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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Mason v Satelcom Ltd & Ors [2007] EWHC 2540 (QB) (24 July 2007) URL: http://www.bailii.org/ew/cases/EWHC/QB/2007/2540.html Cite as: [2007] EWHC 2540 (QB)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Claim No.HQ05X02516 Royal Courts of Justice Strand, London, WC2A 2LL
		24th July 2007.

His Honour Judge Reddihough:

1. The claims before the court arise out of an accident in which the Claimant, Adam Mason, was involved on 28^th August, 2002, during the course of his employment as a field service engineer. At that time he was employed by Satelcom Limited and on 1^st June, 2004, his employment was transferred under the Transfer of Undertakings (Protection of Employment) Regulations, 1981, to an associated company, Intact Networks Limited. At the time of the accident the London Borough of Redbridge was a customer of Satelcom Limited pursuant to a contract which had been made between it and a predecessor company of Satelcom Limited, whereby Satelcom Limited provided, installed and maintained data switching equipment at various council sites in that London Borough. Under the contract Satelcom Limited was responsible for the provision of certain on site maintenance and also software and technical support.
2. In May 2002, the London Borough of Redbridge took an underlease of some office space at premises known as Redbridge Foyer, Sylvan Road, Ilford. In that office space at the material time the London Borough of Redbridge operated a service known as Ilfomation, which was essentially an information service for young people. East Homes Limited, a housing association, was then the owner of Redbridge Foyer, and its subsidiary company, East Potential Limited, was the managing agent of the premises.
3. One of the rooms in the Redbridge Foyer premises was a communications (or server) room where computer and information technology equipment was located. Although this room was not included in the London Borough of Redbridge's lease, it had been permitted by the owners to have installed there a cabinet in which was situated a piece of equipment known as a Megapac (or Megabox). This is a form of router which effected communications between Ilfomation and the rest of the London Borough of Redbridge's information technology systems. It appears that the remainder of the equipment in the server room was the property of the owners or their managing agents. The Megapac was one of the pieces of equipment subject to the maintenance provisions in the contract between Satelcom Limited and the London Borough of Redbridge.
4. The Claimant's accident on 28^th August, 2002, occurred in this server room at the Redbridge Foyer when he was in the course of replacing a card (a form of circuit board) in the Megapac. A fault had apparently developed in the Megapac the previous day and the London Borough of Redbridge contacted Satelcom about it and the Claimant was sent there to replace the card. The cabinet housing the Megapac was on a wall in the server room at a height of 244 cm. (about 8 feet) from the floor. The Claimant asserts he was using a ladder, which was in the room, to gain access to the cabinet and Megapac and in the course of his work thereon he lost his balance and fell from the ladder, landing on his feet but sustaining an injury to his spine.
5. Initially, the Claimant directed his claim, which is for damages for personal injury and loss resulting from the accident, at Satelcom Limited/Intact Networks Limited as his employers, the London Borough of Redbridge/Ilfomation, and East Homes Limited and East Potential Limited. He subsequently discontinued his claim against all parties save his employers, Satelcom Limited and Intact Networks Limited, who are now the First and Second Defendants. It is agreed that, for the purposes of this claim, those Defendants can be treated as one and the same and I refer to them hereafter as the Defendants. The Claimant alleges that his accident was caused by the breach of statutory duty and/or the negligence of the Defendants, their servants or agents.
6. The discontinuance of the claim against the other parties by the Claimant led to the Defendants bringing Part 20 additional claims against the London Borough of Redbridge, East Potential Limited and East Homes Limited, who became Third, Fourth and Fifth Parties respectively. It is agreed that, for the purposes of these claims, the Fourth and Fifth Parties can be considered as one and the same and I will refer to them hereafter jointly as East where appropriate. The London Borough of Redbridge I will refer to as Redbridge. By way of these Part 20 claims, the Defendants, in the event that they are adjudged liable to the Claimant, claim a contribution in respect of such liability from Redbridge and East on the basis that the Claimant's accident was caused by the breach of statutory duty and/or negligence of those parties.
7. By the Order of Master Yoxall of 20^th February, 2007, it was ordered that the issue of the Defendants' liability to the Claimant, the extent of that liability, and the liability of Redbridge and East to the Defendants in respect of the Part 20 claims, be tried as preliminary issues. It is those preliminary issues which I have to determine.
8. On behalf of the Claimant, the evidence consisted of witness statements and oral evidence from the Claimant and from Mr. Matthew Johnson. At the conclusion of the Claimant's case, the Defendants, Redbridge and East all indicated that they did not propose to call any evidence. However, pursuant to Part 32.5(5), the Defendants put in as hearsay evidence various witness statements which had been served on behalf of Redbridge and East respectively. These were two witness statements from Mr. Peter Freeman and one from Mr. Scott Howell served by Redbridge, and a statement from Ms. Tracey McGurl served by East. Of course, insofar as the Defendants rely upon those statements as hearsay evidence, I bear in mind when considering them that the makers of them were not exposed to any cross-examination. Additionally, I was referred to various documents disclosed by the parties.
9. The Claimant, who is now 40 years old, confirmed in his evidence before me the contents of his two witness statements, subject to a couple of matters which he corrected. In his first witness statement he indicated that he had been employed by the Defendants as a field service engineer since December 1999. His job involved the installation, maintenance and repair of computer network equipment. He would normally carry out such work at the premises of the Defendants' customers. He said that he had been given no specific training by the Defendants in respect of issues involving health and safety, manual handling, etc.
10. The Claimant described how he came to attend the Redbridge Foyer premises on 28^th August, 2002, in order to replace a card in the Megapac (to which I have already referred), following the reporting of a fault in the system by Redbridge the previous day. The Claimant thought that he had been requested to attend there by one of the Defendants' account managers, Mr. Matt Johnson. In fact, Mr. Johnson did not recall making this request. The Claimant described what the job would involve, namely connecting a laptop to the service port of the Megapac to monitor its activity, disconnecting existing cables, unscrewing and removing the faulty card, inserting the new card, and reconnecting the cables. He thought that, prior to going to Redbridge Foyer, he had met up with Mr. Scott Howell of Redbridge's IT department at Redbridge's Clements Road premises in Ilford. Mr. Howell in his statement thought that any such contact with the Claimant had been on the telephone.
