The respondent had agreed to erect a conservatory for the appellant. During the works the respondent had climbed a stepladder and had rested the inner end of a rafter on a lip or flange, which ran round the spider. The respondent inserted a fixing screw, which was supposed to secure the end of the rafter to the spider, and had thought that he tightened it by hand until it had engaged.
He then descended the ladder in order to fetch the screwdriver, with which he intended to tighten the screw firmly. While the respondent was climbing back up the ladder the appellant stepped into the conservatory. At that moment the strut fell and the appellant sustained serious injuries to his eye.
The appellant brought legal proceedings against the respondent in respect of the incident. The recorder found that the respondent owed the appellant a duty of care and that the relevant standard was that appropriate to a general labourer. The respondent agreed that he had owed a duty of care but maintained that he had discharged that duty by finger tightening the securing screw to prevent the strut falling.
The recorder found that it was reasonable for a general labourer to believe that by finger tightening the screw the rafter would be safe for such short time. The recorder added that if his findings as to liability were wrong then the appellant had contributed to the accident to the extent of 50% by entering the conservatory before ensuring that it was safe to do so.
The appellant challenged the recorder鈥檚 findings both as primary liability and contributory negligence. The appellant contented that the recorder wrongly treated the respondent as an unskilled neighbour helping out a friend, when in reality he was quite experienced in a variety of building tasks and had contracted to undertake the work.
Reference
The court held that the recorder was entitled to take the view regarding the applicable standard of care owed by the respondent. However, the recorder was not entitled, on the evidence before him, to conclude that it was reasonable for the respondent to have believed that he had secured the screw when in fact he had not. There was no evidence on which to base that conclusion.
In the absence of evidence to the contrary, it should have been concluded that the task of inserting and finger tightening the screw so as to provide temporary security was so simple that it fell well within the capability of all but the most inexperienced of handymen. Further, on the evidence available there was no evidence on which the respondent鈥檚 error could have been excused as reasonable. Accordingly the recorder鈥檚 findings on liability could not stand.
In respect of contributory negligence, the court held that it was not reasonable to expect the appellant to stop and seek permission to enter the conservatory before actually doing so. In those circumstances there did not seem to be a proper foundation on which to base a finding of contributory negligence and the court held the respondent wholly responsible for the incident.
*Full case study
Court of Appeal, Civil Division, Lord Justice Sedley, Lord Justice Rix, Lord Justice Smith [2005] EWCA 1014
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Postscript
The essential finding of the recorder was that because the respondent was a general labourer and not someone more experienced, it was reasonable for him for him to think that the rafter would be safe for a short while.
The Court of Appeal however pointed out that the objective standard required by law is one which relates to the type of activity in which a defendant is engaged rather than the category of actor to which the defendant belongs. This meant that the respondent was to be judged by the degree of care and skill which a reasonably skilled DIY enthusiast constructing a conservatory might expect to apply to the work in question. In the present case it was nothing more than common sense to understand that there was a risk of the rafter falling unless it was sufficiently secured, even for a short period, while the screwdriver was fetched in order to secure it permanently in place.
