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High Court of Ireland Decisions |
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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Williams v T.P. Wallace Construction Ltd. & Ors [2001] IEHC 231 (23 November 2001) URL: http://www.bailii.org/ie/cases/IEHC/2001/231.html Cite as: [2001] IEHC 231 |
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THE HIGH COURT
1998 No. 12433p
BETWEEN
KEITH WILLIAMS
PLAINTIFF
AND
T.P. WALLACE CONSTRUCTION LIMITED
AND
CRICKLEY ROOFING LIMITED
DEFENDANTS
AND BY ORDER
LINDAB LIMITED
THIRD PARTY
Judgment of Mr. Justice Frederick Morris delivered on the 23rd day of November 2001
The Plaintiff in this case is a 43 year old married man and is the General Manager of Lindab Limited, the Third Party in these proceedings. He resides in England.
The First Named Defendant is a limited liability company and are well known building contractors. The Second Named Defendant is a limited company and are roofing contractors. The Notice Party is a limited company that distributes building material and in particular a type of guttering.
In the year 1998 the First Named Defendants were engaged in constructing a shopping centre in Bray and were the main contractors on site. The Second Named Defendants were roofing contractors and sub-contractors on the job. The patent guttering distributed by Lindab Limited had been specified by the Architect for use on the job. Lindab Limited supplied the guttering to the Irish market through Heiton & McFerran Limited, a well known builders providers company.
Difficulties had emerged during the fitting of the guttering on the building site and as a consequence the Plaintiff at the request of Heiton McFerran agreed to look into the problem and for that purpose on the 7th April 1998 flew to Dublin with a business associate, Mr. Neil Cooke. They were met at Dublin airport by Mr. Stuart McConnell, the Assistant Manager of Heiton McFerran and brought to the building site in Bray. It was anticipated and expected that the Architect on site would have been present when the party arrived at approximately 10 o'clock at the building site. In fact he was not.
On arrival at the building site the builders tea break was on. The party went to the canteen, knocked on the window and spoke to Mr. Maher who was the site foreman. I am satisfied that in the conversation that followed Mr. McConnell told Mr. Maher that he and the other two gentlemen would go for a cup of coffee and return later on when the tea break was over. It was obvious to Mr. McConnell that the workmen on site were having their morning tea.
Mr. Williams gave evidence of an exchange between an and Mr. Maher relating to the need to sign the site book or wear a hard hat. He says that he was told that they need not do so. In my view there is no relevance to this exchange.
The party left the canteen with the intention of proceeding back towards the main road. What happened thereafter is not altogether clear. Mr. Williams says that as they walked back towards the main road they made contact with a workman and asked him was it possible to get on to the flat roof to gain access to the gutter and this workman said that it was. Another version of that occurrence is given by Mr. McConnell. He says that the group was approached by a man who asked them "Are you here to see about the gutter." They replied that they were. The man in question asked them if they wanted to see the guttering and they said that they did and that he preceded them up the stairs to the roof.
Having gained access to the roof Mr. Cooke and Mr. McConnell engaged in conversation and Mr. Williams saw a ladder, climbed it on to scaffolding, attempted to inspect the guttering, found he could not because he said the scaffolding was incomplete, decided to descend the ladder but when he returned to the ladder it slipped away from the scaffolding because it was not tied or footed and he fell and suffered personal injuries.
He claims damages for the personal injuries, loss and damage which he suffered on the basis of common law negligence or breach of statutory duty.
In my view it is clear that the duty owed to Mr. Williams must be identified by reference to his status on site at the relevant time. It is submitted by Counsel on behalf of the Defendants that at the relevant time Mr. Williams was on the building site as a trespasser, which is defined in the Occupational Liabilities Act, 1995 as meaning "an entrant other than a recreational user or visitor." It is submitted that in these circumstances the only duty owed to the Plaintiff by the First Named Defendant was, as is provided in Section 4 of the Act:
"(a) Not to injure the person or damage the property of the person intentionally and
(b) Not to act with reckless disregard for the person or the property of the person."
It is submitted that, as occurred in this case, to leave a ladder leaning against scaffolding but untied is not to act with reckless disregard for the person or his property.
On behalf of the Plaintiff it is submitted that he was on site as a visitor. The term "visitor" is defined by the 1995 Act as
An entrant, other than a recreational user, who is present on the premises at the invitation or with the permission of the occupier or any other entrant specified in paragraph (a), (b) or (c) of the definition of "recreational user."
