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Cite as: [2006] EWHC 849 (QB)

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Neutral Citation Number: [2006] EWHC 849 (QB)
Neutral Citation Number: [2006] EWHC 849 (QB)


Royal Courts of Justice
Strand, London, WC2A 2LL
3rd March 2006

B e f o r e :



BARBARA GRAY (widow and administratrix of
the estate of IAN GRAY deceased)
- and - Claimant
LIMITED First Defendants
- and -
- and -
Thistle Hotels plc) Third Defendants


Mr William Featherby for the claimant
Mr Steven Ford for the 1st defendants
Mr Martin Porter for the 2nd defendants
Mr Cohn McCaul QC for the 3rd defendant
Hearing dates: 6th-9th December 2005



Crown Copyright ©

    H.H. Judge Marr-Johnson:


  1. Ian Gray was a fire alarm installation engineer employed by the first defendants, Fire Alarm Fabrication Services Ltd ("FAFS"). On 9 January 2001 he died in an ambulance on the way to hospital after falling through a skylight over the station manager's office at Victoria station. It is agreed on all sides that the accident was tragic and unnecessary, and ought to have been easily preventable.
  2. In this action Mr Gray's widow, Barbara, claims under the Fatal Accidents Act 1976 and as administratrix of his estate damages for negligence and breach of duty arising out of the death of her husband against his employers, FAFS; against E.H. Humphries (Norton) Ltd ("Humphries"), a company of electrical contractors to whom FAFS were sub-contracted; and against Thistle Hotels Ltd ("Thistle") who owned and occupied the hotel premises where Mr Gray was working at the time of his death.
  3. Proceedings were issued on 6 January 2004 and FAFS promptly admitted their liability in the matter. On Tuesday 6 December 2005 I approved a settlement of the claimant's action as against them and the claimant discontinued any further proceedings against Humphries and Thistle. On the following day I commenced hearing the present proceedings which are a claim by FAFS against Humphries and Thistle for contribution towards the damages and costs which they have had to pay to the claimant. The claim is brought pursuant to s1 of the Civil Liability (Contribution) Act 1978. Both Humphries and Thistle deny any liability to contribute to those damages or costs as suggested by FAFS. In addition Humphries claim the benefit of a contractual indemnity which would (they say) exempt them in any event from liability to compensate FAFS, even in relation to matters arising from their own negligence or breach of statutory duty.
  4. The Evidence

  5. FAFS are a small company specialising in the installation and maintenance of commercial fire alarm systems. They began originally in October 1988 as a partnership of five persons, one of whom was Mr Gray. In December 1990 the partnership became a limited company in which Mr Gray had a 20% shareholding. Over the years two of his colleagues, John Butler and Graham Corden, assumed an increasing responsibility for the planning and office work, whereas Mr Gray preferred to continue working with the other operatives in the field. Altogether there are presently some 19 persons on the company payroll.
  6. 5. It seems clear from the evidence that FAFS, although comparatively small in size, were then and are now a good and efficient organisation so far as their work is concerned with a high reputation in their specialist field. In about 1975 some of the persons who subsequently went on to form the original partnership had been involved in the installation of a fire alarm system in the Grosvenor Hotel at Victoria station which was then owned by British Rail. After FAFS came into existence those same persons or their colleagues continued to maintain the system which they had previously installed, Of course the British Railways Board has long been consigned to history; the hotel now belongs to Thistle and is known as the Thistle Victoria Hotel.

