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Reconciling Contractors’ liability under Occupiers’ Liability and their responsibility for Health and Safety on Construction Projects.

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Introduction

Recently, Members of Parliament in Uganda were denied entry into a construction site of the Lubowa Specialized Hospital under the pretext that the Members of Parliament were visitors who did not have unfettered access to the construction site. This sparked debate across different platforms where the tax payers were struggling to understand why the MPs who play an oversight role for the government could not access a site of a public project. A number of key questions arose from this debacle: What informs the Contractor’s action of restricting visitors’ access to site? Does this affect a Contractor’s outlook towards Health and Safety protocols on the site?

In trying to understand why visitors do not have unfettered access to construction sites, we need to understand the Contractor’s liability as an occupier under Occupiers’ Liability.

Who is an occupier?

An occupier is defined in the case of Wheat v E. Lacon &Co. Ltd as a person who exercises an element of control over premises. This control includes physical control of premises and legal control of premises as was established in Harris v Birkenhead Corporation. Often, it’s the case that after the commencement order, the Employer hands over the site to the Contractor. This is exhibited, for instance, in Subclause 2.1 of the 1999 FIDIC forms of Contract. It is also a common feature in the JCT forms of contract where the Employer is required to give possession of the site to the Contractor on the Date of possession which is stated in the Contract particulars. In London Borough of Hounslow v Twickenham Garden Developments, it was held that th Contractor was entitled to such possession, occupation or use as was necessary to enable it to perform the contract. The Contractor will then have possession of the site from the date of possession until the date of completion.

Who, then is considered to be a visitor to premises?

A visitor to premises (site) is considered in three categories, namely:

  • Those with express permission
  • Those with implied permission: Implied permission is also subject to limitations which, if exceeded, render the person a trespasser. In Harvey v Plymouth City Council, it was held that any implied permission to enter must be exercised properly.
  • Those with a right to enter: The law gives rights to entry to certain categories of people which render them within the definition of lawful visitors irrespective of the wishes of the occupier for instance police officers entering under warrant.

A duty of care is owed by an occupier to the three categories of persons stated above. Visitors to the site therefore are duly covered under the Occupiers’ Liability Principle. The occupier’s duty is to ensure that the visitor is not injured while on the premises. This can be particularly highlighted for road projects that run over a long distance and are used by different visitors at different times of the day and night. The Contractor has a duty of care towards visitors in the three stated categories. As such, there has been a general shift in Contractors’ mindsets towards Health and Safety Protocols as most contractors have adopted to use preventive measures that will ensure safety for all visitors of the site/ premise. The same applies for building projects.

Regarding the duty of care, although there is similarity with the standard of care in negligence, there is also an important distinction as an occupier is empowered by statute to determine the boundaries of his liability in section 2(1) Occupiers’ Liability Act 1957 in England and Wales for instance. Generally, since the occupier controls the extent of the permission to enter, a visitor who acts in a manner contrary to that permission becomes a trespasser. The issue of the trespasser will be dealt with below.

Since children have access to sites sometimes and are largely considered to be less careful than adults, case law has sought to balance the responsibility between occupiers and parents as was seen in the case of Phipps v Rochester Corporation. Additionally, the level of care expected will depend upon the nature of the risk and the age and awareness of the child. In the case of Titchener v BRB it was held that no duty of care was owed to a 15-year-old boy who was struck by a train while walking on a railway line at night as he was aware of the dangers posed by his activity. A duty will exist if the land/premise holds concealed dangers or allurements that tempt children into danger as was seen in the case of Glasgow Corporation v Taylor.

Use of Warning Signs

Under the Occupiers’ Liability Principle, an occupier has a duty of care towards visitors and it may be satisfied if the occupier displays warning signs or cordons off areas that are dangerous. The following factors need to be taken into account when considering whether a warning sign was enough to enable the visitor to be reasonably safe:

  • A visitor should know what risk he is facing and therefore the warning has to be specific. As such, the Contractor could be liable where there is a deep excavation and he does not alert visitors to the site to it using a specific warning sign.
  • Hidden dangers necessitate greater efforts to call attention to them than readily apparent risks for instance as in the case of Staples v West Dorset District Council in the UK where it was held that risks posed by wet algae on a high wall were so obvious that there was no need for a warning sign. The Ugandan case of Gakumba v Mandela National Stadium Ltd also highlighted the fact that the defendant was liable due to absence of warning signs and security lights where there was an uncovered manhole.
  • Is the sign combined with other safety measures? The use of fencing or barriers emphasizes the need for safety.

Who is a trespasser on a site?

A trespasser is defined in the case of Robert Addie &Sons Ltd v Dumbreck as someone who goes in the premise without invitation of any sort and where presence is either unknown to the proprietor, of if known, is practically objected to. As such, it is true that in instances, a Contractor has limitations on who enters the premise(site). The key question then arises as to whether a Contractor bears liability on injuries to trespassers.

The approach taken by the courts to determining liability towards trespassers can be seen in Young v Kent County Council. The issues of liability of injuries caused to child trespassers was further explored by Court of Appeal in Keown v Coventry Healthcare NHS Trust. Keown makes an important distinction between injury caused by the danger caused by the state of the building and the dangerous use of perfectly well-maintained premises. This was also seen in Tomlinson v Congleton where it was held that injuries arising from the claimant’s dangerous use of otherwise safe premises will not give rise to liability under the Occupiers’ Liability Principle.

Conclusion

The contractor, as an occupier, has a duty of care to keep visitors under different categories safe while they use the site. This can have lasting effect on the Contractor’s Health and Safety protocols as a way of dealing with this liability. Contractors are therefore encouraged to develop robust Health and Safety Protocols in order to keep workers and visitors safe while they use the site premises. Additionally, visitors are encouraged to act within the ambits of the set protocols and warning signs while accessing a construction site given the high risk of injury on construction sites.

One response to “Reconciling Contractors’ liability under Occupiers’ Liability and their responsibility for Health and Safety on Construction Projects.”

  1. Gilbert Mateka Avatar
    Gilbert Mateka

    It’s enriching to understand the 3 different categories of visitors to a construction site; those express permission, implied permission and those with right to enter. The article is a good digest of the subject ” tresspasser” under Occupier’s Liability. Good one @ CG Engineerring consults. Keep adding to existing body of knowledge in construction law.

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