It is further submitted on the Plaintiffs behalf that as he was invited on to the site by the workman in the circumstances which are outlined above and since he was therefore a visitor, he was owed the duty of care referred to in paragraph (3) of the 1995 Act. That duty of care is the "common law duty of care" which is defined as meaning an obligation to "take such care as is reasonable in all the circumstances having regard to the care which the visitor may reasonably be expected to take for his or her own safety and if the visitor is on the premises in the company of another person the extent of the supervision and control the latter person may reasonably expected to exercise over the visitor's activities." To ensure that the visitor to the premises does not suffer injury or damage by reason of any danger existing thereon.
It is further submitted on behalf of the Plaintiff that irrespective of the status of the Plaintiff on site at the relevant time section (8) of the Safety Health and Welfare at Work Act, 1989 imposes a duty on the occupiers of the site, because Mr. Williams was on the site "for the purpose of carrying out work" to
take such measures as is reasonable for a person in his position to take to ensure as far as reasonably practical that the place of work all means of access thereto and egress there from available for use by persons using the place of work, and any article or substance in the place of work is or are safe and without risk to health.
I turn first to consider the status of Mr. Williams on the site at the relevant time.
Even allowing for the fact that this incident occurred over three years ago I am struck by the lack of harmony between the accounts which were given by Mr. Williams and the two other persons in his group as to the circumstances in which they came to be on the roof. I find it quite inconceivable that a workman on site would
(a) be working during the tea break (even though I do accept that Mr. Maher said that in the boom times that existed in 1998 it occasionally happened) but that he would
(b) identify the group as the persons who had come in connection with the faulty guttering and
(c) take it upon himself to escort them on to the flat roof for the purpose of Mr. Williams climbing on the scaffolding to carry out his inspection.
I cannot believe that a workman would behave in such a busy body way. I do not believe that the party came to be on the roof in the manner described on behalf of the Plaintiff.
It is not alone the unlikely nature of this part of the story told by the Plaintiffs witnesses. There is also the contradiction and conflict between the stories told by Mr. Cooke and Mr. McConnell of what transpired later on. Having brought Mr. Williams to hospital it is said that they went back to the building site as a "courtesy visit" but were as a result of the visit able to glean information which would be of relevance and importance for Mr. Williams in his litigation. To instance but one stark contrast between the two accounts. Mr. Cooke says that when he returned with Mr. McConnell he was able to make his observations from the road and that he did not go back on site. Mr. McConnell on the other hand says that they went back up on the flat roof and made the observations of the ladder from there.
I approach the evidence of these three gentlemen on the basis that the Plaintiff is a long term business associate of Mr. McConnell and was at the relevant time employed by the same company as Mr. Cooke. I am unable to accept their evidence on their account of how they came to be on the roof as being at the invitation of the workman or anybody else. I have not been satisfied that the Plaintiff is entitled to be regarded at law as a visitor within the meaning of the Occupiers Liability Act, 1995.
That being so the standard of care imposed upon the First Named Defendant was not to injure the Plaintiff intentionally and not to act with reckless disregard for his person. I am satisfied that no case has been made out that the First Named Defendant acted in such a reckless way and therefore the Plaintiff is not entitled to any relief under the Occupiers Liability Act.
I now pass to consider the duty of care owed to the Plaintiff under the Safety Health and Welfare at Work Act, 1989.
This Act imposes duties upon employers towards employees but in addition pursuant to Section (8) imposes duties to persons other than employees. Section (8) provides as follows:
"(1) This section has effect for imposing on persons duties in relation to those who are not their employees but who are either the employees of other persons or are self employed and who for the purposes of carrying out work use a non domestic place of work made available to them or in which they may for the purpose of carrying out work use any article or substance provided for their use and it applies to places of work so made available and other non domestic places of work used in connection with them. "
There is no doubt that the Plaintiff in this case was a person who was not the employee of either Defendant but who was an employee of another person namely Lindab Limited. There is no doubt that the building site in question was a non domestic place of work. There is however, in my view, a third element that the Plaintiff must establish in order to avail of rights under Section (8) and that is that he must be carrying out work using a non domestic place of work "made available to him ". In my view this clearly envisages something far more than the Plaintiff unilaterally deciding to enter on to the site without the knowledge of Mr. Maher. I am satisfied that there is no evidence which establishes that the premises was "made available to the Plaintiff" and accordingly I hold that he is not entitled to any rights under Section (8).
For the purposes of clarification I should make it clear that I accept the evidence of Mr. Tenneson that there is a responsibility on the main contractor if a ladder is allowed to be left unattended and unsecured leaning against a scaffolding and if a visitor as defined in the 1995 Act uses the ladder and suffers personal injuries as a result of a fall. However, not being satisfied that the Plaintiff was a visitor within the terms of the Act and not being satisfied that the Defendant acted in a reckless way the Plaintiff is, in my view, not entitled to succeed in this action.
That being so no question of contribution or indemnity arises insofar as the third party is concerned.