  7. Over the years before his death Mr Gray had therefore carried out work from time to time at the hotel, as had many of his colleagues. One of the constituent wires of the system ran along a cable tray located on the external rear wall of the hotel between the main building and the annexe. In order to get to the cable tray it was the practice to climb out of a lavatory window of the hotel at second floor level and walk along a roof for some distance parallel to the rear wall of the main building. This area of roof, which is where Mr Gray eventually met his death, is shown most clearly in the photographs at bundle pages 489 and 493A-D and on the plan which is at page 531. The roof does not belong to the hotel but forms part of the premises of Victoria Station. However it does not appear that over the years Mr Gray or his colleagues ever gave any thought to the fact, or indeed realised, that every time they got out onto the roof to carry out work on the fire alarm system they were actually trespassing on railway property.
  8. In 2000 Thistle decided that the hotel needed substantial refurbishment, and for the electrical work Thistle appointed Humphries as the main contractors. Thistle had had a longstanding relationship with Humphries, and had used them for electrical work on many previous occasions. Thistle also knew of course that FAFS had unrivalled experience of the fire alarm system at the hotel, and for this reason instructed Humphries to appoint FAFS as their sub-contractors for the work of installing the new system which was required. Humphries had not previously worked with FAFS.
  9. In due course FAFS received from Humphries an order dated 24 November 2000 for work to the value approximately £141,000 less a main contractor's discount of 5%. On 12 December there was a meeting on site between representatives of Thistle, Humphries and FAFS at which routing of the cables for the new system was one of the subjects discussed. There is a substantial disagreement between the witnesses about what was said and how the matter was left at the conclusion of the meeting, a matter to which I shall have to return later. However FAFS' representative at the meeting, John Butler, is adamant that one of the cabling routes which was left open as a live possibility for that part of the building which joined the annexe to the main hotel was the external route along the line of the existing cable tray.
  10. The work was due to begin on Monday 8 January 2001. On the previous Friday Mr Butler had a meeting on site with Mr Gray. Although both men were shareholders in the company, Mr Butler was effectively acting as the representative of management and briefing Mr Gray on what work needed to be done. Mr Gray had not attended the meeting on 12 December 2000. Mr Butler says he relayed to Mr Gray his understanding of the conclusions of that meeting, namely that there were three available options which were as follows:
  11. i) The bare cable could be run along internal walls, negotiating various period features such as cornices and ornate ceilings. This would not present an attractive appearance.

    ii) The cable could be run along the same line as above, but boxed in so as to present a less disfiguring appearance.

    iii) The cable could follow the line of its predecessor and run externally.

  12. Mr Butler says that he left it to Mr Gray to decide which option to choose when he came to do the work. He knew that Mr Gray would be working with Andrew Penney, another shareholder of the company at that time and also an extremely experienced operative. Mr Butler felt that Mr Gray and Mr Penney had far more recent practical experience of routing cables than he did, and that it was therefore preferable to leave it to them to decide precisely where the cables should run.
  13. Work started on Monday 8 January 2001. However Mr Penney was on holiday on that day and it is not clear what work, if any, Mr Gray did in his absence. On the following morning both men appeared for work and there was a discussion, amongst other things, about how the cable in question should be routed. Mr Gray told Mr Penney that there was no need for the cable to be routed externally, but having discussed the matter both men decided that it was not feasible to route the cable internally. According to Mr Penney a bare cable on the wall "would not have looked right" and in any event they felt that the walls were too thick to drill through without the use of special equipment which they did not have. They decided therefore to route the new cable along the line of the existing external cable.
  14. The only witness who was able to help with the sequence of events thereafter was Mr Penney, and even he was not able to explain precisely how or why Mr Gray came to fall through the skylight in the way he did. While Mr Gray was working inside the hotel in the corridor, Mr Penney got out of the window and walked along the length of roof shown in the plan and photographs to the area where the cable tray was situated. After he had been working there for approximately 1½ hours, Mr Gray put his head out of a window and said he would come to lend Mr Penney a hand. Approximately 10 minutes later a person who happened to be on the roof engaged on other work of some kind told Mr Penney that he thought his colleague had fallen through a skylight. Mr Penney immediately made his way downstairs through the hotel to the station concourse and thence up to the station manager's office where he found Mr Gray mortally wounded, being attended to by a paramedic.
  15. It is not suggested that the other workman who spoke to Mr Penney on the roof witnessed the actual moment of Mr Gray's fall. His principal injury was a massive blow to the head, which seems to have been caused when his head struck the corner of a filing cabinet as he fell a distance of some 4½ metres to the office floor. There are photographs showing the window in question as it appeared after his fall.
  16. It probably does not matter much precisely how or why Mr Gray came to fall, but it seems likely that he was edging his way along the side of some ducting beside the walkway which is shown in the photographs, along the route recently taken by Mr Penney (and presumably by Mr Gray himself on previous occasions). Mr Penney described the manoeuvre as an awkward one because there was not much available footroom. While Mr Gray was doing this it seems that he unfortunately managed to slip, trip or overbalance in some way so as to be propelled head first through the Georgian glass window which formed part of the roof to his right. It is unlikely that he chose deliberately to tread on the window because although, according to Mr Penney, the panels were much obscured with dirt it could not safely be assumed that they were not glass. In any event, if he had gone through the window feet first it is unlikely that his head would have struck the filing cabinet with such force in the way it did. I should say at this stage that I saw no reason to doubt anything Mr Penney told me about the events leading up to the moment of Mr Gray's fall.
  17. The Issues

