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Unhappily, much litigation from the construction industry deals not with buildings but with injuries, writes Sue Lindsey.

Two recent cases (Hood v Mitie 01.07.05 and James v Butler 17.05.05) arrived at opposite results, and illustrate some of the legal principles that apply.

Mr Hood worked for Mitie.

On its behalf, he ventured onto a roof belonging to the Post Office. Mitie failed in its claim that the Post Office was in part responsible for Mr Hood's injuries after he fell through a rooflight that he was waterproofing.

Mr James agreed to pay his neighbour, Mr Butler, £300 to put up a conservatory. James helped with the work. While James had gone to make a cup of coffee, Butler, having finger-tightened a screw holding a rafter in place, descended from his ladder to fetch a screwdriver to fix it properly. At that moment James arrived with the coffee, looked up, and the rafter fell, injuring his eye.

Was there a duty of care?

In James the Court of Appeal said yes. Furthermore, it said it was not right that Butler should be judged by the lower standard of a general labourer rather than as a professional contractor. The law calls for an objective standard which relates to the type of activity, rather than the category of actor to which the defendant belongs.

There was no common law duty of care on the Post Office in Hood. The Post Office was not Hood's employer. As the building occupier, the Post Office was fully entitled to expect Mitie to guard against any special risks incidental to its job.

The complaint against Butler was that he had done something badly. He believed he had secured the screw when in fact he had not. The Court of Appeal decided it was not reasonable for him to have believed that the rafter was secure: 'Anyone inserting a screw into a hole and turning it by hand can tell when it has engaged.' The complaints against the Post Office were mainly about things it had not done. It did not tell Mitie the roof was fragile, or put warnings on the roof. The judge decided that while these failings might give rise to a liability to some visitors, Hood was an experienced roofer to whom the risks were obvious.

Butler tried to argue that James contributed to his own accident. But the Court of Appeal said it was unreasonable to expect James to seek permission to walk into the conservatory given that he had been working there for much of the day.

In Hood the judge concluded that Mitie was responsible to a high degree for what happened. The system used was appalling. Hood and his colleague accessed a pitched roof made of asbestos-cement panels with Perspex rooflights using a single ladder hooked over the apex. They set about applying waterproofing materials, including bitumen in a 25kg drum. They walked on the roof along the lines of bolts, listening out for any cracking of the panels. Hood lost his balance and fell through the rooflight onto a concrete floor 11m below.

All of which shows that the courts apply a lot of common sense in analysing where fault lies. Sadly, just a little more common sense might have avoided these accidents in the first place.

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