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Cite as: [2002] EWCA Civ 558

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Neutral Citation Number: [2002] EWCA Civ 558
B3/2001/1941/A, B3/2001/1941

(His Honour Judge Machin)

Royal Courts of Justice
London WC2
Wednesday, 10th April 2002

B e f o r e :





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Mr C Mendoza (instructed by Messrs Godsons, Sleaford, Lincs) appeared on behalf of the Appellant Claimant.
Mr M Diggle (instructed by Messrs Keoghs, Coventry) appeared on behalf of the Respondent Defendant.



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  1. LORD JUSTICE WARD: Lord Justice Sedley will give the first judgment.
  2. LORD JUSTICE SEDLEY:The appellant, Mr Anthony Nixon, was employed as a bricklayers' labourer on a building site at Ruskington in Lincolnshire. The respondents, who were his employers, were putting up an estate of two-storey houses. The work was governed by the provisions of the Construction (Health, Safety and Welfare) Regulations 1996. Around the brick structures, which were still unroofed, were three lifts of scaffolding which had been erected by an independent contractor. The third lift, which is the one we are going to be concerned with, was a little lower than what were to be the ceilings of the first floors.
  3. 10th February 1997 was a windy winter day. I do not suppose that it was freakish; it was blowy, as winter days can be on the Wolds. The appellant, as was his job, mixed a bucket of mortar on the ground and took it up for the use of the two bricklayers who were working on the interior of the first floor. He climbed the external ladder which ran from the ground to the third lift of the scaffold and walked around two sides of the building to the far side. There he fell into the interior of the house and suffered a nasty injury to his right elbow. He believed that he had been struck on the back of the head and toppled by a loose plank caught by the wind. This supposition (for it was no more) came to play a misleading part in the decision of the case. As will be seen, it really did not matter.
  4. The Construction Regulations, to which I have referred, included the following relevant provisions:
  5. "5Safe places of work (1) There shall, so far as is reasonably practicable, be suitable and sufficient safe access to and egress from every place of work and to any other place provided for the use of any person while at work, which access and egress shall be without risks to health and properly maintained.
    (2) Every place of work shall, so far as is reasonably practicable, be made and kept safe for, and without risks to health to, any person at work there.
    (3) Suitable and sufficient steps shall be taken to ensure, so far as is reasonably practicable, that no person gains access to any place which does not comply with the requirements of paragraphs (1) or (2). ...
    Regulation 6 reads as follows (and I am going to take the paragraphs of it out of numerical order because they make more sense that way):
    "6Falls (1) Suitable and sufficient steps shall be taken to prevent, so far as is reasonably practicable, any person falling.
    (3) Without prejudice to the generality of paragraph (1) ... where any person is to use a means of access to or egress from a place of work from which access or egress he is liable to fall a distance of 2 metres or more
    (a)there shall, subject to sub-paragraphs (c) and (d) below and paragraph (9), be provided and used suitable and sufficient guard-rails and toe-boards, barriers or other similar means of protection to prevent, so far as is reasonably practicable, the fall of any person from that place, which guard-rails, toe-boards, barriers and other similar means of protection shall comply with the provisions of Schedule 1; ...
    "(2) In any case where the steps referred to in paragraph (1) include the provision of -
    (a)any guard-rail, toe-board, barrier or other similar means of protection; or
    (b)any working platform,
    it shall comply with the provisions of Schedule 1 and Schedule 2 respectively."
  6. If one turns to Schedule 1 and Schedule 2, they include the following relevant provisions:
  7. "SCHEDULE 1
    3The main guard-rail or other similar means of protection shall be at least 910 millimetres above the edge from which any person is liable to fall."
  8. That I understand to be around hip or waist height to the average adult.
  9. "6Guard-rails, toe-boards, barriers and other similar means of protection shall be so placed as to prevent, so far as is practicable, the fall of any person, or any material or object, from any place of work.
    4Stability of working platformA working platform shall ...
    (b)be so erected and used as to ensure, so far as is reasonably practicable, that it does not become accidentally displaced so as to endanger any person; ..."
  10. Returning to the Regulations themselves, regulation 6(4) reads:
  11. "Means for the prevention of, or for protection from, falls provided pursuant to sub-paragraph (a) and (d) of paragraph (3) may be removed for the time and to the extent necessary for the movement of materials, but shall be replaced as soon as practicable."
  12. Finally, but parenthetically for the purposes of this appeal, it is also worth noting that regulation 6(5) deals with ladders and says that they are not to be used as means of access or egress unless it is reasonable to do so having regard to the material risks; moreover that, where a ladder is so used, it is to comply with the provisions of Schedule 5. Schedule 5, paragraph 4, provides:
  13. "The top of any ladder used as a means of access to another level shall, unless a suitable alternative handhold is provided, extend to a sufficient height above the level to which it gives access so as to provide a safe handhold."
