LORD JUSTICE NOURSE: I will ask Lord Justice Henry to deliver the first judgment.
LORD JUSTICE HENRY: This is an appeal from His Honour Judge Hutton (sitting as a Judge of the High Court) who found for the defendant in a personal injuries action brought by the plaintiff. The plaintiff now appeals, and the defendant cross-appeals.
The plaintiff was injured when carrying out building works involving the re-tiling of the porch roof of a house on Sonning Common, owned by Mr. and Mrs. Bird. He fell and suffered head injuries which caused serious brain damage. He was working alone at the time, and the judge (though critical of his credibility generally) accepted that as a result of his head injury he had suffered retrograde amnesia which resulted in him having a limited recollection of events on that day, and no recollection of the accident itself. There were no other witnesses to the accident, and so there was no direct evidence as to how the accident had happened. It was contended before the trial judge, and before us by way of respondent's notice, that the state of the evidence was such that the judge could not properly infer the cause of the accident, which remained a matter of surmise or conjecture. I deal with that point first.
The trial judge's finding as to what had happened was this:
"What he says is that he remembers going to the site in his car in the morning as usual, parking it, and having a cup of coffee from his flask while he considered the day's work. He then put the ladder (which I find to be his own ladder) up against the brick wall to start the work. In the course of his evidence-in-chief and cross-examination he asserted that the work that he was doing that day was on the hip surface of this small porch roof, which is well shown in the bundle of photographs in the white cover and in particular photograph No. 3 shows that portion of the roof. He said that he remembers putting the ladder up against the brick wall of the porch, up to that hip section, and he recalls being on that ladder cutting one of the artificial slates for the purposes of fitting the angle of that hip. That is the last recollection he has before waking up in hospital, which was probably a good many days later ..."
The lady of the house, Mrs. Bird, having taken her children to school and having called in at a shop on the way back, returned home. The judge described what she found when she got back to the premises:
"[She] arrived at her home to find the plaintiff sitting in his car, which was parked on the road just outside the gate, obviously injured, to the extent that a small amount of blood was seen trickling from his ears, and on being talked to he was obviously in a confused state of mind. He was able to speak, although confusedly. What he was saying was that he wanted aspirin and to go home, and he was declining the offer of being taken into the house and being seen by a doctor. Fortunately, Mrs. Bird persuaded him to go into her kitchen. She rang the doctor, who appeared very quickly. An ambulance was summoned and the plaintiff was taken to the West Berkshire Health Authority Hospital at Reading.
Mrs. Bird noticed two very odd things in the course of this time, after she had returned from the school. She noticed, first, that, whereas, when she left, the ladder had been up on the brick wall, outside the front door, and the plaintiff's tools were on the ground by it, with some appearances of his having cut slates, when she came back the ladder had been taken down or at least collected and apparently laid tidily against the wall, together with all the plaintiff's tools and, incredibly, the slate dust, she said, which had obviously been on the concrete surface, had been swept also. As there is no suggestion that anybody else had done those things, the inference must be that the plaintiff himself had carried out that task at some stage. The other thing she noticed was a not inconsiderable patch of blood on the concrete surface some little way out from the front door, described as about the size of a saucer, whereas neither she nor anybody else observed any obvious wound on the plaintiff's face or head which could have caused that amount of blood, because the small amount of blood escaping from his ears could not have caused the amount found on the ground.
Further, the record completed by the appropriate medical officer at the Reading Hospital on the plaintiff's admission merely recorded blood from the ears and a swelling at the back of the head but there is no record of any other wound that could explain that considerable amount of blood. It is also worth noting that there is no record on the hospital records of grazes to the plaintiff's body, such as on his hands, arms or face, which might have suggested that he tried to protect himself as he fell. This is a point that Mr. Radley-Smith for the defendants has made much of and he actually, on that evidence, suggested that it appears to him that the plaintiff must have been unconscious when he fell from wherever he did fall in order to cause the injury in the odd place at the back of his skull, without any indication of his trying to protect himself from the fall."
Three mysteries were raised by that evidence: first, the source of the blood; second, the absence of any injuries consistent with the appellant trying to break his fall; third, his ability to tidy away his ladder and his tools and to sweep up when so injured. All of these things surprised and puzzled the doctors called for the defence in this case, and led to speculation by them that the plaintiff's fall (which was admitted) was caused either by an assault on him, or by him having a fit.
