr Rose should be regarded in law as having
been employed by the defender to carry out the works in question. They claim that his
death was the result of fault and negligence at common law on the part of the defender, and
in particular that it failed to take reasonable care for his safety by not instituting, providing
2
and maintaining a safe system of work, a safe place of work, and safe working equipment.
They refer to certain provisions of the Construction (Design and Management)
Regulations 2015, and of the Work at Height Regulations 2005, as illustrative of the
standards to be expected of employers in fulfilment of their common law duties of care
towards their employees and, more generally, towards those working on their premises and
under their direction and control. The defender denies that Mr Rose was its employee,
maintaining that he was an independent contractor engaged by it. Amongst other things, it
maintains that it was not in breach of any duty of care owed to him, and criticises the
specification of the pursuers' claim to the contrary. The action came before the court for
debate of the defender's position that the pursuers' averments are irrelevant and lacking in
essential specification.
[2]
At the outset of the debate I allowed the pursuers' unopposed motion to amend their
pleadings so as to refer only to regulations 4(1) to 4(3) of the 2015 Regulations, and
regulations 4(1), 6(1), 6(3) to (5), and 9(1) to (2) of the 2005 Regulations, in substitution for a
rather longer list of regulations previously put forward. I also allowed the pursuers'
opposed motion to strike out an existing admission on their part that Mr Rose had been an
independent contractor, taking the view that such an amendment was necessary for the
purposes of identifying the real nature of the dispute between the parties and did not
prejudice the defender in the presentation of its arguments at debate.
Relevant statutory provisions and regulations
[3]
Section 47 of the Health and Safety at Work, etc Act 1974 (as amended by section 69
of the Enterprise and Regulatory Reform Act 2013) provides:
3
"47.-- Civil liability
...
(2) Breach of a duty imposed by a statutory instrument containing (whether alone or
with other provision) health and safety regulations shall not be actionable except to
the extent that regulations under this section so provide.
(2A) Breach of a duty imposed by an existing statutory provision shall not be
actionable except to the extent that regulations under this section so provide
(including by modifying any of the existing statutory provisions).
...
(4) Subsections ... (2) and (2A) above are without prejudice to any right of action
which exists apart from the provisions of this Act ...
(7) The power to make regulations under this section shall be exercisable by the
Secretary of State."
The Construction (Design and Management) Regulations 2015 (SI 2015/51) provide as
follows:
"4.-- Client duties in relation to managing projects
(1) A client must make suitable arrangements for managing a project, including the
allocation of sufficient time and other resources.
(2) Arrangements are suitable if they ensure that--
(a) the construction work can be carried out, so far as is reasonably
practicable, without risks to the health or safety of any person affected by the
project; and
(b) the facilities required by Schedule 2 are provided in respect of any person
carrying out construction work.
(3) A client must ensure that these arrangements are maintained and reviewed
throughout the project."
The Work at Height Regulations 2005 (SI 2005/735) provide as follows:
"4.-- Organisation and planning
(1) Every employer shall ensure that work at height is
(a) properly planned;
(b) appropriately supervised; and
(c) carried out in a manner which is so far as is reasonably practicable safe,
and that its planning includes the selection of work equipment in accordance
with regulation 7.
...
6.-- Avoidance of risks from work at height
(1) In identifying the measures required by this regulation, every employer shall
take account of a risk assessment under regulation 3 of the Management Regulations.
...
4
(3) Where work is carried out at height, every employer shall take suitable and
sufficient measures to prevent, so far as is reasonably practicable, any person falling
a distance liable to cause personal injury.
(4) The measures required by paragraph (3) shall include
(a) his ensuring that the work is carried out
(i) from an existing place of work; or
(ii) (in the case of obtaining access or egress) using an existing means,
which complies with Schedule 1, where it is reasonably practicable to
carry it out safely and under appropriate ergonomic conditions; and
(b) where it is not reasonably practicable for the work to be carried out in
accordance with sub-paragraph (a), his providing sufficient work equipment
for preventing, so far as is reasonably practicable, a fall occurring.
(5) Where the measures taken under paragraph (4) do not eliminate the risk of a fall
occurring, every employer shall
(a) so far as is reasonably practicable, provide sufficient work equipment to
minimise
(i) the distance and consequences; or
(ii) where it is not reasonably practicable to minimise the distance, the
consequences,
of a fall; and
(b) without prejudice to the generality of paragraph (3), provide such
additional training and instruction or take other additional suitable and
sufficient measures to prevent, so far as is reasonably practicable, any person
falling a distance liable to cause personal injury.
...
9.-- Fragile surfaces
(1) Every employer shall ensure that no person at work passes across or near, or
works on, from or near, a fragile surface where it is reasonably practicable to carry
out work safely and under appropriate ergonomic conditions without his doing so.