11. The Claimant went on to describe in his statement how, when he arrived at the Redbridge Foyer, a member of staff there took him to the room where the Megapac was situated and unlocked the room for him. The Claimant said he had never been to these premises before. When he entered the room, he could see that the cabinet in which the Megapac was located was positioned high on the wall at a height of 7 to 8 feet above the floor. In fact, it is now agreed between the parties that the cabinet was at a height of 244 cm. (that is, about 8 feet) from the floor. The Claimant stated that, on entering the room, he noticed that there was a wooden ladder leaning against the wall and he realised that he would need to use this to gain access to the cabinet. He said the ladder was not quite long enough to reach the cabinet and rested against the wall just below it. He thought that the ladder was approximately 60 cm. in height when resting against the wall. In his second witness statement and indeed in his oral evidence, the Claimant said that this was an error and should have read 60 inches, not 60 cm.
12. The work which the Claimant had to do would involve at some stage turning off Redbridge's computer and telephone systems, and the Claimant asserted that a time frame for this disconnection had been limited to 15 minutes and he thought that this was imposed by Redbridge. He went on to describe how the accident occurred. He said that to work on the Megapac inside the cabinet, he had to stand on the ladder, leaning his body outwards, then in, to reach inside the cabinet. He climbed up the ladder and managed to hold onto the cabinet with one hand and unscrew and remove the card with the other hand. The card he had to replace was a double card which slotted into two grooves in the Megapac. He said that this type of card is more difficult to change than a single card and even more so with one hand. It was as he was on the ladder inserting the new card using two hands when he lost his balance and fell from the ladder, landing standing up, and immediately felt pain in his lower back and left leg. He managed to climb back up the ladder and check that the card had been inserted correctly as he was conscious that he only had 15 minutes to repair the fault.
13. Prior to carrying out the job, he had spoken to a member of staff in a nearby office to inform her that the telephone lines would be disconnected and after the job he spoke to the same person and asked her to check that the telephones were now working again.
14. In his second witness statement, as I have mentioned, the Claimant corrected the mistaken reference to the ladder being 60 cm. long. He also said that the ladder was so situated below the cabinet that it was obvious to him that it had been used by another person to gain access to the cabinet. He considered it had been left in that position to provide future access and that he did not alter the position of the ladder in any way. He said the ladder was wooden and relatively sturdy and that he used it several times during the job and was given no reason to consider the ladder unsafe prior to his accident.
15. In his oral evidence, the Claimant confirmed the position of the cabinet on the wall as shown in various photographs of the server room. Unfortunately, it appears that by the time the Claimant's claim was made, the ladder concerned in the accident was no longer at the premises. The Claimant in his evidence said that he thought he had to climb beyond half way up the ladder to gain access to the cabinet. He thought the rungs on the ladder were round wooden type dowels. When cross-examined, the Claimant agreed that, by the time his employment ended in September 2004, he had had some 15 years in the industry. He considered that he had become skilled in his job and in deciding which tools and equipment were required for a job, which normally had to be carried out at the premises of customers. He said that normally he would have to ask the customer where the relevant equipment was situated and he would then have to work out how best to get at it. He had to satisfy himself that he could get to the relevant equipment, and if it was literally impossible to reach something he would have to call back to base. He agreed that he would have to work out how to get up to a cabinet and said, "We were expected to go to the site and get the job done in whatever way we could." He agreed that he had to use his initiative.
16. He described the various tools and the laptop which he used for the job in question. He said he was never provided with a portable stepladder by the Defendants. He agreed on occasions he would purchase small tools and be reimbursed the cost by the Defendants. He said that it did happen on various occasions that he would use steps provided by the customer at the site. He agreed that he was provided with a mobile phone with which he could contact his employers.
17. He agreed by reference to a list which was produced that there were a considerable number of Redbridge's premises which he might have to visit in connection with his work. He confirmed his recollection that, prior to going to the accident site, he had seen Mr. Scott Howell of Redbridge at their Clements Road site. He said that when he had jobs for Redbridge, he normally went to that site first thing in the morning. The Claimant said that, so far as he remembered, when he arrived at the Redbridge Foyer someone from reception showed him to the server room and unlocked the door. He did not really think about who that person worked for and just thought that everyone at those premises worked for the Council. Once in the room, nothing led him to think that he was unable to carry out the job or needed to get more equipment.
18. He agreed that it was obvious he required a ladder to get to the cabinet but that the ladder in question was already situated below the cabinet and he simply used it in the position it was in. As he had said in his witness statement, he said that it looked to him as though the ladder was there to give access to the cabinet. He said that there were some boxes of stationery at the base of the ladder effectively footing it. He thought that the ladder was very sturdy. He maintained that he did not prop the ladder against the wall as was recorded in the account said to have been given by him to the Defendants' medical consultant.
19. The Claimant initially maintained, as he stated in his witness statement, that he felt under pressure to complete the job within the 15 minutes which he thought had been imposed by someone at Redbridge. However, he later conceded in his evidence that the downtime of 15 minutes was easily enough to complete that part of the job required to be done during that period. He said that part of the job would take at most 7 to 8 minutes even if dealing with the screws in the Megapac was fiddly.
20. The Claimant said that he thought if he had refused to do the job because it was not safe, that would not have gone down very well with his employers because they expected their engineers to get on with the job. He said if the ladder and no other suitable equipment had been in the room, he would have contacted Mr. Johnson and told him of the position. Another alternative would have been to ask somebody at the premises for a ladder. When being questioned about the point at which the accident occurred, the Claimant said that it was at that point when inserting the new card that the job became more difficult, as he had to use two hands and was unable to carry it out with one hand as he had hoped.
21. He confirmed that he had never received any training from the Defendants in working at height or received any instruction from them about gaining safe access to a workplace. He agreed when cross-examined on behalf of East that he had never asked anyone at the premises if he could use the ladder or for any alternative means of gaining access to the Megapac. Because the ladder was sturdy and well wedged in, he said he was caused no concern during the first part of the job. He had not thought to himself that the job was going to become tricky when he came to put in the double card.
22. Mr. Matt Johnson worked for the Defendants for about 7 or 8 years until 2004 as an account manager. He said in his witness statement that one of the accounts which he managed was that of Redbridge. He remembered one occasion when he had attended at the site where the Claimant's accident occurred. He had gone there to deal with a fault. When he went in the server room, there were some wooden steps which he used to gain access to the same cabinet as that on which the Claimant had to work. He assumed that these wooden steps belonged to the owners of the building.
23. So far as the Claimant's accident was concerned, he did not specifically remember sending the Claimant to that job. When working for the Defendants, he never recalled carrying out an assessment of any job or obtaining information in respect of what equipment may be needed for an engineer properly to carry out a job.