The learned editor of Charlesworth on Negligence (8th Edition) deals with the problem facing the judge on page 412:
"In some cases the facts of an accident are unknown and, in order to succeed, the plaintiff must then prove facts, from which an inference of negligence on the part of the defendant may reasonably be drawn. 'It is a mistake to think that because an event is unseen its cause cannot be reasonably inferred.' (per Lord Buckmaster in Jones v. Great Western Railway (1930) 47 TLR 39 at p.41). The facts however must be such as to put the matter beyond a mere surmise or conjecture and they must lead to an inference which is a reasonable deduction from the facts actually observed and proved."
The proven facts here, and the only pointers to what had happened, were the appellant's last memory (working up the ladder, cutting the slate to size), the position of the blood, and the nature and extent of his injuries. So there was no direct evidence as to how the accident had happened. It was submitted that there was insufficient evidence to entitle the judge to make any finding that one sequence of events was more probable than not; that is to say, more probable than any other explanation or the sum of all other possible explanations.
The judge rejected this submission. He found that he was able to draw sufficient inferences of fact. His critical findings were:
"On that evidence, in spite of the suggestions from Mr. Radley-Smith and indeed Mr. Gaind for the defence that this injury could have been caused by something completely different -- i.e. from a fall, such as an attack by somebody else from behind the plaintiff or from some sort of a fit or seizure causing him to fall or indeed just from a stroke -- which are not supported by any evidence themselves, I find, on the balance of probabilities, that it has been proved on behalf of the plaintiff that he fell from that ladder (we know not at what height, but I think probably from the top of it) while he was working from the ladder but working at the hip section of the roof. If he fell from the top of the ladder it would have been a fall of something like ten feet, because the height of the eve level of the hip is 10 ft. 6 ins. from the ground. I find that the injuries that he did suffer were caused by that fall from that ladder.
On the balance of probabilities I find that that fall was due to a sudden loss of balance by the plaintiff himself, presumably due to a momentary lack of attention. I can see no force in the suggestion that the ladder must have slipped, and I have already discounted a fit. So I find on the balance of probabilities that he lost his balance and fell off the ladder, probably while he was cutting a slate at the top of the ladder to get the angle right for the hip, whereas, of course, he could have marked the slate at the proper angle, descended to the ground, and cut it there. I find that the plaintiff must have cleared the ladder, and his tools and debris, and, therefore, must have had sufficient consciousness to do so. I did not have any satisfactory medical evidence to explain this but I am prepared to accept from common knowledge that consciousness or unconsciousness can be of such a level that a patient can carry out some actions even though to that extent unconscious."
Those findings are silent as to the blood that Mrs. Bird saw. But had the ladder toppled as a result of the appellant overreaching to the right, his head could have finished by the otherwise unexplained blood. Mrs. Bird had observed some blood trickling from his ears (though, as the eardrum had not been perforated, the doctors were sceptical as to whether that could account for the blood described) and had described some blood at the back of his head. Her description as to the quantity on the ground ("a pool") might have been exaggerated, or a surprising amount might have been produced by the injuries.
It seems to me that the judge made the common sense finding as to how this accident happened, making reasonable deductions from the known facts, and sensibly refusing to be nudged off course by mere possibilities for which there was no evidence (such as the assault or the fit) or by the evidential mysteries which no theory could explain with any certitude. In my judgment he was entitled and right to do so. Ground 1 of the respondent's notice therefore should, in my opinion, fail.
The next question is whether the respondents owed to the plaintiff the common law or statutory duty of an employer to his employees, or whether the appellant when doing that job was acting as an independent contractor. When it comes to the question of safety at work, there is a real public interest in recognising the employer/employee relationship when it exists, because of the responsibilities that the common law and statutes such as the Employers' Liability (Compulsory Insurance) Act 1969 places on the employer.
The judge was to find that the appellant was not an employee, but was an independent contractor. In that event the appellant would have been responsible for his own safety; the respondent would have owed him no duty of care, and would have had no responsibility (statutory or at common law) for the safety of the work done by the appellant. That was the context in which the question was asked.