(2) Where it is not reasonably practicable to carry out work safely and under
appropriate ergonomic conditions without passing across or near, or working on,
from or near, a fragile surface, every employer shall
(a) ensure, so far as is reasonably practicable, that suitable and sufficient
platforms, coverings, guard rails or similar means of support or protection
are provided and used so that any foreseeable loading is supported by such
supports or borne by such protection;
(b) where a risk of a person at work falling remains despite the measures
taken under the preceding provisions of this regulation, take suitable and
sufficient measures to minimise the distances and consequences of his fall."
5
Defender's submissions
[4]
On behalf of the defender, senior counsel sought dismissal of the action. The
pursuers' case was irrelevant, in that it did not disclose circumstances apt to create a duty of
care on the part of the defender to protect Mr Rose from his own actions, and in that there
were no averments that it was reasonably foreseeable that failure on the part of the defender
to take whatever steps it was now said it ought to have taken would have resulted in
Mr Rose working on the roof in the manner in which he did. Further, the pursuers' case was
lacking in essential specification, in that no adequate description had been given of the
measures which it was said the defender ought to have taken in discharge of such duties as
it had towards Mr Rose, and also because the pursuers' reliance on the content of
regulations which did not give rise to civil liability failed to specify how and why that
content informed the nature of any duties owed towards Mr Rose by the defender.
[5]
The pursuers' pleadings clearly disclosed that Mr Rose was acting as an independent
contractor rather than as an employee at the time of the accident. The salient admitted facts
of the case included that he had been engaged by the defender to clean and paint the roofs
and walls of sheds and other buildings at the defender's various premises throughout
Scotland. He was an experienced self-employed contractor with his own employees. He
brought his own equipment to the defender's premises. The defender was not a builder or
building maintenance contractor. It was accepted by the pursuers that Mr Rose had not
been using any fall protection measures, despite knowing that he was working on a fragile
roof. In 2017, during an earlier engagement of Mr Rose, the defender had reviewed his risk
assessments and method statements and had required their revision in order to make
reference to additional safety precautions in the form of personal fall protection measures
such as the use of lanyards and safety harnesses, to which Mr Rose had agreed. Thereafter
6
the defender had identified that one of his employees was operating without a harness or
crawler boards when working at height and had taken steps to reinforce to Mr Rose and his
employee that the relevant safety precautions required to be followed. That was the
essential factual background against which the pursuers brought a case against the defender
based on alleged common law negligence.
[6]
The case law relied upon by the pursuers did not support the suggestion that
Mr Rose might be found, after proof, to have been an employee of the defender. Lee Ting
Sang v Chung Chi-Keung [1990] 2 AC 374 was concerned with the construction of a
Hong Kong statutory provision which turned on whether the claimant was employed under
a contract of service. The pursuers did not offer to prove facts such as those which were
held in Lee Ting Sang as indicating that the claimant was employed under a contract of
service as opposed to under a contract for services. Pimlico Plumbers Ltd v Smith
with the specific issue of whether the individual in question was a "worker" within the
meaning of section 230(3) of the Employment Rights Act 1996, a question which turned on
matters of no relevance to the present case.
[7]
Although it might be the case that the distinction between an employee and an
independent contractor could be a fact-sensitive decision, in the present case the pursuers'
claim that Mr Rose was an employee and was owed a duty of care as such by the defender
was bound to fail as a matter of law on the basis of the material they averred. In such a case
the court's duty was to dismiss the action: Mitchell v Glasgow City Council [2009] UKHL 11,
2009 SC (HL) 21, per Lord Hope at [11] - [12]. That was the case even under Chapter 43
procedure.
7
[8]
Further, the pursuers had not averred facts relevant to instruct a case that a common
law duty of care was owed by the defender to an independent contractor such as Mr Rose.
Duties owed by an employer to his employee had traditionally not extended to independent
contractors. It had been recognised that, at least in general terms, an independent contractor
was responsible for his own safety, and those engaging his services would owe him no duty
of care, nor have any responsibility at common law for his safety at work. Support for that
proposition could be found in Munkman on Employers Liability (17th edition) at 4.78, in Jones v
Minton Construction Ltd [1973] 15 KIR 309 at 315, Ferguson v Welsh [1987] 1 WLR 1553 per
Lord Goff of Chieveley at page 1564 A-D, and in Lane v The Shire Roofing Company (Oxford)
upon by the pursuers, namely Makepeace v Evans Brothers (Reading) [2001] ICR 241, Gray v
present circumstances a common law duty of care was owed to an independent contractor.