24. In his oral evidence before me, Mr. Johnson confirmed that the Defendants' engineers were qualified technically by experience if not by paper qualification. He described the various ways in which an engineer might be instructed to attend a particular job at a customer's premises. He agreed that the documentation relating to the fault which the Claimant had to deal with showed that it had been temporarily remedied on 27^th August, 2002, by Redbridge rebooting the system and so it was not a very urgent job when the Claimant attended the next day.
25. Mr. Johnson agreed when cross-examined on behalf of the Defendants that it was not possible to send somebody ahead to look at a location where a piece of equipment was installed. The attending engineer had to assess how the job should be done. If, for example, a large photocopier was obstructing access to equipment, he would expect an engineer to ask someone to move it or to assist him in moving it. He agreed that engineers would have to display initiative.
26. The steps which he used in the server room he thought would not have been left there by the Defendants, but would have been left by Redbridge or the person responsible for the building. He said he had to ask himself whether or not the steps would enable him to do the job and whether they were safe. He said that if there had been no steps there, he would have gone to ask reception if there was a caretaker in the building and ask him if there was a ladder or steps he could use. He would have expected a field service engineer such as the Claimant to do the same. If there were no steps available on the premises, he probably would have contacted Redbridge to see if they could provide steps or a ladder, and if not he probably would have purchased a step ladder locally. Again, he would have expected a field service engineer to do the same. If the Claimant had telephoned him and said there were no suitable means of access to the cabinet, he would probably have told him to purchase some steps locally. In relation to his one visit previously to the premises, he said there was nothing unusual at the site to cause him to put down a marker that there might be a problem there for the Defendants in the future. If, in fact, a caretaker had provided a ladder for the job, he would not have dreamt of asking the caretaker whether it was suitable or not. He agreed that the equipment in the cabinet would probably have been installed by an engineer from the Defendants. The cabinet and the cabling and power for it would have been installed by Redbridge's contractors.
27. I now refer to the relevant parts of the witness statements served by Redbridge or East which the Defendants put in as hearsay evidence. Mr. Peter Freeman was employed by Redbridge as network services team leader and as part of that role he was the client relationship manager in relation to the Defendants. He confirmed that, pursuant to the contractual arrangements between Redbridge and the Defendants, the Defendants were responsible for on site maintenance in relation to the Megapac at the Redbridge Foyer. He confirmed the history of the fault developing in the equipment on 27^th August, 2002, and how it was reported to the Defendants. He said that as far as he was aware Redbridge did not have keys to the server room at the Redbridge Foyer and that access to it was controlled by East. He recalled seeing a ladder at one stage in that room. According to him, it was an old wooden ladder which had been sawn in half very roughly and he assumed that builders had done that. He further assumed it had simply been left in the room by builders. He assumed that because it was in that room it belonged to East. He said that the ladder had paint and bits of rubble on it and its legs were uneven. He stated he would not use it himself as he did not consider it to be safe. In a second statement, Mr. Freeman clarified that he thought he had seen that ladder when he carried out a survey of the site in May 2002 when the building was still going up. He had determined that the most suitable location for the cabinet to house the Megapac was the server room and that the building manager of the building had agreed that Redbridge could locate it there. He said this was very much a gentlemen's agreement or understanding. The cabinet was located about 8 feet off the ground so as not to take up much of East's space, and also for health and safety reasons so that it did not create a hazard.
28. The statement from Mr. Scott Howell, who was employed as a network services technician by Redbridge, said that he did not recall the Claimant reporting his attendance to the fault at the Redbridge Foyer, but if he did he thought it would have been by way of a telephone call. He stated that he had been to the server room on a number of occasions and recalled that, at the time of the accident in 2002, there was a ladder within that room. He said it was made from wood and it looked as if it had been cut in half and had been left resting against a wall. It did not look to him to be in particularly good condition and he never would have thought to have used it.
29. The statement from Ms. Tracey McGurl, who is employed as East's housing manager, states that she had been based at the Redbridge Foyer since its construction at the end of 2001. She stated that only a small part of the building was leased to Redbridge, from which they ran Ilfomation. However, she stated that Redbridge and East shared the server room. She stated that she was not aware of there ever having been a ladder kept in the server room. In fact, she said it is company policy not to use ladders at work, precisely so as to avoid people having accidents on them. She stated she had no idea where the Claimant would have got a ladder from and that she presumed when she first heard about his claim that he was using his own ladder. She said that, as a general rule, East did not keep ladders in their stores at the premises and any attending workmen tend to bring their own ladders with them.
30. It is necessary to refer to some documentation disclosed by the Defendants. They disclosed codes of practice for working on customers' premises which were issued in July 1999. At the beginning of that document, the Defendants state: "As an organisation committed to the highest standards and quality products in our field, we are equally committed to those same standards in both our working practices and our adherence to health and safety issues on all of our customer sites." Within the document there is a section headed "Cable installation" and within that section there is reference to the use of ladders and stepladders at customer sites for such work. The Defendants also disclosed their health and safety policy, which is a detailed document. Within that document it was provided that managers within the company should ensure that safe systems of work are developed, implemented and monitored for effectiveness. In a section dealing with employees it was provided that the company will expect all employees to use the correct tools and equipment for the job, avoiding improvisation. In a section dealing with working at heights, which is defined as where a person could fall more than 2 metres, it was provided that the appropriate manager should take various steps to ensure that decisions were made at the pre-contract stage regarding conditions on site and the provision of equipment suitable for the job. This included choosing a safe method of getting to and from the work area and deciding what equipment is needed, ensuring that it was delivered on time to a prepared site and making sure that it was checked and in good condition. There was also provision in relation to the condition and placing of ladders.
31. Having set out the relevant parts of the evidence which was placed before me, I propose to set out what I consider are the appropriate findings of fact arising from that evidence, before I turn to the issues of liability which arise in this case. I found both the Claimant and Mr. Johnson to be careful witnesses doing their best to assist the Court in a straightforward manner. The Claimant in particular gave his evidence in an understated manner and in my judgment in no way sought to exaggerate or to be evasive. I accept the Claimant's evidence that he was instructed to carry out the job in question by Mr. Johnson, although the latter did not recall this. I also accept the Claimant's evidence that he went to Redbridge's Clements Road premises before going to the Redbridge Foyer, and that he probably saw Mr. Howell at Clements Road. I further accept the Claimant's account of what occurred when he arrived at the Redbridge Foyer and in particular that a member of staff there, who must have been an employee of East, had to unlock the server room for him. I entirely accept the Claimant's description of the server room, including the fact that the ladder was leaning against the wall below the cabinet in question. I find that the ladder was as described by the Claimant, a wooden ladder with round dowel type rungs and about 5 feet or 60 inches in height. I accept that the reference in the Claimant's original statement, which was repeated in subsequent documents, that the ladder was 60 cm. long was simply an error and should have read 60 inches. I reject any argument that this error casts any doubt on the Claimant's description of the ladder.