  18. No one, it seems, gave any thought to the danger which FAFS' employees were encountering every time they walked along the roof to get to the area where the cable tray was situated. Quite simply, the means of access to their place of work was unsafe because of the obvious risk that an employee might fall through the roof if he lost his footing, and in failing to provide a safe means of access FAFS, his employers, were guilty of negligence at common law; they were also no doubt guilty of one or more of the breaches of statutory duty alleged in paragraphs 7 and 8 of the Particulars of Claim. FAFS have realistically accepted this situation by settling Mrs Gray's claim against them as mentioned earlier. FAFS' claim for contribution from Humphries and Thistle is put in the following way:
  19. i) As against Humphries and Thistle jointly, FAFS say that in the circumstances of this case each owed Mr Gray a duty of care to ensure that he was kept reasonably safe and free from danger whilst carrying out work at the hotel. FAFS say that Humphries and Thistle each left it to the other to take the necessary precautions to ensure the safety of Mr Gray's workplace (including the means of access thereto), and that in the result there was a "lacuna of responsibility" whereby each wrongly left it to the other to coordinate and supervise FAFS' work on site. In the result, it is said, no one exercised the responsibilities of a main contractor towards a subcontractor's employee in those necessary respects.

    ii) As against Humphries alone, FAFS repeats the matters alleged in i) above. FAFS say that Humphries, despite its reluctance to assume the role, was in truth the main contractor on site for electrical work and in breach of its main contractor's duty of care which it owed to Mr Gray notwithstanding the fact that he was employed by a subcontractor.

    iii) As against Thistle alone, FAFS relies on the fact that only Thistle had knowledge of certain highly relevant facts. Most importantly, only Thistle knew that persons were not allowed onto the roof by Railtrack for any purpose unless and until there had been strict compliance with Railtrack's "permit to work" system. In the circumstances, it is said, Thistle should have made it quite clear from the outset that any work requiring access to the roof was not permissible. Alternatively, if access to the roof were necessary and the permit to work system had been in force, Mr Gray's accident would not have happened because Railtrack would have insisted on the provision of safe means of access to the work. It is this special knowledge possessed by Thistle, but not by Humphries or FAFS, which is said to give rise to a duty of care towards Mr Gray.

  20. Humphries also claims to be indemnified by FAFS from the consequences of its own negligence or breach of statutory duty pursuant to the terms and conditions of its contract with FAFS. I will defer consideration of this part of the case until later.
  21. Main Factual Dispute

