Unproven criminal acts, the duty and care and civil liability

Introduction

Whilst all cases turn on their own facts, the law operates in a vacuum when assessing the evidence before it when reaching an outcome. It may well be that prosecutions could have been pursued based on the actions of Defendants and that whilst there may be great sympathy for a Claimant's misfortune, the Court is only concerned with the facts before it, not the emotions or sympathy they may engender.

The ability to conduct a forensic analysis of the evidence and the facts before a Court cannot be understated in Counsel, especially when dealing with emotive matters. Lewin v Gray [2023] EWHC 112 (KB) is a recent example of the importance of this.

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The facts of Lewin v Gray

Mr Lewin (herein referred to as the Claimant) was a self-employed builder who had over many years undertaken building jobs at a farm occupied by Mr Gray (herein referred to as the Defendant). He has previously worked for the Defendants' late Father, and it appears that there was a good relationship between the two.

Sadly, on the 18th of January 2018 as work was being undertaken at the farm, the Claimant who was working on the roof of a barn at the farm, dealing with guttering, lost his balance and fell. He landed on the floor of the barn and sustained catastrophic injuries rendering him paraplegic from the L1 level.

The Construction (Design and Management) Regulations 2015

Neither the Claimant nor Defendant had been aware of the requirements of the Construction (Design and Management) Regulations 2015 which required the Claimant to prepare a Construction Phase Plan, and that the Defendant ensure that such a plan had been drawn up before works commenced. HHJ Robinson on this point at paragraphs 8 of the Judgment set out that;

“…it was acknowledged in evidence that before this tragic accident neither the Claimant nor the Defendant were aware of the existence of the Regulations, but such ignorance does not, of course, provide an excuse much less a defence, to any breach of relevant obligation imposed by the Regulations. It is beyond doubt that both the Claimant and the Defendant did not comply with obligations imposed upon them by the Regulations. Whether the failure by the Defendant to comply with such obligations gives rise to any cause of action by the Claimant is the issue which takes centre stage in this case”.

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The Judgment

This was clearly a fact heavy case and one that would turn on its own merits, a point well shown in the Judgment with paragraphs 16 – 73 covering issues of fact alone. The case advanced by the Claimant concerned breaches of;

1. Section 2 of the Occupiers Liability Act 1957;
2. Regulations 4, 17 and 19 of the Construction (Design and Management) Regulations 2015;
3. Common law negligence.

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The Court identified when getting to the core issues between the parties, that any criticism of the Defendant concerning his selection of the Claimant as a competent contractor and the failure by the Defendant to supervise the Claimant were, rightly not pursued. The evidence before the Court rendered them untenable. The Claimant was very experienced, knew the farm, and had performed roof work without incident in the past.

The duty owed by the Defendant to the Claimant under section 2 (2) of the Occupiers Liability Act 1957 was self-contained and well known, and it appears dismissed at paragraph 76 – 78 of the Judgment through;

“It was obviously reasonable for the Defendant to expect that the Claimant, for the purposes of the 1957 Act, would appreciate and guard against risks inherent in performing the guttering work”.

That left the allegations arising from the failure on the part of the Defendant to request a Construction Phase Plan from the Claimant. On this point HHJ Robinson identified that the 2 main issues before the Court were;

1. Did the Defendant owe a duty of care in tort to ensure that the Claimant produce a Construction Phase Plan? If so
2. Did failure to discharge that duty cause or materially contribute to the Claimant’s accident?

Factually, the Defendant had not been prosecuted for a breach of the Construction (Design and Management) Regulations 2015. The Claimant sought to argue that under section 11 of the Civil Evidence Act 1968?in any civil proceedings, the fact that a party has been convicted of an offence before a Court is admissible as evidence for the purposes of proving negligence. The Claimant argued (as captured in paragraph 82 of the judgment) that despite this;

?“if the Court [was] satisfied that the [Defendant] has not complied with the duties he owed under the CDM 2015 regulations, then the starting point is that he has not met the standard of care which the criminal law expects.”.

However, there was no prosecution, and the decision to prosecute in this matter was and remained an unrealised discretionary one. Whilst the argument advanced appears a practical one, it fell short of its required basis. At paragraph 85 of the Judgment, the Court held that;

“..there is no justification in this case for overriding the clear words of Section 47 of the 1974 Act (as amended). Absent the obligation placed upon a “client” in the position of the Defendant to ensure that a competent contractor produced a Phase Construction Plan, there could be no justification, in my judgment, for imposing any such obligation at common law upon a person such as the Defendant. It is only because of the existence of the duty under the Regulations that an argument such as that advanced by Mr Snarr gets off the ground. But in this case, the Claimant is a “one man band” and so is the Defendant. The Claimant had worked for the Defendant’s father on and at the farm for many years. The Defendant had only recently taken over the farm following the death of his father. The Claimant was the older and far more experienced man.?The relevant authorities saw no reason (so it appears) to institute criminal proceedings against the Defendant. In such circumstances I simply do not accept that it is fair just and reasonable to override the express provision in Section 47 of the 1974 Act (as amended) that breach of the Regulations “shall not be actionable”. In my judgment, absent other authority to the contrary, that means that there is no civil liability in this case in respect of the facts giving rise to the breach of the Regulations”.

Concluding at paragraphs 99 – 100, HHJ Robinson held that;

“…I do not accept the Claimant’s evidence that requiring him to produce a written plan would have prompted him to ask for the man basket to be placed in the barn to act as a crash deck… ?In fact, the breach of duty relied upon is a failure to ask the Claimant to produce a Construction Phase Plan. On the hypothetical basis that the Claimant would have found out what a Construction Phase Plan was and perhaps looked at the brief model plan produced by the HSE … ?there is nothing obvious in that plan to alert the Claimant to the desirability of requesting a crash deck…

To observe that the Claimant was fixed in his ways is not intended to be a criticism. He had 30 or so years of experience in compiling risk assessments in his head. Nothing said to me by the Claimant and nothing that I have read comes close to persuading me that it is “probable” that the exercise of writing down what was in the Claimant’s head would have led to the addition of a request for a crash deck. Benefit of hindsight does not, in this case, translate into probability of a different outcome”.

Conclusion

The claim, on the facts before the Court, failed, despite both parties being unquestionably in breach of the Construction (Design and Management) Regulations 2015. This breach did not give rise to a civil cause of action applying section 47 (2) of the Health and Safety at Work Act 1974 as amended by the Enterprise Act 2013. As?the law has moved from the likes of Stark v Post Office [2000] ICR 1013 and Ellis v Bristol County Council [2007] EWCA Civ 685 due to the Enterprise Act 2013, the Claimant could not overcome this by arguing that there was a common law duty of care to at least comply with the criminal law. It’s an interesting point and one that I can foresee being expanded upon in other cases, with different facts.

I do wonder though, what would have happened had there been a successful HSE prosecution on the basis of the Construction (Design and Management) Regulations 2015?

That said, it must have been a very difficult task for a HHJ Robinsion when confronted with a genuine tragedy, to have to find that there was no fault despite the accepted failings that occurred, knowing it left a seriously injured person with no means of compensation. HHJ Robinson doesn’t seem to have been blind to this, and in paragraph 104 stated that whilst the claim failed, he felt;

“it impossible to leave this case without expressing [his] admiration for the manner in which the Claimant has conducted himself in the face of terrible adversity, and [his] regret that after so many essentially injury free years of devoted service to countless clients his career has to end in this manner”.

Despite the need to assess evidence in an emotionless vacuum as set out at the start of this note, it’s reassuring to see that the Judges who decide such matters acknowledge the human impact their decisions have.