32. The ladder in itself I find was, as the Claimant said, reasonably sturdy and steady and that he carried out the initial part of the job without any untoward difficulty. I further accept that, by reason of the position of the ladder, the Claimant formed the view that it was for use to gain access to the cabinet. I also find that he did not move it in any way and simply used it in the position in which he found it. However, I do find that it must have been obvious to the Claimant that in fact the ladder was not of sufficient height to give proper access to the cabinet. This inevitably meant, as I find, that at times in working from the ladder, because of its angle and height in relation to the cabinet, he would have had to lean outwards from the ladder.
33. So far as the accident itself is concerned, I entirely accept the Claimant's account of it. Indeed, when cross-examined, he was not particularly challenged in relation to that account. I find that the accident occurred because in inserting the double card he had to use both hands and also lean outwards from the ladder. Undoubtedly, in my judgment, that caused him to lose his balance on the ladder and to come off it and land in the way he described.
34. I do find that Redbridge imposed a 15 minute limit on the time their system should be disconnected whilst the Claimant was carrying out this work. However, I reject any argument that this put the Claimant under undue pressure of time in carrying out the job. In the course of his evidence, he conceded, in my judgment, that for the work he actually had to carry out whilst the system was disconnected, 15 minutes was ample time and that part of the job would have taken him 7 or 8 minutes at most. Thus, pressure of time as I find is of no relevance to this accident.
35. In addition to the fact that the room was locked, I find that the only keys to it were in the possession of East. Insofar as Ms. McGurl's statement might suggest that there was no ladder in the server room at the material time, in the light of the other evidence I reject any such suggestion. In my judgment it is also a reasonable inference to draw from all of the evidence that East must have been aware of the presence of the ladder in the server room.
36. On balance, I accept that the ladder that Mr. Johnson said he used when he went to the server room was an A-frame stepladder and therefore cannot have been the same ladder involved in the Claimant's accident. I further accept, as stated in their witness statements, that Mr. Freeman and Mr. Howell had seen a wooden ladder in the server room when they had visited it. However, bearing in mind that they were not cross-examined on their statements and the discrepancies between their description of the ladder and the ladder involved in the accident as described by the Claimant, I cannot find on the balance of probabilities that they were describing the ladder involved in the accident. In that regard I particularly bear in mind that, in the interim period, there had been in the room the stepladder used by Mr. Johnson. However, I do find that what all of that evidence shows is that, at various times, there was in the server room a ladder of one description or another which a person might seek to use to gain access to the cabinet.
37. In relation to the Defendants, I find that they did not give the Claimant any specific training in health and safety matters or in the use of equipment such as ladders. The position was that they simply left it to their field service engineers to decide how to gain access to equipment and simply expected them to use their initiative. Furthermore, I find that they not only did not provide him with any stepladders to take to customers in the company car with which he was provided, but they gave him no instructions as to what he should do in relation to obtaining and using ladders or other equipment at such premises.
38. On the evidence, I find that the Defendants were responsible for the installation of the Megapac in the cabinet and so from that time onwards they were aware of the location of the cabinet and the fact that a ladder or similar equipment would be required to gain access to it. They would also, as I find, be aware of this fact by reason of the visit to the equipment by Mr. Johnson. It is plain to me on the evidence that the Defendants, contrary to anything that was contained in their health and safety documents, to which I have referred, did not carry out assessments of jobs to be performed at their customers' sites prior to an engineer being sent to such sites, and in particular this was so in relation to the site of the Claimant's accident.
39. As between Redbridge and East, I find that in relation to Redbridge's siting of the cabinet in the server room, there was a very informal agreement between them permitting Redbridge to do that and to have access to the room in relation to their equipment therein.
40. I now go on to consider the issues of liability as between the Claimant and the Defendants. The Claimant alleges that his accident was caused by the breach of statutory duty and/or the negligence of the Defendants as set out under Paragraph 2 of the Particulars of Claim. In summary, he alleges that there were breaches of the Workplace (Health, Safety and Welfare) Regulations, 1992, the Construction (Health, Safety and Welfare) Regulations, 1996, and the Provision and Use of Work Equipment Regulations, 1998. He asserts that the Defendants were negligent in failing to provide him with any safe and suitable equipment for gaining access to the cabinet; in causing or permitting him to use a ladder which was inadequate for the purpose for which it was required; failing to ascertain or heed the requirement for him to reach the cabinet; failing properly to instruct and/or supervise him; failing to warn him of the danger to which he was exposed; and failing to provide a safe place and/or system of work for him.
41. I propose to deal firstly with the alleged breaches of statutory duty. So far as the Construction (Health, Safety and Welfare) Regulations, 1996, are concerned, under Regulation 3 thereof, subject to specified exceptions, the Regulations apply "to and in relation to construction work carried out by a person at work." "Construction work" is defined within Regulation 2 of the Regulations and includes in sub-paragraph (e) of the definition: "The installation, commissioning, maintenance, repair or removal of … telecommunications, computer or similar services which are normally fixed within or to a structure." It is conceded by the Defendants, and I so find, that the work being carried out by the Claimant in the server room was construction work within the meaning of the Regulations in that it was the maintenance, repair or removal of telecommunications, computer or similar services which were fixed to the building.
42. The duty imposed upon the Defendants as the Claimant's employers under these Regulations is set out in Regulation 4(1) which provides: "Subject to Paragraph 5, it shall be the duty of every employer whose employees are carrying out construction work … to comply with the provisions of these Regulations insofar as they affect him or any person at work under his control or relate to matters which are under his control." It must therefore follow that that duty was imposed upon the Defendants regarding the work the Claimant was performing at the time of the accident.
43. The Claimant alleges that the Defendants failed to comply with the provisions of Regulation 5 and Regulation 6 of these Regulations, and were thereby in breach of them. Regulation 5(1) provides: "There shall, so far as is reasonably practicable, be suitable and sufficient safe access to and egress from every place of work … which access and egress shall be without risks to health and properly maintained." Regulation 5(2) provides: "Every place at 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." Regulation 6(1) provides: "Suitable and sufficient steps shall be taken to prevent so far as is reasonably practicable, any person falling."