  14. A glance at the photographs of this scaffolding, taken by the employer himself within hours of the accident, shows an astonishing number of breaches of the regulations that I have read out. The scaffold boards look as if a bomb has hit them; they are all over the place. They have clearly not been secured to the scaffolding. More important - in fact, crucially for the present case - there is no guard-rail on the inner edge of the scaffolding, notwithstanding that, from a height of not more than a foot above the level of the planks, there is a sheer drop which common sense tells one must be more than two metres since it is from what is, in effect, the ceiling to the floor of what is going to be the bedroom of the house. It was agreed in evidence that the drop was some seven or eight feet. This, therefore, was an unfenced drop, in clear breach of the regulations. If there was an inner ladder which corresponded to the outer one and went down from opposite the point at which the outer ladder reached the scaffolding, it does not appear in any of the photographs and, although the judge inferred on the balance of probabilities (it has to be said by pure guesswork) that it was more probably than not there, it was certainly not so fixed as to stand proud, as it should have done, of the upper reach of the scaffolding so as to afford a secure handhold to anybody who wanted to climb over and down it. It was over this edge that the appellant went.
  15. There could not, in my view, be a clearer prima facie case of liability for breach of statutory duty. So far as it may matter, the state of the planking was such as to make it highly likely that it was that, in some form, which caused him to fall, whether or not it was in the precise way he believed it had happened (that is to say, being struck on the head by a flying plank) or whether it was some other form of dislodgement.
  16. Nevertheless, it has been argued before us today by Mr Diggle, for the respondents, that liability is negatived by the concluding findings of the judge who tried this case, His Honour Judge Machin, sitting at Lincoln County Court on 3rd August 2001, his judgment having been reserved overnight after a day's hearing. The account given by the claimant was in essence that he was carrying the bucket of mortar to a point of the scaffolding where it was his intention to place the bucket on the scaffold, swing himself down into the window aperture below, and then lift the bucket down to the level of the floor. The final passage of Judge Machin's judgment reads as follows:
  17. "It seems to me that that account of his being where he was, and having adopted the manoeuvre or having been about to adopt the manoeuvre which he says he was about to adopt, is a proposition which, on the balance of probabilities, I find myself unable to accept. Even were it not the case, as I have found, that the internal ladder was in the position that it was - even were it not the case - in my judgment it is inconceivable that anybody would attempt, with two buckets of mortar or even one bucket of mortar, to gain access to the building in the way that the claimant said he was going to. That would involve his in fact going over the top of the lintel and with the buckets in some way manoeuvring himself safely down on to the floor. In the final analysis I cannot myself see that that is a manoeuvre which he would have seriously contemplated making, nor one which he would have been allowed to make or permitted to make had anybody known that he was doing it.
    And so on the basis of those findings of fact on the balance of probability I am, I am afraid, unable to accept the claimant's account that he was struck by a scaffolding board - not, as I say, simply for that reason but for the reason that he seemed unclear, even in his own mind when he gave evidence about it, by what it was he was struck, but the significance of the area where he says and what he was about to do is that it in my judgment, as I hope I have already made clear, casts very considerable doubt on the whole of his account of what happened.
    It may be, in my judgment, on the balance of probabilities that his fall was caused by a gust of wind. I do not find that as a fact, it is not the way the claimant puts his case and I do not, as I say, find it conclusively as a fact, but were I to find as a fact that he was in fact propelled into the inside of the building by a gust of wind and sustained his injuries in that way then I would be bound to find that the defendant succeeds on the basis of the defence raised in paragraph 6(1) of his defence, that this experienced builder's labourer was in fact the author of his own misfortune by ever venturing on to scaffolding in the way that he did in the circumstances of those kind of winds blowing when he must have known, as I find as a fact, that the other two bricklayers had moved into the inside of the building because the strength of the wind was in fact causing the outside walls to move."
  18. Alternatively, it is Mr Diggle's submission that those findings amount to justification for a deduction of most of the damages by way of contributory negligence.
  19. I regret that, for my part, I find myself entirely unable to accept the judge's conclusions or indeed his method of reasoning. Inexplicably, the judgment has overlooked the uncontested fact that the respondents were in breach of statutory duty. Had that been taken into account from the start, as it should have been, it seems to me that the judge would have had to hold the respondents liable.
  20. Mr Diggle relies upon two well-known decisions for the proposition that he can, even so, shift the blame entirely to the appellant. One is Boyle v Kodak Ltd [1969] 1 WLR 661, a decision of the House of Lords. The other, which followed and applied Boyle, is Baker v T Clarke (Leeds) Ltd [1992] PIQR P262. These cases, it seems to me, establish that the employer may be exonerated where it is the claimant himself who has put the employer in breach of statutory duty by ignoring an obvious danger which it was his duty as a skilled and responsible workman to guard against. Even there Boyle v Kodak Ltd demonstrates that, if the danger was less than obvious, the employer will only partially escape liability.