In Gray, the court had held at [17] that a building owner was only obliged to exercise
oversight on the activities of an apparently competent contractor where the building owner
had some special knowledge, or in other special circumstances. In Chadwick the
circumstances were also wholly different. The claimant was not an independent contractor;
his direct employer and those who had engaged it were found liable for failing to carry out a
safety inspection which would have revealed the danger which eventuated. Lynch v Ceva
was a case concerning a failure to coordinate activities of various workers, and its rationale
for imposing a duty in such circumstances had no application to the facts of the current case.
The pursuers' case amounted to an assertion that the defender ought to have protected
8
Mr Rose, as an independent contractor, from his own folly. No such duty existed: Mitchell,
per Lord Hope at [15] and [16].
[9]
In relation to the argument that the defender had assumed a responsibility to
Mr Rose, the concept of assumption of responsibility as a mode of imposing a duty of care
had its origins in cases concerned with economic loss arising out of the performance of
professional services, and required not only a positive assumption of responsibility by the
defender, but also reliance by the injured party on that. Reference was made to Michael v
pursuers' pleadings were inept to instruct a case based on the notion of assumption of
responsibility as the source of a duty of care towards Mr Rose. At the very least, the
necessary element of reliance was absent, whether expressly or implicitly, from their
pleadings.
[10]
The fact that the pursuers offered to prove that the defender retained control over the
work being undertaken by Mr Rose, to the extent that it was able to monitor, supervise,
insist upon, and implement measures to prevent him from falling from height, or to
minimise the distance and consequences of any such fall, did not assist their case. That the
defender had the ability to do these things did not without more entail the existence of a
duty of care to Mr Rose. There would require to be some element of actual control over
Mr Rose or his work before liability could arise: Munkman at paragraph 4.80; Morris v
Breaveglen Ltd (t/a Anzac Construction Co) [1997] 5 WLUK 146 ; Nelhams v Sandells
Maintenance Ltd and Gillespie (UK) Ltd [1996] PIQR P52; and Kmiecic v Isaacs
[11]
The pursuers further did not offer to prove that it was reasonably foreseeable to the
defender that if it did not fulfil whatever duty was supposed to be incumbent upon it,
9
Mr Rose would work directly on the roof without using any protection to prevent him
falling through. An analogy was drawn with Robb v Dundee District Council 1980 SLT
(Notes) 91.
[12]
The pursuers had no averments to instruct a case that had whatever alleged duty or
duties on the defender been complied with, the accident to Mr Rose would not have
to [69], [80] and [99] - [100].
[13]
Section 47 of the Health and Safety at Work, etc Act 1974, as amended by section 69
of Enterprise and Regulatory Reform Act 2013, made it clear that, as a general rule, a
pursuer could not simply rely upon a breach of a statutory duty expressed in a health and
safety regulation to found a civil action, but would require to establish negligence on the
part of the defender: see, for example, section 13-72 of the 15th edition of Charlesworth &
Percy on Negligence. The pursuers' case in effect sought to treat the various regulations listed
in their pleadings as informing the nature of a common law duty of care owed to Mr Ross
without any proper basis for so doing. Not every failure to comply with the regulations
at [85]. It had long been recognised that there was no necessary correspondence between
statutory health and safety requirements and the common law duty of care which would
apply to the relevant situation. That could be seen, by way of example, in Edwards v National
pursuers had averred nothing to instruct the conclusion that any particular obligation or
obligations from amongst the several contained within the regulations listed by them was an
obligation which, applying common law principles of negligence, was owed to persons such
as Mr Rose. The action was fundamentally irrelevant and should be dismissed. The
10
acceptance by the court in Gilchrist v Asda Stores Ltd [2015] CSOH 77, 2015 Rep LR 95 that
regulations of the kind in issue might be relevant to the existence of a common law duty had
been decided without any adequate argument.
[14]
Further, even if the regulations retained some relevance, at least in principle, there
was no explanation as to how the statutory duties they imposed (involving, as they did,
duties to "ensure" certain things were achieved, or to achieve certain results, either
absolutely or "so far as reasonably practicable") were to be transformed into benchmarks
informing the standard of care owed by the defender at common law, which simply
involved taking reasonable care for the interests of others in an infinite variety of
circumstances. These difficulties had been noted in Goldscheider v Royal Opera House Covent
[2019] PIQR P15 at [36] and in Goodwillie v B&Q 2021 Rep LR 22 at [141] - [142]. Further by
way of example on the same theme, regulation 4 of the Construction (Design and
Management) Regulations 2015, which was referenced by the pursuers, plainly applied only
to independent contractor situations, but the pursuers were, at least apparently, seeking to
apply it to a case where they claimed, at least as their principal case, that Mr Rose was an
employee. The pursuers in effect proceeded as if section 69 of the 2013 Act had not been
passed. Statutory provisions which Parliament had decided should not give rise to civil
liability were being treated as if they continued to do so.