44. The essence of the Claimant's allegations under these Regulations is that the ladder used by him in the server room was not a suitable and sufficient safe access to the cabinet in question and that a suitable and safe ladder or stepladder or other such equipment should have been provided to him and if it had that would have prevented him falling. In my judgment, the ladder used by the Claimant was clearly unsuitable. It was too short to provide proper and safe access to the cabinet for the work which the Claimant had to carry out. Because of its height, angle and position it involved him leaning outwards at times when doing the work in the cabinet, and in particular when he was inserting the replacement card using both hands. This gave rise to the clear risk that, as indeed happened, he would lose his balance and come off or fall from the ladder. The fact that it had rounded rungs as opposed to steps would also, in my judgment, have added to the Claimant's difficulty in keeping his balance. A ladder or stepladder of adequate length and with suitable steps to afford the Claimant a safe footing and a safe means of carrying out his work in the cabinet should have been provided. It must therefore follow that I find that the Defendants were in breach of Regulation 5 and Regulation 6 of the Construction Regulations, because it would have been reasonably practicable for them to comply with the requirements of those Regulations by providing the Claimant with or ensuring that he was provided with a suitable ladder or stepladder or other equipment.
45. I next turn to the Provision and Use of Work Equipment Regulations, 1998. Under Regulation 2 of those Regulations "work equipment" means "any machinery, appliance, apparatus, tool or installation for use at work (whether exclusively or not)." "Use" in relation to work equipment means "any activity involving work equipment" and specific examples are given. So far as the Defendants are concerned, the duty imposed on them under these Regulations is set out in Regulation 3(2): "The requirements imposed by these Regulations on an employer in respect of work equipment shall apply to such equipment provided for use or used by an employee of his at work."
46. In my judgment, the ladder which the Claimant used was, so far as the Defendants are concerned, work equipment. Although the Defendants did not directly provide the ladder for the Claimant's use, it was in fact used by the Claimant and therefore in my judgment falls within the requirements imposed on the Defendants by Regulation 3(2). The Claimant alleges that the Defendants were in breach of Regulation 4(1) of those Regulations in that they failed to ensure that the ladder was so constructed or adapted as to be suitable for the purpose for which it was used or provided. Regulation 4(4)(a) provides that "suitable" means "suitable in any respect which it is reasonably foreseeable will affect the health or safety of any person." In my judgment, the ladder used by the Claimant was unsuitable for the reasons which I have already given in relation to the breaches of the Construction Regulations. In my judgment those shortcomings in the ladder are such that, within the meaning of Regulation 4(4)(a) of the Work Equipment Regulations, it was reasonably foreseeable they would affect the safety of any person using the ladder to carry out work upon the cabinet.
47. At one point, it appeared to be argued on behalf of the Defendants that because they did not know the Claimant was going to use this particular ladder or of its unsuitability, they could not reasonably foresee the Claimant's safety would be affected. In my judgment, such argument is misconceived because under Regulation 3(2) the applicability of Regulation 4 bites upon the employers simply by virtue of the Claimant's use of the ladder. In my judgment, if an employer puts its employee in a position where he has to select the equipment he uses or he uses equipment provided by a third party or left in position by a third party, and, objectively, that equipment is unsuitable within the meaning of Regulation 4(1) and Regulation 4(4)(a), then the employer is in breach of the requirements of Regulation 4(1). This would be particularly so where, as here, as I have found, the Defendants knew that the Claimant would have to gain access to a cabinet which was at a height of 8 feet. Accordingly, I find that the Defendants were in breach of Regulation 4(1) of the Work Equipment Regulations, 1998.
48. Finally, so far as breaches of statutory duty are concerned, I turn to the Workplace (Health, Safety and Welfare) Regulations, 1992. The Claimant alleges the Defendants were in breach of Regulation 13 of those Regulations in that, so far as was reasonably practicable, suitable and effective measures were not taken to prevent the Claimant falling a distance likely to cause personal injury. In Regulation 2(1) of these Regulations, it is provided that "workplace" means "any premises or part of premises which are not domestic premises and are made available to any person as a place of work."
49. Regulation 3(1)(b) of the Regulations provides: "These Regulations apply to every workplace but shall not apply to … (b) a workplace where the only activity being undertaken is construction work within the meaning assigned to that phrase by Regulation 2(1) of the Construction (Health, Safety and Welfare) Regulations, 1996, except for any workplace from which the application of the said Regulations is excluded by Regulation 3(2) of those Regulations." I have already found that the work being undertaken by the Claimant was such construction work. The question therefore arises as to whether by virtue of Regulation 3(1)(b), the Workplace Regulations do not apply to the server room at the time of the Claimant's accident. This question must turn upon the interpretation of the words "where the only activity being undertaken is construction work" in Regulation 3(1)(b). In my judgment, the sensible and appropriate approach to this is to interpret that phrase as meaning at the point in time when the use of the workplace is being considered, for example in relation to an alleged breach of the Regulations. At the time leading up to and when the Claimant's accident occurred, the only activity being undertaken in the server room was the Claimant's construction work. Thus, in my judgment, the Workplace Regulations do not apply to the server room in relation to the Claimant's accident. The fact that at other times the room might be used for non-construction work activity is, in my judgment, irrelevant.
50. If I am wrong in so concluding that the Workplace Regulations did not apply to the server room at the material time, it would then have to be considered whether, under these Regulations, any requirements were imposed upon the Defendants. Regulation 4(1) provides "Every employer shall ensure that every workplace … which is under his control and where any of his employees works complies with any requirement of these Regulations which: (a) applies to that workplace … and (b) is in force in respect of the workplace." The question would therefore arise as to whether, at the material time, the server room was under the control of the Defendants. The Claimant argues that, by reason of the fact that the Claimant was permitted to work in the room and was a presence of his employers in the room, they had control of that workplace. In my judgment, that argument is not well founded: whilst the Defendants were permitted to carry out work in the room and no doubt had control of the Claimant and the work he was doing, they had no rights in relation to or ownership of the room itself and therefore the room was not under their control. Thus, the Claimant on that basis as well would fail to establish the Workplace Regulations applied to the Defendants and so they could not be in breach of Regulation 13 thereof as alleged.