  21. The present case could not, in my judgment, be more different. The appellant was a labourer whose job, as Mr Mendoza accurately says, was to do what he was told to do. He was told to fetch mortar to the bricklayers. He was provided with scaffolding from which to do it. He was not told on 10th February to stop using the scaffolding. It was dangerous underfoot and it was unfenced on the inner side. Most importantly, it was not the appellant who had failed to erect a guard-rail, or who had removed a guard-rail if one had been erected, or who had fail to lash the boards. It was the respondents, by their contractor, who had put up deficient scaffolding. In these circumstances it is impossible, in my judgment, to blame the appellant for the accident, whether wholly or in part.
  22. It seems to me that the judge (and the Bar may have some responsibility for this) was sidetracked into irrelevant questions on the physical relationship of the lintels to the scaffold level and the availability of the inside ladder. The respondents, as defendants, had not pleaded any such defence. What they had pleaded (in paragraph (vi) of the particulars of their denial of negligence) was:
  23. "The scaffolding was inspected and it was decided that it was dangerous for any worker to go out on the scaffolding on that particular day and the workers were therefore instructed not to go on to the scaffolding. The claimant ignored this warning."
  24. Having by their pleading admitted the danger, the respondents failed wholly in evidence to establish that any such warning had been given. The judgment does not reflect this fact at all. Instead, it blames the appellant for doing the very thing which the respondents had failed to warn him against doing: that is, going round the third lift of a scaffold which was not only deficient in a way which was likely to allow him to fall, but was deficient in a way which was likely to make him fall in the windy conditions that obtained. For my part, I do not accept that to do so was so obviously dangerous that the appellant can be blamed for not in any event, and absent any warning or instruction, having taken a different route.
  25. The danger relied upon by the respondents is the danger of harm or damage by the wind. But the danger which caused the injury was the lack of a guard-rail. Had there been one, it might well not have mattered if the appellant had lost his footing, been hit on the head by a flying plank or simply been blown sideways. That, with all respect, is the point of having a guard-rail: it is to stop people accidentally or inadvertently or even by foolishness falling into a dangerous space. It seems to me that everything went wrong from the moment the judge lost sight of the simple fact that the respondents were in plain and serious breach of their statutory duty.
  26. For my part, I would allow the appeal and enter judgment for the appellant for sums which we are now in a position to quantify. General damages for pain, suffering and loss of amenity were agreed below at 15,000. Special damage was agreed at 1,483.52. To those amounts must be added whatever interest now falls due by counsel's joint calculation.
  27. There remained, and remains, the question what should be awarded to the claimant for loss of earning capacity - the so-called Smith v Manchester element of the award. He is 31 years old now. He is a persistent worker, who was back at work reasonably quickly after suffering a nasty elbow fracture, and he has remained in work, though it is casual work, since. Nevertheless, it is clear from the agreed medical evidence that the prospects are not good. He already had a damaged left elbow as a result of a motorcycle accident, putting osteoarthritis in prospect in the coming years. It makes the occurrence of the right elbow injury an added and particular misfortune, because the evidence of the orthopaedic surgeon, Mr Jones, is that it, too, is going to suffer an early onset of osteoarthritis, and the appellant at that point will become bilaterally, instead of unilaterally, handicapped. Putting it briefly, the medical opinion is that the onset of real disability has been accelerated by some ten years. The appellant at present is earning just under 12,000 a year. The question is what purchase to give to the earning capacity which he is likely to lose, taking one contingency with another, over the rest of his working life. In my judgment, the particular circumstances of this injury to this man justify an award a little in excess of a two-year purchase. I, for my part, would give him 25,000 under this head.
  28. Accordingly, I would direct that judgment be entered for the amounts that I have indicated.
  29. MR JUSTICE SUMNER:I agree with the judgment of Lord Justice Sedley and have nothing to add.
  30. LORD JUSTICE WARD:In concentrating on why the claimant fell off the scaffolding, the judge lost sight of the fact that he did fall. He would not have fallen if guard-rails had been there to prevent this very happening. The place where he was working was not safe. There were, therefore, a series of breaches of the Construction Regulations, as my Lord has catalogued them. Liability is established accordingly. Those regulations were there to protect the claimant from the folly which the judge was inclined to think made him the author of his own misfortune through:
  31. "... ever venturing on to the scaffolding in the way that he did in the circumstances of those kind of winds blowing when he must have known ... the strength of the wind was in fact causing the outside walls to move".
  32. For the reasons given by my Lord, I agree that there was no contributory negligence. I also agree with my Lord as to the assessment of the Smith v Manchester damages and consequently I, too, would allow this appeal and enter judgment for the claimant for the relevant figure, with the interest to be calculated as well.
  33. (Counsel addressed their Lordships regarding consequential matters. Their Lordships retired briefly to consider the matter further and then returned to court)