[15]
In these circumstances, the defender did not have fair notice of the case it had to
meet. No specification had been provided by the pursuers of the way in which each of the
provisions in the regulations relied on by them supplied a measure of the duty of care owed
at common law, how any provision was said to have been breached, or how the death of
Mr Rose would have been avoided but for the alleged breach. A defender was entitled to be
11
put in a position to be able to ascertain without undue difficulty the nature of the case
against it Clifton v Hays plc OH 7th January 2004 (unreported) at [11]; Dow at [91], [139]
and [180].
Pursuers' submissions
[16]
On behalf of the pursuers, senior counsel submitted that the case should be remitted
for proof. The pursuers' claim was primarily based on the premise that Mr Rose was acting
as an employee rather than an independent contractor at the time of his accident. That was a
mixed question of fact and law which could only be resolved once all of the evidence was
heard. Moreover, there was no longer a brightline distinction on the one hand between
employees working in terms of a conventional employment relationship, and on the other
independent contractors working under different arrangements, at least for the purposes of
determining the incidence and nature of a duty of care; rather, each case needed to be
located on a spectrum having regard to its particular facts and circumstances. Even if
Mr Rose was not an employee strictly so called, nor a de facto or quasi-employee at the
relevant time, it was contended that the defender still owed him a duty of care at common
law, essentially on the basis of its control of the site. Again, that was a mixed question of
fact and law that could only be resolved after proof.
[17]
How the parties to a particular relationship involving the performance of services
chose to characterise it was not definitive. In Pimlico Plumbers and Uber BV, workers were
held not to be independent contractors, despite being explicitly designed as such in the
respective contracts. The question of how to distinguish between a contract of service and a
contract for services had long troubled the courts and could not be determined on the basis
of the pleadings alone. As a matter of law, no clear test had been formulated - Lee Ting Sang
12
per Lord Griffiths at 382 C - D. A number of different tests had been formulated over the
years, initially largely based on the degree of control exercised by the person claimed to
have been the employer, but more recently emphasising the degree of subordination of the
putative employee or independent contractor. In either event, the question was highly
fact-sensitive. Of the many cases that had been decided on this issue, none had been
determined without inquiry into the facts. In Lee Ting Sang the Privy Council had approved
the formulation by Cooke J in Market Investigations Ltd v Minister of Social Security
[1969] 2 Q.B. 173, 184 - 185, that the fundamental test to be applied was whether the person who
had engaged to perform the services was performing them as a person in business on his
own account. Cooke J had acknowledged that no exhaustive list had been or perhaps could
be compiled of the considerations which were relevant in determining that question, and
that no strict rules could be laid down as to the relative weight which various considerations
should carry in particular cases. It had further been observed that control was likely to be an
important feature, and other factors might be whether the person performing the services
provided his own equipment, whether he hired his own helpers, what degree of financial
risk he took, what degree of responsibility for investment and management he had, and
whether and how far he had an opportunity of profiting from sound management in the
performance of his task. In Lane, the Court of Appeal, under reference to Ready Mixed
Concrete (South East) Ltd v Minister of Pensions and National Insurance [1968] 2 QB 497; Market
Investigations; and Ferguson v John Dawson & Partners (Contractors) Ltd [1976] 1 WLR 1213,
had observed that there were many factors to be taken into account in answering the
question in the particular context of who was responsible for the overall safety of the people
doing the work in question, and that all would depend on the facts of each individual case.
The court had acknowledged that the element of control (ie who determines what is to be
13
done, when and how) would be important, as would be who provided the personnel and
the material, plant and machinery and tools used. The question might also have to be
answered according to economic reality, asking where the financial risk lay and whether
there were opportunities to profit from sound management and efficient performance.
[18]
Even if Mr Rose was not an employee of the defender, he might still be owed duties
analogous to those owed by an employer to an employee. In Makepeace, the Court of Appeal
accepted the possibility of common law duties being incumbent on the part of the controller
of premises towards persons coming onto a site who were not its employees. In Gray, a
similar point was made, and it was noted that it was not helpful to compare the facts of one
particular case with another. Chadwick was to like effect.
[19]
These cases might be analysed as having been based on an assumption of
responsibility by a defender towards a pursuer: Munkman at paragraph 4.78 and Lynch, per
Jackson LJ at [52]. That might simply be a different way of expressing the point that the
borderline between an employee and an independent contractor was seldom clear cut,
particularly in the modern workplace, and viewing matters through the prism of
assumption of responsibility did not necessarily result in the importation of every aspect of
that concept as it operated in the field of delicts causing economic loss. Whether one framed
the question in terms of employment status or assumption of responsibility, it was clear that
each case would be highly fact-sensitive and could not be determined without inquiry into
the individual circumstances of each particular case. The pursuers had substantial
averments pointing to a significant degree of control by the defender and the subservience
or subordination of the deceased, which merited enquiry.