51. Mr. Russell on behalf of the Defendants argued that, even if the Defendants are found to be in breach of any statutory duties as alleged, the Claimant should still fail in his claim against the Defendants because any such breach was not causative of the Claimant's accident. The accident, it was argued, was solely caused by the Claimant deciding to use the ladder in question and to work on it in the way that he did. In advancing that argument, Mr. Russell relied upon Wallis -v- Balfour Beatty Rail Maintenance Ltd. [2003] EWCA Civ 72. In that case the Court of Appeal held that, although the Defendants were in breach of Regulation 17(2) of the Workplace Regulations, 1992, the accident in question was solely caused by the Claimant's decision to use a hazardous route to gain access to a railway track, and not by the breach of the Regulations.
52. The facts of that case were quite different from the present case and the question of whether or not a particular breach of statutory duty is causative of an accident must turn upon the facts of the case. In my judgment, in the present case the breaches of statutory duty under the Construction Regulations, 1996 and the Work Equipment Regulations, 1998, which I have found established against the Defendants, were plainly causative of the accident. Those Regulations fairly and squarely placed upon the Defendants the onus of providing safe means of access to the Claimant's place of work and there being suitable work equipment for his use. The fact that the Defendants chose to leave the Claimant to use his initiative to select his means of access to equipment he had to work upon and to choose or obtain work equipment for himself cannot, in my judgment, absolve the Defendants of the consequences of their breaches of the Regulations and cannot provide any basis for concluding that those breaches were not causative of the Claimant's accident.
53. In the light of my finding that the Defendants are liable to the Claimant by reason of their breaches of statutory duty which I have found established, it is not necessary for me to consider the allegations of common law negligence on the part of the Defendants in great detail. In my judgment, it was reasonably foreseeable on the part of the Defendants that in leaving it to the Claimant to do his best to provide himself with suitable plant or equipment and a safe means of access to equipment he had to work upon, he may well simply make use of whatever equipment or means of access might be available at the premises in question. Furthermore, as I have found, the Defendants knew that at this particular premises the Claimant would have to gain access to the cabinet which was at a height of 8 feet. In my judgment, there was a clear duty upon the Defendants to provide the Claimant with safe plant and equipment and to see that he was provided with a safe means of access to places of work at their customers' premises and with a safe system of work. All of that is effectively acknowledged in their health and safety policy to which I have referred. Bearing in mind that, as I have found, the Defendants gave the Claimant no instruction in health and safety or in relation to the use of equipment or in working at heights and never provided him with any stepladders for his work, in my judgment they were negligent in that they did not provide him with or arrange for him to be provided with safe and suitable plant or equipment or a safe means of access to the cabinet and did not provide him with a safe system of work. The other allegations of negligence made against the Defendants do not effectively add to the negligence I have found established and I do not consider them further. Insofar as the Defendants would seek to argue that the negligence I have found established against them was not causative of the accident, I reject that submission on the same basis as in relation to the breaches of statutory duty.
54. The Defendants argue that, if there is liability on their part in respect of the Claimant's accident, a substantial measure of blame for the accident must attach to the Claimant himself. Their allegations of contributory negligence against the Claimant are set out under Paragraph 6 of their Defence. In essence, the relevant allegations are that he failed to secure his safety from proper means of access to the cabinet, that if the ladder he used was unsuitable he failed to heed that and proceeded to use it, that he failed to report back to the Defendants any difficulty with the means of access, failed to keep his balance and over-reached himself and/or fell, and failed to take reasonable care for his own safety.
55. I find that the Claimant was a mature and experienced engineer with considerable technical ability. Although it has to be borne in mind that the Defendants simply left it to him to use his initiative, there was clearly, in my judgment, a duty upon him to take reasonable care for his own safety. Whilst the ladder in question was sturdy, it must have been immediately obvious to him that it was not of sufficient height to give proper and safe access to carry out the work upon the cabinet. Indeed, he really concedes as much, in my judgment, in his witness statement. He said in Paragraph 8 of his first witness statement, "Unfortunately the ladder was not quite long enough to reach the box." Furthermore, in my judgment, it must have quickly become clear to him that, because of its insufficient height and its angle and position beneath the cabinet, it would be necessary for him at times in carrying out the work to lean outwards from the ladder. Again, he concedes this in Paragraph 10 of his witness statement, where he says, "To reach the box I had to stand on the ladder, leaning my body outwards then in, to reach the box inside the metal cabinet." Although in the earlier stages of the work he was able to hold onto the cabinet with one hand, he should have realised that subsequently, when dealing with the insertion of the card, which was fiddly, he might have to use two hands. That, in my judgment, should have led him to realise that he might then be placed in a precarious position on the ladder. Despite that, he persisted in using the ladder and at no stage took any steps to seek to provide himself with a suitable ladder or to report the potential difficulties to his employers. Further, as I have found, the Claimant was not under pressure of time to complete the job. Whilst, in my judgment, the Defendants must bear a substantial part of the liability for the accident by reason of their breaches of statutory duty and negligence as employers, I take the view that significant blame must also attach to the Claimant for failing to take care for his own safety in the respects to which I have referred. Although no doubt he considered that he was doing his best to complete the job for his employers, he should have had regard to his own safety. In my judgment, in all the circumstances the Claimant was one-third to blame for the accident. It therefore follows that there will be judgment for the Claimant against the Defendants for two-thirds of the damages to be assessed.
56. Having dealt with the Defendants' liability to the Claimant, I now have to consider the Defendants' Part 20 claims against Redbridge and East and determine whether either of those parties is liable to make a contribution to the Defendants in respect of the Defendants' liability to the Claimant. The allegations of the Defendants against Redbridge and East which are now relevant are that the accident was caused by the same breaches of statutory duty on their part as were alleged by the Claimant against the Defendants and by their negligence in failing to provide the Claimant with sufficient or suitable equipment for gaining access to the cabinet; failing to heed the requirement for him to reach the cabinet; causing or permitting him to use a ladder which was inadequate for the purpose for which it was required; and failing to provide a safe place and/or a safe system of work. The Defendants also repeat the allegations of breach of statutory as allegations of negligence.
57. I will deal with the alleged breaches of statutory duty of Redbridge and East in the same order as I considered them as between the Claimant and the Defendants. In relation to the Construction (Health, Safety and Welfare) Regulations, 1996, I have already found that the work being carried out by the Claimant was construction work within the meaning of those Regulations. Regulation 4(2) of the Regulations imposes certain duties on non-employers in relation to construction work. Regulation 4(2) provides: "It shall be the duty of every person (other than a person having a duty under Paragraph (1) or (3)) who controls the way in which any construction work is carried out by a person at work to comply with the provisions of these Regulations insofar as they relate to matters which are within his control." The Defendants argue that East and/or Redbridge had control over the server room which they shared for the purposes of housing information technology or communications equipment and that, by providing the ladder, which was there, as a means of access to the cabinet, they controlled the way in which the Claimant carried out his construction work, as inevitably he would use the ladder to carry out the work.