  22. It is an essential plank of the defence of Humphries and Thistle in these contribution proceedings that, according to their witnesses, Mr Butler was clearly instructed not to route the cable externally at the meeting on 12 December 2000. Mr Butler denies this. It is necessary at this stage therefore to resolve this important conflict of fact.
  23. Evidence on behalf of Humphries was given by their senior contracts manager, Carl Lewis. His evidence was somewhat variable. In his witness statement Mr Lewis said it was made clear at the meeting that no outside work was required, and he stressed repeatedly that there was never any suggestion that one of the cables might be routed externally. In oral evidence however he conceded at an early stage of his evidence in chief that the question of external routing had been discussed, but said that it was rejected because the roof in question was said by someone at the meeting to be "dicey". This was not a matter which he had mentioned in his witness statement. In cross-examination he agreed with Mr Ford for FAFS that at the meeting the question which route the cable was to take was left to be decided later, which would of course accord with Mr Butler's recollection. In the course of a lengthy re-examination however he became reconverted to the view that there never was any question of the cable being installed externally, and that the only question left to be decided at the meeting was whether it was to be boxed in or left bare on an internal wall.
  24. Three witnesses gave evidence on this issue for Thistle. Michael Sloan was at the time the general manager of the hotel, and one of those present at the meeting on 12 December. He was clearly of the view that Mr Gray was entirely responsible for his own death and no other person bore any liability in the matter. He agreed that the three options were discussed at the meeting and said his recollection was that it was definitely decided that the cable would be routed internally. In other parts of his oral evidence he said his "impression" was that the cable would be routed internally, which was also his preference provided that it was boxed in rather than left bare, and he "assumed" that that was going to happen.
  25. Wendy Warren was another person present at the meeting. She was an employee of Carnell Warren Associates Limited, a company of mechanical and electrical engineers who specialise in design work. On this occasion she was employed to assist Mr Cliff who was project manager for the Thistle Group. Mr Cliff was an extremely busy man at that time with responsibilities extending across the whole group and, as I understand the position, it was his practice to engage Miss Warren from time to time to assist him by attending meetings and generally liaising with contractors on his behalf.
  26. Miss Warren's evidence was that at the meeting Mr Butler had said that the existing route of the cable was on the external wall, but that the route was "precarious" and they really needed to look at other options. In her witness statement she says it was agreed in principle that an internal route needed to be found and the matter was deferred for further discussion at the next meeting which was scheduled for 15 January 2001, i.e. after the date of Mr Gray's accident. She did not therefore expect any work on the cabling to start before that date. In cross-examination she said initially she felt it was "95% agreed" that the cable route was going to be internal, and the only real doubt was whether the cable was going to be boxed in or surface clipped (i.e. left bare). That evidence of course left open a 5% possibility that the route might still be an external one. She then changed her evidence somewhat by saying it was "100% clear" that one or other of the internal methods was going to be used, and added "I believe we had agreed that it would run internally". She then said that if she had had any lingering doubt (i.e. as to the agreement which had been reached) she believed she would have stopped FAFS from working outside.
  27. Miss Warren was referred to the wording of paragraph 22.3 of her minute of the site meeting of 12 December, which is in the following terms:
  28. "West wing 2nd to 3rd floor crossing between wing and main building to be agreed/some surface wiring may be required".

    Miss Warren explained that this was not to be construed as implying in any way a concession that the external route remained a possibility. Her intention was merely to record the fact that it remained to be agreed whether the internal cable, where it crossed a staircase between the annexe and the main building, should remain bare (option 1, "surface wiring") or be boxed in (option 2). She also said that although she believed any use of the existing external route over the station had been ruled out, another external route might have been considered later.

  29. The final witness for Thistle was John Cliff who, as I mentioned earlier, was project manager for the Thistle Group. He recalled Mr Butler saying at the meeting when the options were discussed that the route taken by the existing cable was external. In a witness statement made in 2002 Mr Cliff said it was stated at the meeting by either Mr Sloan or himself that they were not sure how stable the outside roof was. In a further statement made in 2005 he said that Mr Sloan had pointed to the roof where the glass panels were situated and announced that the roof was fragile. In his oral evidence he said that Mr Sloan had described that section of the roof as dangerous. (After some initial prevarication Mr Sloan, in his evidence, had said he was "pretty certain" that he had not in fact made any such remark). Mr Cliff says that after the remark was made there was no further discussion of external routing, and by the end of the meeting he assumed everyone was in agreement that the cable was to be routed internally. He himself had said during the discussion that if a bare cable were used without boxing in (option 1) it could be chased into the wall later when the area was redecorated. He considered that Miss Warren's minute did not adequately reflect the agreement about internal routing which had been reached at the meeting.
  30. Conclusions on the Main Factual Dispute