We were taken through the standard authorities on this matter: Readymix Concrete (South East) Ltd. v. Minister of Pensions and National Insurance [1968] 2 QB 497; Market Investigations Ltd. v. Minister of Social Security [1969] 2 QB 173; and Ferguson v. Dawson [1976] 1 WLR 1213, to name the principal ones. Two general remarks should be made. The overall employment background is very different today (and was, though less so, in 1986) than it had been at the time when those cases were decided. First, for a variety of reasons, there are more self-employed and fewer in employment. There is a greater flexibility in employment, with more temporary and shared employment. Second, there are perceived advantages for both workman and employer in the relationship between them being that of independent contractor. From the workman's point of view, being self-employed brings him into a more benevolent and less prompt taxation regime. From the employer's point of view, the protection of employee's rights contained in the employment protection legislation of the 1970s brought certain perceived disincentives to the employer to take on full-time long term employees. So even in 1986 there were reasons on both sides to avoid the employee label. But, as I have already said, there were, and are, good policy reasons in the safety at work field to ensure that the law properly categorises between employees and independent contractors.
That line of authority shows that there are many factors to be taken into account in answering this question, and, with different priority being given to those factors in different cases, all depends on the facts of each individual case. Certain principles relevant to this case, however, emerge.
First, the element of control will be important: who lays down what is to be done, the way in which it is to be done, the means by which it is to be done, and the time when it is done? Who provides (i.e. hires and fires) the team by which it is done, and who provides the material, plant and machinery and tools used?
But it is recognised that the control test may not be decisive - for instance, in the case of skilled employees, with discretion to decide how their work should be done. In such cases the question is broadened to whose business was it: was the workman carrying on his own business, or was he carrying on that of his employers? The American Supreme Court, in United States of America v. Silk (1946) 331 US 704, asks the question whether the men were employees "as a matter of economic reality". The answer to this question may cover much of the same ground as the control test (such as whether he provides his own equipment and hires his own helpers) but may involve looking to see where the financial risk lies, and whether and how far he has an opportunity of profiting from sound management in the performance of his task (see Market Investigations v. Minister of Social Security (supra at page 185).
And these questions must be asked in the context of who is responsible for the overall safety of the men doing the work in question. Mr. Whittaker, of the respondents, was cross-examined on these lines, and he agreed that he was so responsible. Such an answer is not decisive (though it may be indicative) because ultimately the question is one of law, and he could be wrong as to where the legal responsibility lies (see Ferguson v. Dawson supra at 1219G).
The facts that the judge had to consider were as follows. The appellant was a builder/roofer/carpenter who had since 1982 traded as a one man firm, P.J. Building. He had obtained self-employed fiscal status, with a right to the 714 tax exemption certificates issued by the Inland Revenue. As a one man firm he solicited work through advertisements, and when engaged by clients would of course be responsible for estimating, buying in materials, and matters of that kind. But that work had dried up. His public liability insurance had lapsed. At the time he answered the respondents' advertisement he was usually working for others.
The respondent company (which was the corporate manifestation of its proprietor, Mr. Whittaker) was a newly established roofing contractor. It was in its early days of trading, and Mr. Whittaker did not wish to take on too many long term employees - he considered it prudent and advantageous to hire for individual jobs. In September of 1986 he obtained a large roofing sub-contract in Marlow. He advertised for men to work that contract. The appellant answered that advertisement, and was employed by him at the daily rate of £45. He started work on that job at some time in September. It seems, though the evidence is not entirely clear on this, that that job was nearly over when, at the respondents' request, he left that job to do the Sonning Common porch re-roofing job. As he had been promised no work from the respondents after the Marlow job, it is right to consider the question whether he was an employee in the context of the Sonning Common job.
The building contract in relation to that job had been entered into by the respondents, through Mr. Whittaker, and the householders, Mr. and Mrs. Bird, for an agreed price of £389 (plus VAT). (As will be seen, the economic realities of that price were that if, to do it safely, scaffolding had to be hired and erected, the job would be loss-making to the respondents.) Mr. Whittaker then visited the site with the appellant, agreed to pay him an all-in fee of £200 for the job, and discussed (as we shall see) with him what was necessary in the way of plant (using that phrase to embrace ladders, scaffolds and trestles) to do the job. And Mr. Whittaker accepted in cross-examination that it was his responsibility to supply aids such as scaffolds and trestles. Had two men been employed on that job, Mr. Whittaker would have provided the other. The appellant brought to that job all his personal roofing and carpentry tools (including a slate cutter) but of course he provided no materials or plant. He brought his own ladder.