58. Redbridge and East submit that it cannot be said that either of them controlled the way in which the Claimant carried out his work in the server room. Furthermore, Redbridge asserts that it had no control over the server room, which was entirely in the control of East, and had merely been permitted to install the cabinet and contents there and to have access to it when required. Redbridge and East each rely upon McCook -v- Lobo [2003] ICR 89 and in particular a passage in the judgment of Judge, L.J. at Paragraph 16 where he dealt with the application of Regulation 4(2). He stated: "The requisite level of control before the duty does arise, however, is linked to the way in which construction work is carried out and is confined to construction work within the individual's control. For this purpose the obvious person who controls the way in which construction work on site is carried out is an employer. The employer owes express duties under Regulation 4(1). That, therefore, identifies the starting point. But someone who is not an employer may also be bound by the statutory obligation under Regulation 4(2). Whether the appropriate level of control over the work is or should be exercised by an individual other than an employer so as to create the duty to comply with the obligation under Regulation 4(2) is, in my judgment, a question of fact. It is not answered affirmatively by demonstrating that an individual has control over the site in a general sense as an occupier, or that as the occupier of the site he was entitled to ask or require a contractor to remove obvious hazards from the site. The required control is related to control over the work of construction."
59. In my judgment, it cannot be said that either Redbridge or East controlled the way in which the Claimant carried out his work. He was not bound to use the ladder in question and in any event neither Redbridge nor East, whatever control they might have had of the server room, had no right or basis for controlling the way in which the Claimant did his work and cannot be said to have controlled it simply by reason of the presence of the ladder in the room. Furthermore, the Defendants were specialist contractors who would determine how the work in question was to be carried out. Also, as far as East were concerned, they had no interest whatever in the work being carried out on Redbridge's equipment in the server room. I therefore find that neither Redbridge nor East controlled the way in which the Claimant carried out the work in question and that therefore no duties were imposed upon them under the Construction Regulations, 1996.
60. So far as the Provision and Use of Work Equipment Regulations, 1998, are concerned, again, under these Regulations, duties can be imposed upon non-employers. Paragraph 3(3) of the Regulations provides: "The requirements imposed by these Regulations on an employer shall also apply: …(b)… to a person who has control to any extent of - (i) work equipment (ii) a person at work who uses or supervises or manages the use of work equipment or (iii) the way in which work equipment is used at work; and to the extent of his control." Paragraph 3(4) provides: " Any reference in Paragraph 3(b) to a person having control is a reference to a person having control in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not)." I have already set out in relation to the Defendants the definition of "work equipment" in the Regulations.
61. The Defendants argue that both Redbridge and East had control to some extent of the ladder and therefore under Paragraph 3(3)(b)(i) the requirements of Regulation 4 were imposed upon them. So far as East are concerned, the Defendants say the ladder was in East's locked server room and they must have had control of it. In relation to Redbridge, the Defendants say they had some degree of control over the server room and therefore of the ladder in it and they would know that the ladder might be used for access to their cabinet. Redbridge deny having any control over the ladder in that it was not their ladder, they had no control over the room it was in, such room being locked with only East having the keys. The fact that they were permitted to have their equipment in the room and to have access to it, in no way meant that they had any control over the ladder.
62. East maintains that vis-à-vis East the ladder was not work equipment because so far as it was concerned it was not "for use at work". East further submits that it had no control over the use of the ladder and there was no request to it to use the ladder.
63. In my judgment, it cannot possibly be said that Redbridge had control to any extent of the ladder. It was not its ladder and it had no control of the server room, which was locked and was under the ownership and control of East. The mere fact that Redbridge had some equipment in the room and was permitted access to it by East cannot have given Redbridge any control over the ladder. Thus, Redbridge cannot have any liability under these Regulations. However, in my judgment, the position is rather different as far as East is concerned. The server room was in its control and only East had the keys to the room. I have already made a finding that East must have been aware of the presence of the ladder in the room. Equally, in my judgment, it must have been aware that the ladder in the position it was in had been or might be used as a means of access to the cabinet. As the ladder was, as I find, in its control, East could have removed it from the room or placed a notice upon it stating that it must not be used. Indeed, in view of what Ms. McGurl says in her witness statement about East's policy regarding ladders on the premises, one might have expected they would have taken such measures.
64. I reject East's argument that the ladder in relation to it was not for use at work within the meaning of the Regulations. In my judgment, once it was in fact used at work by someone, it was work equipment over which East had control. Furthermore, in my judgment, even if East is correct in its argument that it had no control over the use of the ladder, that is irrelevant because the test is whether they had control or any extent of control over the ladder. It must therefore follow, in my judgment, that the duty of an employer in relation to the ladder under Regulation 4 is imposed upon East to the extent to which it had control of the ladder. Thus, East was under a duty to ensure that the ladder was so constructed or adapted as to be suitable for the purpose for which in fact the Claimant used it. I have already found in relation to the Defendants that the ladder was not suitable for that use and that must equally apply as against East.
65. East also put forward an argument similar to that put forward by the Defendants in relation to the meaning of suitability under Regulation 4(4)(a) of the Regulations. Thus, it argued that because it did not know the Claimant was going to use the ladder or the use to which he was going to put it, it could not reasonably foresee that the Claimant's safety would be affected. I reject that argument for similar reasons to those I gave for rejecting the Defendants' submission on this point. In relation to East, once its control over the ladder is established, the applicability of Regulation 4 bites simply by virtue of the Claimant's use of the ladder. In my judgment, if a person with control over a ladder leaves it in a position where it may well be used by another's employee to gain access to a piece of equipment and objectively that ladder is unsuitable for such use within the meaning of Regulation 4(1) and Regulation 4(4)(a), then the person having control of the ladder is in breach of the requirements of Regulation 4(1) once such use is made of it. Accordingly, I find that East was in breach of Regulation 4(1) and that such breach contributed to the accident.