  34. LORD JUSTICE WARD: The appeal will be allowed with costs both here and below, the costs here to include the costs of the respondent's notice. Costs are awarded on the usual basis that costs follow the event. So far as the Part 36 offer is concerned, the whole purpose of Part 36 is to encourage compromise wherever possible. It works only when realistic attempts are made to bring the case within a sensible bracket. There is wide disparity in this case and the defendants got it wildly wrong in their assessment of their prospects of success. Part 36 will not work unless we ensure that it has teeth which leave their mark on the purse of the losing party. For that reason, and because Part 36 makes it mandatory, the appellant will be able to tax his costs on an indemnity basis from the relevant date (which can be supplied by counsel).
  35. The other and more important element of Part 36 is that it gives the court a power to award interest up to 10 per cent over base rate. That simply does not work if the court does not take account of the fact that judgment debt rate, now running at 8 per cent, is running at twice the current bank rate. In order to mark the disapproval of the defendants' tactics (and that is disapproval simply because they got it wrong, not because of any misconduct in any other sense at all), we consider that the appropriate rate is at 5 per cent over judgment debt rate (that is to say, at 13 per cent, within the bracket permitted by the rules, even at the top end of that bracket) and that interest will be charged on the damages, again from the appropriate date, and on the costs once they have been assessed by the costs judge.
  36. Order: appeal allowed with costs here and below (the costs here to include the costs of the respondent's notice), to be taxed on an indemnity basis from the relevant date; judgment entered for amounts indicated plus interest as indicated (counsel to calculate and supply figures).

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