  31. I accept that all witnesses were doing their best, assisted by their written statements, to bring to mind remarks made by several different persons in relation to one of a number of topics discussed at a meeting which had taken place nearly six years earlier. Those remarks, if they were made, were not minuted at the time and the witnesses would not have had any particular reason to remember them after the meeting had not Mr Gray suffered his unfortunate accident four weeks later.
  32. Mr Butler, in my judgment, gave his evidence with honesty and conviction. He certainly appeared to me to be wholly satisfied in his own mind that at the conclusion of the meeting it was left open to him to decide which of the three cabling options to pursue.
  33. So far as Mr Lewis and the three witnesses for Thistle were concerned, there were considerable variations of recollection, which is hardly surprising given the lapse of time. Such variations were not only between the evidence of one witness and another, but sometimes internally within the evidence of a particular witness. There were substantial variations for instance in the oral evidence of Mr Lewis, and between his oral evidence and his witness statement, which I have rehearsed earlier. He did actually agree at one stage, although he later retracted it, that at the meeting the question of routing the cable in question was left to be decided later. This of course accords with Mr Butler's recollection. In relation to all the witnesses for Humphries and Thistle I was struck by the frequency of their use of the passive tense so as to say "it was agreed" that something or other should or should not be done, Very rarely if at all did any witness say precisely who had made the proposal in question, and who exactly had agreed to it. No witness said in terms that he or she told Mr Butler that he was not to route the cable externally. Indeed the effect of much of the evidence was really no more than that it was "assumed" by the end of the meeting that one or other of the internal routes would be pursued. Miss Warren's brief minute is, it seems to me, highly ambiguous but probably more consistent with Mr Butler's understanding of the situation that the question of routing the cable was left open for him to pursue and none of the three options had been excluded. If there had been a firm agreement not to pursue the external option I would have expected Miss Warren to have recorded that fact in the minutes, however briefly. Overall I was left with the impression that the witnesses for Humphries and Thistle were affected by the knowledge that a man had died, and were anxious to assure the court (and themselves) that they would not have lent themselves to any course of action which might conceivably have lead, albeit indirectly, to Mr Gray's death.
  34. A further powerful consideration to my mind is that Mr Butler struck me as a decent and honest man. I do not believe he would have told Mr Gray that it was an option to route the cable externally if it had been made plain to him either by Humphries or by Thistle that FAFS were not allowed to go on the roof, and that notwithstanding what might have happened in the past any new cabling would have to be internal.
  35. In the result I have reached the conclusion that although stray remarks may possibly have been made by various persons at different times during the meeting, perhaps as an aside or a casual observation, no one made it clear to Mr Butler that he was not to proceed with the third option of external cabling, and that he left the meeting reasonably under the impression that it was for FAFS to decide which route to pursue. Equally I am not satisfied that Mr Butler told the meeting that the roof was "precarious" or unsafe in some way, or that it was brought home to him that any other person considered the roof to be dangerous. I accept his evidence that it was a long time since he had been on the roof himself, and he had no recollection one way or another about the state of the roof at the time of the meeting. What he did know, and what he told the others, was that the line of the existing cable lay along an external length of wall and that it was an option to lay the new cable along the same route as before. In general terms I accept the substance of Mr Butler's evidence on this topic.
  36. There were representatives of three parties present at the meeting on 12 December: the employers, the main electrical contractors and the building owners. Each had a common interest in progressing the installation of the new fire alarm system to a safe and successful conclusion. Any consideration of liability must begin with the proposition that the persons principally responsible for this unnecessary tragedy were the management of FAFS, Mr Gray's own employers. Mr Butler told Mr Gray that the external route was an option without making any inquiry to establish or remind himself whether there existed safe means of access to or from the place of work where the external installation would take place. On FAFS' behalf Mr Ford conceded in argument that his clients were at least 50% to blame for what occurred. The question which arises is whether liability attaches to any other party. Both Humphries and Thistle say of course that FAFS were solely to blame.
  37. In Stapley v Gypsum Mines Ltd [1953] AC 663 at 681 Lord Reid said:
  38. "One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally."

  39. Those remarks were quoted by Upjohn LJ in Clay v AJ Crump & Sons Ltd [1964] QB 533 CA at 569. In that case an architect, a demolition contractor and a building contractor were each found liable, in descending order of culpability, to an employee of the building contractor who was injured by the sudden collapse of a wall on a building site. The important point (as it seems to me) in relation to matters of causation is that, in Lord Reid's words, there is no test which can be applied generally. In other words, each case must be judged on its own facts.
  40. So far as Humphries are concerned, the case against them in essence is that as main electrical contractors in overall charge of the electrical work which needed to be done on site, including installation of the new fire alarm system, they owed Mr Gray as one of the persons who would be directly affected by their decisions a duty at common law to take reasonable care for his safety. The potential existence of such a duty is well established by such cases as Clay (supra) and McArdle v Andmac Roofing Co [1967] 1 All ER 583. A more recent example is Davis v Earldene and Others, unreported, CA QBENF 98/0242/1, 23 February 1999. In the present case the existence of such a duty is confirmed, and its scope defined, in my judgment by the following considerations:
  41. i) The quote for the work which Humphries received from FAFS was for £134,662, and their own quote to Thistle was £148,834. Thus the premium which Humphries were charging for supervising the contract (rounded off) was £14,171. Clearly a substantial degree of supervision was envisaged in return for such a payment.
    ii) That quote contained the words "we require daily liaison" and an assurance that the work would be carried out "in accordance with the Factories Act".
    iii) The order Humphries placed with FAFS on 24 November 2000 requested a method statement, risk assessments and programme of works. It stated "all work to be agreed and carried out with close liaison with Mr CD Lewis contracts manager".
    iv) Mr Lewis told Health and Safety investigators that he was prepared to prevent FAFS from starting on site if risk assessments were not supplied.
    v) Humphries' standard terms and conditions provided that FAFS' work had to be carried out to Humphries' satisfaction and in conformity with all reasonable directions by Humphries, and that FAFS must comply with Humphries' health and safety policy.
    vi) That policy acknowledged Humphries' duty to "co-ordinate safety activities between main contractor, sub-contractor and any other individuals who might be working on the same site".