The judge's reasons for finding that the appellant was an independent contractor, not an employee, were these:
"The defendant company (which was really Mr. Whittaker's company) had only been in operation for six months and it would obviously be of advantage to him to be able to enter into contracts with other people for specific works without having a continuous payroll for those parts. I consider it important that the plaintiff himself had his own genuine roofing business, so that he was a roofing specialist, and he had the benefit of 714 certificates so that he could pay his own tax and was paid gross. He continued with that system while he was working on contracts for the defendant company. I note that the plaintiff was obviously capable of working without supervision and that Mr. Whittaker relied upon him to do so, although it seems that Mr. Whittaker was subsequently rather disappointed with the quality of the plaintiff's work and subsequently thought that the plaintiff had more experience with clay tiles than the artificial slates which he was using on the final contract. There was no guarantee given by Mr. Whittaker of continuing work for the defendant, no provision for notice or dismissal and, as pointed out by Mr. Matthews, that would have been unnecessary if this was genuine sub-contracting work, because each job had to be taken on its own and there was no guarantee that the plaintiff would be employed thereafter, though both the plaintiff and Mr. Whittaker were obviously anticipating that further jobs would arise which Mr. Whittaker could give to the plaintiff. In all the circumstances, therefore, I find that the plaintiff was an independent contractor throughout the time that he was working for the defendant company and in particular, of course, on the contract in question at the Birds."
Each of those four reasons given by the judge would apply equally to the work being done under a short-term single job contract of employment. All of them concentrate on what Mr. Whittaker wanted, and not on whose business it was. Mr. Matthews, for the respondents, rightly distinguishes between a Ferguson v. Dawson situation, where an employer engages men on "the lump" to do labouring work (where the men are clearly employees, whatever their tax status may be), and when a specialist sub-contractor is employed to perform some part of a general building contract. That team or individual clearly will be an independent contractor. He submits that the appellant in this case falls somewhere in between. With that I would agree, but would put this case substantially nearer "the lump" than the specialist sub-contractor. Though the degree of control that Mr. Whittaker would use would depend on the need he felt to supervise and direct the appellant (who was just someone answering the advertisement) the question "Whose business was it?" in relation to the Sonning Common job could only in my judgment be answered by saying that it was the respondents' business and not the appellant's. In my judgment therefore they owed the duties of employers to the appellant. Consequently, for my part I would find that the first ground of appeal against the judge's judgment succeeds.
The next ground of appeal challenges the judge's finding that even if a duty were owed, the respondents were not in breach of that duty. This issue was dominated by a stark conflict of fact. It was the appellant's case that he asked Mr. Whittaker to provide a scaffolding platform and that Mr. Whittaker refused and told him to get on with the job, which economic pressures forced him to do. That was rejected by the judge, who found that Mr. Whittaker had offered the plaintiff a trestle-type platform or tower scaffold to work from, but the plaintiff declined the offer, saying that he preferred to use his own ladder. (The respondents could provide trestles and tower scaffolds from their stock, but would have had to hire scaffolding, at a cost of £100 or upwards.)
The appellant first relied on Regulation 7 of the Construction (Working Places) Regulations 1966, which provides:
"Provision of scaffolds etc. Without prejudice to the other provisions of these Regulations, where work cannot be safely done on or from the ground or from part of a building or other permanent structure, there shall be provided, placed and kept in position for use and properly maintained either scaffolds or, where appropriate, ladders or other means of support, all of which shall be sufficient and suitable for the purpose."
The issue was whether a ladder was "appropriate" and "sufficient and suitable for the purpose". The case law shows that the test to be applied in deciding whether the ladder enabled the work "safely to be done" depended on whether the doing of the work from the ladder involved a foreseeable risk.
The judge and all experts called agreed that a scaffold platform just below the eaves at varying levels at each of the three sides of the roof would be the most effective way of carrying out the contract, and would certainly be safe. The use of trestles or scaffold towers had drawbacks. The argument against the use of scaffolding was that it was unnecessarily expensive. That expense would only be unnecessary if the work could safely be done from a ladder. The judge limited his consideration of the use of the ladder to its use at the hip surface of the roof, saying:
"I consider that for this purpose I should entirely ignore the other two slopes of this porch roof, which are entirely different and may or may not have required scaffolding. But, as I have found, and indeed it is not now disputed, any fall that the plaintiff suffered was from a ladder whilst he was on the hip face of this building on a ladder against the wall thereof, then the other two faces are irrelevant."