[20]
The pursuers' claims were based on breach of duty at common law. The content of
the health and safety regulations relied on, even if those regulations did not themselves
14
impose civil liability following implementation of the Enterprise and Regulatory Reform
Act 2013, could still be helpful in informing and defining the scope of common law duties.
The only claim which Chapter 43 procedure required to be advanced in those circumstances
was that loss had been caused by the fault and negligence of the defender at common law.
As a general rule of pleading, matters of law should not be pled, although historically, there
had been an exception for statutory duties in personal injury claims. In the present case the
pursuers averred clearly that the regulations they cited no longer imposed direct civil
liability, in consequence of section 69 of the 2013 Act, but claimed that they remained
relevant as evidence of the standards to be expected of employers in fulfilment of their
common law duties. That proposition had been accepted in Gilchrist, in Chadwick at
paras [90] and [92], and in Cockerill at [18]. Fair notice of the pursuers' case had been given,
and the questions of whether the defenders owed Mr Rose any duty of care, and if so, what
the precise content of such a duty might be, should be reserved and determined after proof.
At the very least, it could not be said that the regulations were necessarily irrelevant to the
existence and content of a common law duty of care at this stage of proceedings.
Decision
Employee or independent contractor?
[21]
In Lee Ting Sang, Lord Griffiths, speaking for the Judicial Committee of the Privy
Council, observed at 382 - 384 that distinguishing between an employee and an independent
contractor was "a most elusive question", that in most cases it would be a mixed question of
fact and law, and that "despite a plethora of authorities the courts have not been able to
devise a single test that will conclusively point to the distinction in all cases." The
15
Committee approved the observations made by Cooke J in Market Investigations at 184 - 185,
that:
"No exhaustive list has been compiled and perhaps no exhaustive list can be
compiled of the considerations which are relevant in determining that question, nor
can strict rules be laid down as to the relative weight which the various
considerations should carry in particular cases. The most that can be said is that
control will no doubt always have to be considered, although it can no longer be
regarded as the sole determining factor; and that factors which may be of importance
are such matters as whether the man performing the services provides his own
equipment, whether he hires his own helpers, what degree of financial risk he takes,
what degree of responsibility for investment and management he has, and whether
and how far he has an opportunity of profiting from sound management in the
performance of his task."
[22]
Similar observations were made in Lane per Henry LJ at P421 - P422, and in Chadwick
at [49] - [51]. It is of course true, in the context of Scottish litigation at least, that a pursuer's
pleadings, taken pro veritate, must at least be capable after proof of furnishing the essential
conclusions of fact and law argued for by the pursuer before enquiry will be permitted.
[23]
In the present case, many of the admitted features of Mr Rose's engagement are, to
put it mildly, not inherently supportive of the suggestion that he should properly be
regarded as having been the defender's employee for the purposes of this action. It does not
appear to be in dispute that he was, at least generally, a self-employed contractor, engaged
his own employees, and brought his own equipment to the defender's premises. However,
on what has traditionally been regarded as a key issue, namely that of control, the pursuers
do aver that:
"At all times whilst engaged by the defender, the defender retained control over the
work being undertaken by the deceased, to the extent that they were able to monitor,
supervise, insist upon and implement measures to prevent the deceased and his
employees from falling from height and/or to minimise the distance and
consequences of any such fall."
Those averments are supported by others concerning the actual intervention of the defender,
both at planning and implementation stages, in relation to Mr Rose's earlier engagement by
16
it at another of its sites in 2017. Whether that, either in isolation or in combination with
whatever other matters of detail may emerge at proof in relation to the other relevant factors
set out in the pleadings, will or will not result in a conclusion that Mr Rose falls for the
purposes of this litigation to be regarded as having been an employee of the defender in
connection with the work that led to his death, is not a question that can be answered in the
abstract at this stage of proceedings, standing the authorities already noted. Put shortly and
in familiar terms, it cannot be said at this stage that the pursuers are bound to fail on this
issue. It follows that their pleadings on the matter cannot be regarded as irrelevant and that
proof cannot be refused to them on that account.
Potential duties owed to independent contractors
[24]
Moreover, even if ultimately the conclusion reached at proof is that Mr Rose was an
independent contractor rather than an employee, it is no longer as clear as once it may have
been that in such circumstances the defender would owe him no duty of care, although that
in effect remains the default conclusion (see Lane, per Henry LJ at P421, Ferguson v Welsh
at 1564 and Gray at [36]). Munkman at 4.78 notes that:
"under the general law of negligence, duties perhaps similar to those owed to
employees have in certain circumstances been found to be owed by an undertaking
to persons not in its employment. The cases have often been viewed as exceptions.
Yet they increasingly illustrate the readiness of the law to award damages where one
person has assumed a responsibility for another whether through contract or
through the factual nature of their relationship ... But much uncertainty remains."
