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CALL TO ACCOUNT

LEGAL

'Health and safety' seems to have become a universal bar against doing all manner of what used to be everyday acts, writes Kim Franklin. This was brought home to me when attending a residential art course during the summer.

The assembled students were prevented from using fixative on their charcoal drawings, or from having beverages in the studio for 'health and safety reasons'. Closer enquiry revealed that drinks in the classroom present the risk of a student accidentally taking a swig of their paint water, or worse. The fact that I once bit into a brown pastel stick thinking it was a KitKat finger is, of course, beside the point.

In Mistry v Thakor (judgment 05.07.05), 'health and safety' reasons were used by a chartered surveyor to avoid doing what property managers do all the time. As a result, he was found liable for the lion's share of the claimant's damages.

The defendants owned a commercial property in Leicester, which was managed for them by chartered surveyor Michael Roberts. The building, which was built in the l960s, was faced with concrete panels at the upper levels, held by fixings onto a steel angle. These panels weighed about 50kg each. Over time, the fixings had corroded and pushed the panels out of vertical and off the base angle. In the words of one expert, 'the slabs must have just slipped off the corroded edge of the base angle'. The unfortunate claimant was passing the building at the time the panels fell and suffered serious injury, resulting in amputation.

So who was to blame?

The claimant alleged that the defendants knew, or ought to have known, of the dangerous condition of their building. The owners argued that their surveyor ought to have warned them after inspecting the property the previous year. It was clear then that the panels had moved and their condition ought to have rung alarm bells to someone in Roberts' position.

Roberts relied upon his schedule of dilapidations, in which he had strongly advised that the panels be examined by a builder. He concluded:

'I am unable to carry out any inspection which will have to comply with health and safety.' Roberts' reluctance to inspect the upper levels was all the more unusual because there was scaffolding up at the time.

In court, Roberts explained that his concern with 'health and safety' was not the health and safety of the public, or the risk to those using the highway, but his own health and safety.

Roberts' behaviour in the circumstances was described by one of the experts as 'bizarre'.

His unwillingness to go up the scaffolding was, the Court of Appeal observed, extremely unusual conduct on the part of a chartered surveyor. It was a major factor in the court's decision to hold Roberts liable for 80 per cent of the claimant's damages.

It seems, therefore, that whatever the health and safety considerations may be, there are some things building professionals are just expected to do.

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