It seems to me that in answering the necessary statutory question as to whether the ladder would be appropriate for the work on the porch, the learned judge was bound to consider the work as a whole. This is because it was going to be a longish job - probably four days for one man - with a fair number of slates which would require cutting (as well as measuring in situ), giving rise to the temptation to cut them while on the ladder itself rather than returning to the ground each time. The point is made that this was a long time to be working on a ladder, particularly when all of the work on that ladder would be two-handed work. Again, I would not for my part agree that the work on the hip portion of the porch would be, as the judge found, "absolutely straight forward" from the ladder. The hip portion was relatively narrow, with the result that the plaintiff would have to work probably with one hand through and one hand outside a ladder coming up between him and the surface on which he was working. The dangers of overreaching in such a situation (particularly if the workman has fallen to the temptation of cutting slates from the ladder) are foreseeable, just as succumbing to the temptation to cut slates in situ is also foreseeable. For my part, on the primary facts as found by the trial judge, I would have found that it was not appropriate to use a ladder for this work, because overreaching and/or some other loss of balance was foreseeable, as the facts of so many cases before these courts show. So I would find for the plaintiff on the question of liability.
Mr. Matthews, for the respondent, also cross-appeals on the question of damages and the judge's omission to deal with the case of contributory negligence. I deal with the latter first.
Having regard to the findings that he made, it seems to me that the judge's failure to deal with the question of contributory negligence was an accidental omission. It does not indicate that he had considered contributory negligence and rejected it. There are two possible aspects of contributory negligence in this case. First, the judge found that Mr. Whittaker had offered the appellant a trestle or scaffold tower, but the appellant had refused, insisting on a ladder. The appellant was an experienced roofer - certainly with more personal experience of roofing and its dangers than Mr. Whittaker. His opinion would carry weight with Mr. Whittaker and, in the circumstances, his strongly expressed preference would amount to contributory negligence. Secondly, the judge found that the accident was caused because the appellant overreached when doing something which he should not have been doing - namely, cutting the slate to size while on the ladder. Mr. Saunt, for the appellant, conceded that this would amount to contributory negligence if that were properly proved, but submitted that that inference as to how the accident happened was an inference too far. I do not agree. The judge had to decide why it was that an experienced man acted in such a way as to topple from the ladder laterally. The appellant's last memory was of working in this manner up the ladder. It was a permissible and sensible inference to draw in those circumstances. Combining both those acts of contributory negligence against the employers' responsibility to protect their employee from the consequences of momentary acts of carelessness or inattention or the taking of foreseeable shortcuts by the provision of a fail-safe system, I would assess the appellant's responsibility for this action as being at 50%.
Lastly, the cross-appeal challenged the judge's assessment of damages, general and special. The respondents' skeleton focused principally on the way the judge had resolved conflicts of medical evidence. These grounds were rightly abandoned as being hopeless. There was a clash of medical opinion. It depended on the judge's view of the witnesses and the credibility of their views. He heard the witnesses and resolved the conflict. There is nothing to suggest he was wrong.
Similar considerations apply to the judge's finding that it is only if the appellant is lucky enough to find a "charitable" employer to put up with his difficult and brain-damaged personality ("which is very unlikely") that he has any earning potential. That was the judge's assessment. He was best placed to make it. He discounted any such prospect. This court, in my judgment, could not possibly say that he was wrong.
Next, loss of earnings to trial. The judge based them on a figure (net after expenses) of £45,000 over 6½ years, or just under £7,000 a year. The starting point for this figure was to gross up his earnings over that part of the financial year 1986-1987 which he had worked, which averaged roughly £45 per day (the rate paid for this job) for a 5½ day week. Grossing it up on that basis, one would get £12,500 on a 50-week year. From that expenses would have to be taken - on the basis of the document at page 99 of the bundle, that would be at about 8% of the gross. But even if it was more, and even when building in a discount for the chances of not being able to find work for 50 weeks in the year, there is plenty in hand, particularly when one considers the evidence that the rate for the job the appellant had done had gone from £45 to £70 a day over those 6½ years. Similar considerations apply to the judge's finding of a £10,000 loss a year thereafter. Those figures are well within the bracket open to the judge on the evidence. Therefore I would dismiss this ground of the cross-appeal also.
LORD JUSTICE AULD: I agree.
LORD JUSTICE NOURSE: I also agree.
Order:appeal allowed with costs; judgment entered for the sum of £102,500 plus interest at the judgment rate from 26.5.93; legal aid taxation of the plaintiff's costs; leave to appeal to the House of Lords refused.