[25]
One set of circumstances identified in Munkman as apt to infer the existence of a duty
of care towards persons other than employees is where a worker is subject to the control of
someone who is not their employer. It is suggested at 4.89 that the nature of such a duty will
vary with the circumstances, and may include failures in organisation and in the adoption of
17
a safe overall system of work. These observations find some support in Lynch, where
Jackson LJ noted generally at [52] that:
"Every employer owes a duty of care to its own employees to provide a safe system
of work. The employer also owes a more limited duty of care to the employees of
other organisations who operate in the workplace which that employer controls."
In Makepeace, Mantell LJ at [9] similarly contemplated the possibility of:
"occasions when the main contractor or occupier will owe a duty of care to the
employees of others who come upon the premises distinct from the duty which
exists in relation to the state of the premises themselves"
and noted that the occasions on which such a duty of care had to date been recognised could
not be regarded as representing the only occasions on which it might in future be
recognised. In Gray, Gage LJ at [34] and [36] was to like effect, adding that it was
"unnecessary and unhelpful to attempt to formulate any specific test for deciding when such
a duty arises". With the law in that state, while it is true that none of the cases so far
decided in favour of the existence of a duty of care was concerned with a factual situation
exactly on point with the present, that cannot mean - particularly given the pursuers'
averments in relation to the degree of control at least capable of being exerted by the
defender over Mr Rose's work - that the pursuers would be bound to fail in establishing the
existence of a duty of care in the present case even if it were to be concluded that he was an
independent contractor to the defender rather than an employee. Again, the matter must
proceed to probation.
Relevance of Health and Safety Regulations
[26]
In relation to the relevance of the pursuers' averments concerning the Construction
(Design and Management) Regulations 2015 and the Work at Height Regulations 2005, the
18
general effect of section 69 of the Enterprise and Regulatory Reform Act 2013 on this area of
law is not in doubt. As it was put by Collins Rice J (as she now is) in Cockerill at [18]:
"... by enacting s.69, Parliament evidently intended to make a perceptible change in
the legal relationship between employers and employees in this respect. It removed
direct actionability by claimants from the enforcement mechanisms to which
employers are subject in carrying out those statutory duties. What I have referred to
as this `rebalancing' intended by s.69 was evidently directed to ensuring that any
breach of those duties would be actionable by claimants if, but only if, it also
amounted to a breach of a duty of care owed to a particular claimant in any given
circumstances; or in other words, if the breach was itself negligent. It is no longer
enough to demonstrate a breach of the regulations. Not all breaches of the statutory
regime will be negligent."
The judge further recorded at [17] that it was not disputed that:
"in considering the nature of the modern common law employers' duty it is still
permissible to have regard to the statutory duties, to understand in more detail what
steps reasonable and conscientious employers can be expected to take to provide a
reasonably safe workplace and system of work".
[27]
Court of Appeal noted at [24] that the Management of Health and Safety at Work
Regulations 1999 had been relied upon:
"as evidence of the standards of care applicable to a reasonable, prudent and
competent [duty holder]. This was because the incident post-dated the entry into
force of section 69 of the Enterprise and Regulatory Reform Act 2013".
[28]
Cockerill was referred to with approbation in Carr v Brands Transport Ltd
agreement in that case that health and safety regulations remained relevant in defining the
scope of the common law duty of care and indicating what steps a reasonable and
conscientious employer could have been expected to take in circumstances covered by them.
[29]
In Chadwick, Simon Tinkler, sitting as a deputy High Court judge, set out the
background to the issue along the lines already canvassed, adding at [92] that:
19
"In this case there was general comment about health and safety regulations but I
was not taken in submissions to any specific HSE regulations which set out more
detailed health and safety duties. It seems to me that in general the scope of the duty
at common law, and whether a person has complied with that duty, are likely still to
be informed by HSE law and regulations as they may, for example, give insight into
what measures, or omissions, are reasonable, but in the present case I did not
[require] to consider this further."
[30]
Other cases in the English courts have taken a similar approach. Turning to the
principal Scottish cases on the point, the Cockerill analysis was adopted by Sheriff R.B. Weir
QC (as he then was) in Birch v George McPhie & Son Ltd 2020 SLT (Sh Ct) 93 at [22]. In
Gilchrist the Lord Ordinary at [15] simply accepted the argument for the pursuer, "no
contrary submission being made". The pursuer's argument appears to have been that:
"employers remain under a statutory duty to comply with health and safety regulations, as
the duties set out in statutory instruments made prior to the 2013 Act inform and may define
the scope of duties at common law", that "an employer who breached a regulation and was
thereby committing an offence could hardly argue that he was acting reasonably", and that
"the existence of a regulation demonstrates that harm is foreseeable". Essentially the same
arguments were made, and again accepted without any contrary view having been argued,
by Sheriff Reith QC in Dehenes v T Bourne and Son 2019 SLT (Sh Ct) 219 at [10] and [24].