  42. In the event FAFS never did supply a proper method statement or risk assessment, and Humphries never called for one. The risk assessment which FAFS did supply was self-evidently insufficient for the purpose (it was generic rather than tailored to the circumstances of the job in question) but Mr Lewis forwarded it to Thistle without comment and allowed FAFS to start work shortly afterwards. Notwithstanding his remarks to the Health and Safety investigators Mr Lewis seems to have had only a hazy idea of Humphries' duty to liaise with FAFS on safety matters, and to have been wholly unaware of Humphries' duty as main contractors to exercise general supervision over the activities of their subcontractor. He acknowledged in evidence that this was probably the result of inadequate training by his employers. What seems to have operated powerfully on his mind was the consideration that FAFS had had a long association with the hotel; they or their predecessors had installed the previous system; and they had continued their experience, and extended their knowledge, of the system by maintaining it over the intervening years. In those circumstances Mr Lewis was, it seems, under the impression that any liaison with FAFS or supervision of their activities ought to be carried out by Thistle, not Humphries.
  43. In my judgment this was a wholly unwarranted assumption on Mr Lewis's part and, of course, completely the reverse of the true contractual situation. If Mr Lewis had called for a proper risk assessment and method statement from FAFS he would have realised that there was a proposal to carry out work which would entail FAFS' employees walking on the roof outside the hotel and Humphries, as the main contractor in charge of coordinating safety activities, ought then in my judgment either to have forbidden the work or alternatively have taken energetic steps to ensure that it could be done in safety. If Humphries had taken such action, in all probability Mr Gray's accident would have been avoided. The matter does not rest there, however, because on my findings Mr Lewis was informed at the meeting on 12 December that Mr Butler was considering the external option for routing the new cable. He therefore had actual knowledge that FAFS were contemplating the possibility of work which would require their employees to go out on the roof. Again, energetic steps should have been taken to prevent that happening, at all events until a safe system for doing the work had been devised.
  44. For Humphries, Mr Porter referred the court to the decision of the Court of Appeal in Makepeace v Evans Brothers (Reading) (a firm) and another [2000] BLR 287 CA. That is one of a number of cases which, amongst other things, go to establish the proposition that there is in general no duty of close supervision which requires a main contractor to stand over the employees of a subcontractor so as to satisfy himself that the subcontract work is being done in a safe manner; that duty, if it exists at all, is the duty of the employer only. However I regard those cases as being no more than examples of particular situations where, on the facts, the court has declined to find that a duty of care existed or, if it did, that it was breached.
  45. So far as the present case is concerned I conclude that for the reasons given, and subject to the indemnity argument to which I will come later, Humphries is liable to contribute towards the damages and costs payable to the claimant.
  46. I turn then to consider the position of Thistle. It is clear that a building owner is not normally, in the absence of special circumstances, expected to exercise supervision over the activities of an apparently competent contractor or subcontractor. That proposition is firmly established by Ferguson v Welsh and others [1987] 1 WLR 1553 HL and has been followed in subsequent cases such as McCook v Lobo [2003] ICR 89 CA.
  47. Mr Ford for FAFS wisely does not attempt to challenge the correctness of those decisions. His case against Thistle is based on special knowledge possessed by Thistle but not by any other party. He submits that the management of Thistle were the only persons who knew that the roof outside the hotel was owned by Railtrack, and that persons were not allowed to go on to the roof for any purpose save in accordance with Railtrack's permit to work system. Once Thistle learned at the meeting on 12 December that FAFS were contemplating work which would require access to the roof, they should in Mr Ford's submission have put an immediate embargo on the carrying out of such work until the permission of Railtrack had been obtained. If this had been done, he says, the likelihood is that either the third option would have been abandoned or any external work would have been carried out in accordance with the permit to work system. In either case Mr Gray's accident would probably have been avoided.
  48. In Ferguson v Welsh at 1560H Lord Keith said:
  49. "It would not ordinarily be reasonable to expect an occupier of premises having engaged a contractor whom he has reasonable grounds for regarding as competent, to supervise the contractor's activities in order to ensure that he was discharging his duty to his employees to observe a safe system of work. In special circumstances, on the other hand, where the occupier knows or has reason to suspect that the contractor is using an unsafe system of work, it might well be reasonable for the occupier to take steps to see that the system was made safe."

