Winn-Pope v ES Access Platforms Ltd

Factual and Procedural Background

The case concerns an action for damages for personal injury brought by the Plaintiff against the Defendant firm of surveyors (the second Defendant), with the first Defendant having been previously dismissed from the proceedings. The Plaintiff was employed as a mobile plant operator by the first Defendant, a company specialising in the hire of vehicle-mounted elevating work platforms ("MEWPs"). On 20 March 2007, the Plaintiff was instructed to operate a MEWP to assist the second Defendant's employees in surveying the roof of a building. During this operation, the Plaintiff left the safety of the MEWP basket, climbed onto the roof, and subsequently fell approximately seven metres after stepping on a fragile roof-light, sustaining orthopaedic injuries.

The second Defendant had not conducted a risk assessment or prepared a method statement prior to the survey. The Plaintiff did not wear a safety harness contrary to the first Defendant’s instructions. The Plaintiff’s fall and injuries are the subject of this litigation, with liability and damages being the core issues. The first Defendant was dismissed from the case following a Minute of Abandonment by the Plaintiff, leaving the second Defendant as the sole Defendant before the court.

Legal Issues Presented

1. Whether the second Defendant owed statutory duties under the Work at Height Regulations 2005 to the Plaintiff in respect of the work carried out.
2. Whether the Plaintiff was "under the control" of the second Defendant for the purposes of the Work at Height Regulations 2005.
3. Whether any breach of statutory duty by the second Defendant caused or contributed to the Plaintiff’s accident and injuries.
4. Whether contributory negligence by the Plaintiff should reduce or extinguish any damages recoverable.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff’s accident was caused by breaches of specific duties under regulations 4, 5, 6, 7, 9, 11, and 14 of the Work at Height Regulations 2005 by the second Defendant.
• Although the Plaintiff was not an employee of the second Defendant, the Regulations impose duties on any person who has control over the worker, which the second Defendant had in relation to the surveying work.
• The Plaintiff was engaged in the surveying work under the control of the second Defendant, who organised the work and selected the equipment.
• The second Defendant could not escape liability by failing to exercise control if such control existed.
• Contributory negligence, if any, did not exceed 50%.
• Relied upon precedents including Lynch v Ceva Logistics Ltd, Tafa v Matsim Properties Ltd, Majrowski v Guy's & Thomas NHS Trust, and Donaldson v Hays Distribution Services Ltd.

Defendant's Arguments

• The Plaintiff’s failure to give evidence and the decision not to call him as a witness justified drawing adverse inferences against the Plaintiff’s case.
• For the second Defendant’s duties under the 2005 Regulations to apply, the Plaintiff himself—not just the work—had to be under the second Defendant’s control, which was not the case.
• The first and second Defendants had distinct roles; the first Defendant provided and operated the MEWP, while the second Defendant conducted the survey.
• The second Defendant’s employees had limited practical ability to control the Plaintiff’s operation of the MEWP or safety compliance.
• The Plaintiff’s autonomous decision to leave the basket and walk on the roof was the effective cause of the accident.
• Any duties of training or instruction were not causally connected to the accident due to the Plaintiff’s disregard for instructions and training.
• In the event of liability, a substantial or complete reduction of damages for contributory negligence was appropriate, citing McEwan v Lothian Buses and Pitt v Hunt.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Lynch v Ceva Logistics Ltd [2011] ICR 746	Statutory duties under health and safety regulations and employer liability.	Referenced by Plaintiff to support the imposition of duties on parties with control over workers.
Tafa v Matsim Properties Ltd [2011] EWHC 1302	Application of control and duty under health and safety regulations.	Referenced by Plaintiff in relation to control over persons at work.
Majrowski v Guy's & Thomas NHS Trust [2007] 1 AC 224	Employer liability for workplace harm.	Referenced by Plaintiff to support employer duties.
Donaldson v Hays Distribution Services Ltd 2005 1 SC 523	Interpretation of control and statutory duties under the Work at Height Regulations.	Considered by the court in determining the scope of control required for duties to apply.
Ross v Associated Portland Cement Manufacturers 1964 1 WLR 768	Adverse inferences from failure to give evidence.	Applied by the court to justify drawing unfavorable inferences against the Plaintiff.
O'Donnell v Murdoch McKenzie & Co Ltd 1967 SC (HL) 63	Adverse inferences from failure to give evidence.	Applied alongside Ross to assess credibility and evidential weight.
McWilliam v Sir William Arrol 1962 SC (HL) 70	Requirement to prove that instructions would have been heeded to establish liability.	Referenced by Defendant to argue lack of causal connection due to Plaintiff’s non-compliance.
McEwan v Lothian Buses 2006 Rep.LR 134	Contributory negligence and reduction of damages.	Referenced by Defendant to support substantial or total reduction of damages.
Pitt v Hunt [1991] QB 24	Approach to contributory negligence.	Referenced by Defendant in relation to apportionment of liability.
Boyle v Kodak Ltd [1969] 1 WLR 661	Employee fault as a complete defence to statutory breach claims.	Discussed by court in relation to potential complete defence arising from Plaintiff’s fault.

Court's Reasoning and Analysis

The court focused on whether the second Defendant owed duties under the Work at Height Regulations 2005 to the Plaintiff, who was not their employee but was engaged in work at height on their behalf. The Regulations impose duties on employers and also on any person who has control over a worker to the extent of that control.

The court analysed the nature of the Plaintiff’s role and the relationship between the parties. It was found that the Plaintiff was employed by the first Defendant, who provided the MEWP and trained the Plaintiff. The second Defendant’s role was limited to conducting the survey, and the Plaintiff’s role was to operate the MEWP to facilitate this survey.

The court rejected the Plaintiff’s broader hypothesis that the second Defendant controlled the work generally, and also the narrower hypothesis that the second Defendant’s employee exercised control over the Plaintiff when the latter was on the roof. The Plaintiff’s decision to leave the basket and climb onto the roof was autonomous and not part of the organised work under the second Defendant’s control.

The court accepted that the second Defendant owed duties to their own employees conducting the survey, but these duties did not extend to the Plaintiff in respect of his separate function. Attempts by the second Defendant’s employee to direct the Plaintiff off the roof were not considered an exercise of control but an effort to prevent harm.

Given these findings, the court concluded that the statutory duties under the Work at Height Regulations 2005 were not owed by the second Defendant to the Plaintiff in relation to the work he was doing. Consequently, the court did not address causation or contributory negligence in detail, though it noted that the Plaintiff’s actions were foolish and could have justified a complete defence had the duties applied.

Holding and Implications

The court’s final decision was to DISPOSE OF the Plaintiff’s claim against the second Defendant by assoilzieing (absolving) the second Defendant from the conclusions of the summons.

This ruling means that the second Defendant is not liable for the Plaintiff’s injuries under the Work at Height Regulations 2005 because the Plaintiff was not under their control in relation to the work performed. The decision does not establish new precedent but clarifies the application of control in the context of statutory duties under the Regulations, emphasizing the importance of the factual relationship and roles between parties in determining liability.

All questions of expenses were reserved by the court.