[31]
In Goodwillie, a case in which the pursuer sought to establish that "the applicable
common law standard of care [was] wholly derived from certain statutory
regulations" [131], Sheriff McGowan at [137] to [139] referred again to the argument that, if
it was a criminal offence to fail to comply with a statutory duty created by a health and
safety regulation, it would be difficult to see how the employer could argue that it was
reasonable to breach the duty, and noted observations in Kennedy v Cordia (Services)
assessment could arise either in terms of regulations or at common law, which was said to
20
be consistent with the existence of a statutory duty being regarded as potentially illustrative
of the state of knowledge of a reasonable employer in relation to particular risks. The Sheriff
went on to say the following:
"[141] Therefore, I accept, as a matter of general principle, that the regulations relied
on by the pursuer in this case are relevant to an assessment of the specific obligations
(i.e. steps to be taken) which may be incumbent upon an employer in discharging its
general duty to exercise reasonable care towards its employees. But the precise
impact of that in any given case will depend on (a) the factual circumstances
prevailing and (b) the precise way in which the statutory duty relied upon is
formulated and/or has been interpreted.
[142] I suggest that it may work in the following way. If a duty identified in a
regulation can reasonably be said to fall within the duty of reasonable care
incumbent on an employer (i.e. in the same way as certain elements have been held
at common law to form part of that general duty, (e.g. to provide and maintain
proper machinery ...), then it should be treated as creating such a duty. Moreover,
where a regulation provides specific, concrete steps to be taken in the fulfilment
thereof, they may also form part of the duty to take reasonable care. However,
where the element which is subsumed into the common law duty of care in that way
has as its source a regulation which otherwise creates an absolute or strict standard
of care, the new element must be moderated to the standard of reasonable care."
[32]
In McDonald v Indigo Sun Retail Ltd 2021 SCLR 269, Sheriff Mundy observed at [57]
that:
"while breaches of health and safety regulations are no longer actionable in their
own right such regulations remain a source of statutory duties with which an
employer must comply and they remain relevant as evidence of standards expected
of employers in civil cases ..."
[33]
Finally, in the course of the passage of the Enterprise and Regulatory Reform Bill
through Parliament, and as alluded to inspecifically in Galbraith, the responsible Minister
(Viscount Younger of Leckie) stated in Grand Committee on 14 January 2013 that:
"The noble Baroness, Lady Turner of Camden, brought up the concern that the law
would go backwards, which I think was her expression, and the employer would
hold all the cards. I would like to assure her and all noble Lords that the provision
will affect only a small number of duties that are unqualified. In any claim for
negligence, the existing regulatory requirements on employers will remain relevant,
as the courts will look to the statutory duties, approved codes of practice and
established guidance to inform them about what risks a reasonable employer should
be aware of and the steps they would be expected to take to manage those risks.
21
I stress again that this change will only assist responsible employers who have done
what is required of them and can demonstrate this."
At a subsequent stage of proceedings, the Minister on 6 March 2013 further stated the
following:
"However, unlike in the days before the Health and Safety at Work etc. Act, there is
now a codified framework for health and safety at work and a great deal of evidence
and guidance in the public domain about hazards in the workplace. Employers are
expected to take account of this in carrying out their risk assessments, and this body
of information will form an important part of the evidence in this aspect of a claim.
This means that injured employees are in a very different and much better position
to obtain information about their employer's actions than they were when the right
to sue for breach of statutory duty was first established in the 19th century. I hope
that this answers the question raised by my noble friend Lord Phillips in this
respect."
[34]
Neither ministerial statement qualifies as a guide to the proper construction of
section 69 of the 2013 Act in terms of the rule in Pepper v Hart [1993] AC 593, since they do
not assist in the resolution of any ambiguity in the provision. There is no such ambiguity.
Rather, they are simply expressions of opinion as to what material courts would be likely in
future to have regard to in determining the incidence and nature of a common law duty of
care.
[35]
In virtually all of the decided cases in which the question of the continuing role of
health and safety regulations in informing the nature of common law duties of care has been
raised, there has been consensus between the parties to the litigation as to how the question
should be answered. That seems to have resulted in something of a lack of searching
judicial analysis of precisely why, and thus how, the content of any regulations which might
previously have engaged with the situation under consideration continues to have a role in
assisting the court to determine the incidence and nature of a common law duty of care in
that situation. In consequence, certain of the Scottish cases, most notably Goodwillie, appear
to have departed from the course which the law requires.