  50. Lord Oliver (at 1562E) agreed with these remarks. He inclined to think that in such a case the liability would be that of a joint tortfeasor rather than an occupier.
  51. Did such special circumstances exist in this case? In my view they did. Thistle either knew or ought to have known that FAFS' employees had been in the habit of going out on to the roof for repairs to the system over the past quarter .of a century. So far as is known those employees had never been reproved or told not to go there without the permission of Railtrack or its predecessors. On 12 December Thistle were told that FAFS were contemplating the possibility of work which would require further access to the roof. Their case is of course that Mr Butler was instructed unequivocally to abandon the external option, but I have found earlier that they failed to make that instruction clear and Mr Butler was left under the impression that he could, if he chose, route the cable externally. In my view Thistle owed a duty to FAFS and their employees to make the true position plain beyond any doubt and that they failed, on my findings, to do. In my judgment this failure was negligent conduct on their part and contributed in some measure to the death of Mr Gray.
  52. I conclude therefore that Thistle are also liable to contribute towards the damages and costs payable to the claimant.
  53. The Contractual Indemnity

  54. The contract between Humphries and FAFS contained the following provisions:
  55. • "The Sub-Contractor will diligently and safely carry out the works to a high quality and in any event to the reasonable satisfaction of the company within the period specified and in conformity with all reasonable directions of EH Humphries (Norton) Ltd."

    • "The Sub-Contractor will indemnify EH Humphries (Norton) Ltd against any loss damage or claim arising from the Sub-Contractor's failure to complete the work in a proper and workmanlike manner within the period and in addition shall indemnify EH Humphries (Norton) Ltd in respect of any liability or costs that the company incurs as a direct result of breach of any terms of this order."

    • "The sub-Contractor warrants…..2. That it will comply with the Company's Health and Safety policy full details of which the SubContractor acknowledges to have received prior to the date hereof."

  56. The argument for Humphries is that by allowing Mr Gray to go out onto the roof without adequate safeguards FAFS were in breach of their agreement because they:
  57. i) failed to carry out the works safely; and

    ii) failed to comply with Humphries' health and safety policy.