66. I have already found that the Workplace (Health, Safety and Welfare) Regulations, 1992, did not apply to the server room at the time of the Claimant's accident, as the only work being undertaken there was construction work. That finding must equally apply in relation to Redbridge and East, and so they cannot be in any breach of those Regulations. Again, if I am wrong in that conclusion, it would then have to be considered whether, under those Regulations, any requirements were imposed on Redbridge or East. Regulation 4(2) provides: "…Every person who has to any extent control of a workplace … shall ensure that such workplace … complies with any requirements of these Regulations which (a) applies to that workplace …(b) is in force in respect of the workplace and (c) relates to matters within that person's control." Regulation 4(3) provides, "Any reference in this Regulation to a person having control of any workplace … is a reference to a person having control of the workplace … in connection with the carrying on by him of a trade, business or other undertaking (whether for profit or not)."
67. Redbridge denies that it had any control at all over the server room. It relies upon King -v- RCO Support Services [2001] 1 ICR 608. I am not sure that that authority helps me as it turns on its own particular facts. However, in my judgment, Redbridge did not have to any extent control of the server room. Again, I find that the room was locked with the keys in the sole possession of East, and the fact that Redbridge was permitted by East to have some equipment in the room and was permitted to have access to that equipment cannot mean that Redbridge had any control over the room. Thus, for those reasons, too, the Defendants' claim against Redbridge in respect of these Regulations would fail.
68. East maintains that, so far as it was concerned, the server room was not a workplace because it was not made available to the Claimant as a place of work. I reject that argument as in my judgment clearly the server room was a place of work being used by the Claimant at the material time. Furthermore, I find that East clearly had control of the server room and so the requirements under Regulation 13 prima facie apply to East. East sought to argue that Regulation 13 is not intended to apply to falls from ladders or from a height such as that involved in the Claimant's accident. I find there is no basis for such an argument and that East would be in breach of Regulation 13, if these Regulations applied, as it could have provided a suitable ladder in the server room which would have avoided the Claimant falling a distance likely to cause personal injury. However, by reason of my primary finding that these Regulations did not apply to the Claimant's work as it was construction work, East have no liability under them.
69. It remains for me to consider whether Redbridge or East have any liability for the accident in common law negligence. The Defendants do not make allegations against them under the Occupiers Liability Act, 1957, but assert that Redbridge and East owed common law duties of care to the Claimant. Redbridge maintain that, although they employed the Defendants as contractors to carry out work on their equipment in the server room, they cannot owe any common law duty to the Claimant, in the absence of the work amounting to an extra hazardous activity, and in no way could they be liable to the Claimant as a joint tortfeasor with the Defendants. East maintains that merely because it had control of the room or the ladder in it cannot give rise to a duty in common law to the Claimant as there was insufficient proximity between East and the Claimant and it would not be fair, just and reasonable to impose such a duty, which would seek to impose the duty of an employer upon East. Of course, as I have already found, various of the Regulations relied upon in this claim can impose the duties of an employer upon East, but that is very different from there being any freestanding common law duty upon East.
70. Redbridge and East rely upon Ferguson -v- Welsh [1987] 1 WLR 1553, where the House of Lords held that a council could not be liable under the Occupiers Liability Act or at common law to an employee of sub-contractors who was injured when works on a building owned by the council were carried out in a dangerous manner. At Page 1560H, Lord Keith said: "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 be reasonable for the occupier to take steps to see that the system was made safe." At Page 1561H to 1562A, he further stated: "In my opinion, Mr. Ferguson has not demonstrated sufficient grounds for reopening the case against the council so far as based on the Act of 1957. His alternative case based on the ordinary common law duty of care does not raise any considerations of a different nature to those applicable to the statutory case." Lord Goff said at Page 1564B: "I wish to add that I do not, with all respect, subscribe to the opinion that the mere fact that an occupier may know or have reason to suspect that the contractor carrying out work on his building may be using an unsafe system of work can of itself be enough to impose upon him a liability under the Occupiers Liability Act, 1957, or indeed in negligence at common law, to an employee of the contractor who is thereby injured, even if the effect of using that unsafe system is to render the premises unsafe and thereby to cause the injury to the employee."
71. I was also provided with the transcript of a judgment of His Honour Judge Playford, Q.C. in Hood -v- Mitie Property Services (Midlands) Ltd. and Royal Mail Group PLC, where he had to consider contribution proceedings by the Claimant's employers against Royal Mail Group when the Claimant was injured as a result of an unsafe system of work while working at Royal Mail's premises. The employers had been contracted by Royal Mail to carry out the work at those premises. At Paragraph 27 the learned Judge stated: "(Counsel for the Claimant) submits that there is a freestanding duty at common law imposed on the Post Office, which subsists independently of any duty under the Occupiers Liability Act. There is, so he says, proximity and foreseeability and it is reasonable and fair that there should be such a duty, having regard to the dangerous nature of the work being undertaken." At Paragraph 31 he said: "In my view, to impose a common law duty of care on the Post Office would be tantamount to imposing on the Post Office the duty of an employer of Mr. Hood. Such an imposition would, I think, be neither fair nor reasonable and it would constitute a departure from established principle."
72. Although there may be situations where a person who engages or permits an independent contractor to do work, such as where it is an extra hazardous activity, may become liable if such work causes an injury (see Clerk and Lindsell on Torts, 19^th Edition, Paragraph 6-63), no such situation in my judgment existed here in relation to either Redbridge or East. Bearing in mind the dicta to which I have referred and the submissions made by Redbridge and East, I find that neither of those parties owed any common law duty of care to the Claimant in relation to his accident. It therefore follows that the Defendants' claim for contribution from Redbridge and/or East on the basis of common law negligence fails.
73. The result of my findings regarding the contribution proceedings is that the Defendants wholly fail as against Redbridge and there must be judgment for Redbridge in the Part 20 claim against it.
74. I have found that, in one respect, namely under the Provision and Use of Work Equipment Regulations, 1998, East was in breach of statutory duty in that, having control of the ladder in question, it was in breach of the duty imposed upon it to ensure the ladder was suitable for the purpose for which the Claimant used it. Accordingly, it is necessary for me to decide under Section 2 of the Civil Liability (Contribution) Act, 1978, the amount of the contribution recoverable by the Defendants from East in respect of their liability to the Claimant. The amount is such as may be found by the Court to be just and equitable having regard to the extent of East's responsibility for the Claimant's accident. Whilst the unsuitable ladder was in the control of East and was left by East in its position in the server room where the Claimant could use it for access to the cabinet, and East must be liable to that extent, in my judgment the responsibility of the Defendants as employers both for their breach of statutory duty and common law negligence is very much greater than that of East. In all the circumstances, I have decided that the Defendants should recover from East a contribution of 25% in respect of the Defendants' liability for the Claimant's damages as they are assessed to be after the deduction of one-third for the Claimant's contributory negligence.