In dispute was whether the contractor permitted the sub-contractor to use the counter as a platform to stand on in order to paint ceiling tiles. The Court found on the balance of probabilities that either explicit or implicit authorisation was given by the contractor to carry out the work in the manner the sub-contractor saw fit, to include standing on the counter if the sub-contractor considered it necessary.

The Court then looked at whether the contractor observed its duties under the Safety, Health and Welfare at Work Act 2005 (the “2005 Act”) and, notably, whether it observed its duties as Project Supervisor Construction Stage under the Safety Health and Welfare at Work (Construction) Regulations 2013 (the “Regulations”).

The Court stated that the primary responsibility for ensuring that the design and construction of the project is conducted in a safe manner lies with the Project Supervisor who is responsible for composing a safety plan which must address the risks to safety, health and welfare of persons at work. Adjustments must be made to the plan to take account of any danger in the work process, and the Project Supervisor must coordinate the activities of contractors and make arrangements for checking the implementation of safe procedures.

The Court found that the safety and health plan and the method statement prepared by the contractor were deficient in their consideration of the sub-contractor’s part in the construction process. Whilst the sub-contractor was responsible for the methodology adopted for carrying out the painting works, the former document was somewhat generic. The method statement, while more specific, omitted mention of painting, though it did refer, in the section entitled “ceiling work”, to the need to use a podium ladder.

The Court commented that a method statement which included ceiling painting and gave directions as to use of equipment and requirements for covering units or furniture, and which accurately set out the sequence in which the works were to be carried out, would have left both parties in no doubt as to what was expected of them. The problems presented by the early installation of the counter would have brought the methodology into strong focus and resulted in a more targeted and specific conversation between the parties before commencement of the works. Where the safety and health plan and method statement are deficient it was, in the Court’s view, all the more incumbent on the Project Supervisor to ensure that instructions addressing the deficiencies are crystal clear and understood by the parties to whom they are addressed.

This led the Court to conclude that the contractor was negligent and in breach of statutory duty, contravening section 12 of the 2005 Act (namely, for failing to ensure, so far as reasonably practicable, the safety of third parties) and various of the Regulations.  In particular, the Court did not consider that the contractor took “all appropriate precautions, so far as is reasonably practicable, to ensure that the site is safe and without risk of injury to the safety, health and welfare of persons at work” as required by Regulation 30.

In finding that the sub-contractor had been contributorily negligent, the Court accepted that there was a “level of trust” in the subcontractor, who performed to the standard required in many similar units in the past. The sub-contractor regarded use of the counter as the easy and obvious solution to getting access to a portion of the ceiling. He regarded the use of an available scissors lift as involving an unacceptable risk of damage to the counter and probably decided that use of the counter for work that would only take minutes was a preferable option, particularly as he considered this had been authorised.

However, the Court found this had been inherently unsafe: he should have requested a podium ladder; if one was not provided, he should have satisfied himself by every precaution that the counter was a safe surface on which to stand; in the event of not being so satisfied, he should have refused to mount the counter and demanded an alternative safe methodology. According to the Court, his failure to provide a method statement setting out his own requirements contributed to the somewhat lax attitude to safety that characterised the dealings between the parties on this project.

This judgment highlights the importance of ongoing vigilance around statutory roles and duties throughout the works, as well as some of the risks that can arise from changes to the works schedule.  The Court summed up the challenge when it stated:

Ideally, any amendments to a method statement, such as those necessitated by a counter being installed at an earlier stage of the process than envisaged, would be duly agreed and minuted so that the safety plan and method statement could be amended accordingly. While this may be difficult to implement in a dynamic and fast-moving construction process where there is a succession of contractors performing different tasks in sequence, a failure to pay attention to and record changes which have safety implications causes exactly the sort of difficulties for the project supervisor in justifying its actions as the defendant has encountered in the present proceedings.