22
[36]
The starting point for an analysis of these matters must be the indubitable fact that
section 69 of the 2013 Act was intended "to make a perceptible change in the legal
relationship between employer and employees", as it was put in Cockerill at [18]. It is the
duty of the courts to give effect to that change, rather than to undermine it or to arrive at
conclusions by routes which in practical terms ignore it. It is not correct as a matter of law to
suggest that any health and safety regulation falling within the scope of the general rule in
section 69 may, directly or indirectly, be the source or origin of a common law duty of care,
whether with or without adaptation of some sort. Regulations are not generally
promulgated in an attempt to restate the common law. In situations where they may have
been intended to restate or clarify the common law, they may not have succeeded in doing
so. Recognition of the existence and content of common law duties of care remains, as
always, the sole prerogative of the judiciary.
[37]
The fact that an employer or other duty holder remains under a statutory duty in
certain situations to do particular things or achieve a specific result is not in itself relevant to
inform the existence of any common law duty in those situations. That there may be
criminal liability for breach of a health and safety regulation in no way involves or infers a
conclusion that a common law duty of care exists in the situation at hand, or what the
content of any duty which may exist might be. That is most obvious in cases where such
regulations create strict liability, but the principle is not restricted to such cases. Criminal
liability for breach of health and safety regulations and common law duties of care operate
on entirely different legal planes; any other approach impermissibly undermines section 69.
[38]
None of that is to say that health and safety regulations have no potential relevance
in assisting the court to come to its own conclusions about the incidence and nature of a
common law duty of care. However, that potential relevance is limited in scope. The
23
existence and content of such regulations may inform the court about what risks have been
generally recognised as inherent in a particular situation or activity and what steps have
been similarly recognised as apt to mitigate or eliminate those risks. Reference to health and
safety regulations is properly aimed at providing a factual basis, or factual support, for those
kinds of proposition, rather than at claiming any residual legal effect said to inhere in the
regulation for the purposes of informing common law duties of care, for no such effect
exists. There is no greater role for the content of health and safety regulations or guidance in
the determination of common law duties than that.
[39]
In most cases, the utility of reference to such regulations and guidance will be
extremely limited, because the regulation or guidance will at best simply confirm
conclusions that are amply capable of being arrived at by the court without such reference.
There may be circumstances, however, in particular in cases involving rather specialised
areas of activity, where they are capable of making a greater contribution to the conclusions
which require to be drawn as to the demands of the common law.
[40]
In the present case, reference to the regulations set out above is said in the pursuers'
pleadings to be:
"relevant as evidence of the standards to be expected of employers in fulfilment of
their common law duties. The regulations provide an established benchmark
informing the standard of care owed by the defender to those working in their
premises, and under their direction and control, such as the deceased, in the exercise
of their incumbent common law duties of reasonable care."
So long as those claims are seen as propositions of fact rather than law, they are
unobjectionable in light of the preceding analysis of the law. Whether they will in fact be
made out as valid propositions of fact, and if so whether they will add anything to the
process to be gone through by the judge considering what the common law requires in the
24
precise situation which proof reveals to have pertained, remains to be seen. There is,
however, no proper ground upon which they may be refused probation at this stage.
Further issues concerning the existence and nature of a duty of care
[41]
Turning to the more minor points relied upon by the defender in relation to its
irrelevancy and lack of specification claims, issues of what was or was not reasonably
foreseeable in all of the circumstances are also best dealt with after proof, when the detail of
those circumstances has been ascertained. It is plainly implicit in the pursuers' case that
they maintain that it was reasonably foreseeable that the failures on the part of the defender
of which they complain might result in Mr Rose adopting a course of action that could cause
him serious harm. There is no merit, certainly in Chapter 43 procedure, in requiring them to
state that in so many words upon pain of dismissal for irrelevancy. The facts that the
pursuers' claim is based on alleged negligent omissions on the part of the defender, rather
than on things positively done by it, and that it was Mr Rose's own actions which directly
precipitated his own death, are relevant matters which can and will be taken into account in
the ultimate determination of the nature and extent of any duty of care incumbent on the
defender; they are not features of the case which can be said in the abstract to exclude the
existence of any such duty. Finally, although reliance is an element necessary to create
liability in the context of an assumption of responsibility said to have called forth a duty of
care to prevent or mitigate economic loss, it is far less clear on the law as it exists and so far
as it has now developed that it has a part to play in the borrowed context of the creation of a
duty of care in relation to independent contractors on the part of a main contractor or site
controller, where its role may well be regarded as being supplanted by the actual control
exerted over the person to whom the duty of care is owed. It is certainly not possible to say
25
in the abstract that the pursuers' case in this regard is bound to fail for want of an averment
that Mr Rose relied on the defender in any particular regard.
Conclusion
[42]
The case will now proceed to disposal by way of proof, without excision of any of the
pursuers' pleadings.
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