  58. Humphries claim that FAFS would accordingly be liable to indemnify them against any claim brought against them by the claimant, and therefore FAFS cannot require them to make any contribution towards the damages and costs payable.
  59. The question which arises is whether the language used suffices to make FAFS liable to indemnify Humphries not only against any liability arising from the negligence of FAFS but also against any liability occasioned by Humphries' own negligence or breach of statutory duty. In my judgment the language used comes nowhere near achieving this result.
  60. It is only necessary to consider the case in negligence, since the same considerations would apply in relation to any breach of statutory duty. In Canada Steamship Lines v The King [1952] AC 192 at 208, Lord Morton stated the law applicable in a situation where a party to a contract seeks to exclude liability for his own negligence in three well known propositions which I need not repeat here. There is no express reference to negligence in the terms and conditions, so Lord Morton's first proposition cannot possibly apply. The second proposition is that if there is no express reference to negligence the court must consider whether the words used are wide enough, in their ordinary meaning, to cover negligence on the part of Humphries' employees. Any ambiguity in the words used must be resolved against Humphries.
  61. In my judgment the argument for Humphries fails at this point. There are two indemnities which are provided. By the first, FAFS undertakes to indemnify Humphries against any loss etc arising from FAFS' failure to complete the work on time and in a proper and workmanlike manner. This clearly can only refer to a breach of agreement by FAFS. By the second indemnity, FAFS agrees to indemnify Humphries in respect of any liability it incurs "as a direct result of breach of any terms of this order [i.e. this agreement]". As a matter of ordinary construction of the words used this must also mean, in my view, a breach of any terms of the agreement by FAFS, not by Humphries. This construction is confirmed by the warranty given by FAFS that it will insure against any liability "which it may incur for injury to or death of any person as a result of his [i.e. its] actions". If FAFS were considered to be liable for any injury or death arising from the actions of Humphries or their employees, then one would have expected a provision requiring FAFS to insure against that risk as well.
  62. Even if my construction of the language used is wrong, there must on any view at least be some considerable ambiguity, and in such a case the words will be construed in a manner favourable to FAFS and against the construction urged by Humphries (see Smith v South Wales Switchgear [1978] 1 WLR 165, per Viscount Dilhorne at 168E).
  63. My conclusion is that FAFS are not liable to indemnify Humphries against liability to the claimant in respect of their own negligence or breach of statutory duty. In the circumstances there is no need to consider Lord Morton's third proposition.
  64. Convictions for Breach of the Health and Safety Legislation

    51. In support of their claim for contribution FAFS also sought to rely on the fact that after the accident Humphries and Thistle each pleaded guilty in the magistrates' court on 19 August 2003 to breaches of the Health and Safety legislation. Thistle pleaded guilty to an offence under section 3 of the Health and Safety at Work Act 1974 (failing to conduct their undertaking in such a way that persons not in their employment were not thereby exposed to risks to their health and safety); and both parties pleaded guilty to an offence under regulation 11 of the Management of Health and Safety at Work Regulations 1999 (failing to cooperate and coordinate working arrangements with other employers sharing the workplace).

    52. In my view it is not permissible to place reliance on these convictions for any purpose in civil proceedings. Section 47(1)(a) of the Act and regulation 22(1) of the regulations each provide that breaches of the duties imposed are not to confer a right of action in any civil proceedings. Furthermore, I am told that Humphries pleaded guilty on the express basis that their failure to comply with the relevant provisions was not in any way causative of Mr Gray's death. That fact alone illustrates to my mind the danger - and potential unfairness - of relying on the convictions as supportive evidence in these proceedings. In any event some of the duties imposed by statute would appear to go far beyond any duty owed by a main contractor to the employee of a subcontractor at common law, at least in its present state of development. I note that this view accords with the view taken by HH Judge Playford in the unreported case of Hood v Mitie Property Services Ltd and Royal Mail Group plc. I decline therefore to place any reliance on these convictions for the purpose of establishing liability on the part of Humphries or Thistle for the death of Mr Gray.


  65. It was suggested on behalf of Humphries that even if they were technically in breach of duty toward Mr Gray in one or more respects, nevertheless it would not be 'just and equitable" under s2(1) of the Civil Liability (Contribution) Act 1978 to order them to contribute in any degree towards the costs and damages payable. I am afraid I cannot agree; in my view Humphries were significantly more to blame than Thistle for Mr Gray's accident, because they were the main contractors charged with the duty of overall supervision of the works. Thistle on the other hand, as the building owners, were entitled to look to Humphries to see that the works were safely carried out.
  66. I have already stated my view that FAFS were primarily to blame for what happened. My only concern has been whether they were more to blame than the 50% which is conceded on their behalf. If they had been a larger organisation with more personnel at head office I would probably have allocated a larger share of the blame to them. Bearing in mind however the relative size of the parties, I believe it would be just and equitable that they should bear 50% of the blame, the remaining 50% being shared by the others. Since I take the view that Humphries were significantly more to blame than Thistle, I allocate 30% of the remaining share of blame to Humphries and 20% to Thistle. In the event, therefore, I accept the proportions suggested by Mr Ford.
  67. This judgment will be formally handed down at the Mayor's and City of London Court on a date which will be notified to the parties. One hour will be allocated for the purpose. The parties should notify the court if they consider that submissions on costs or any other matters will be likely to exceed the time allowed.

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