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Makepeace v. Evans Brothers (Reading) (a firm) and Another (2000), The Times, 13 June
This case involved the hire of a tower scaffold by the defendants to the claimant's employer. The claimant was a painter and decorator on a residential development at Hampton Wick. His employer, Evans, was a sub-contractor on the site, McAlpines was the main contractor. The tower scaffold on which Mr Makepeace was working toppled over but the exact cause was uncertain. Mr Makepeace sustained head injuries in the resulting fall that left him permanently disabled.
In the resulting legal action Evans was found liable in negligence, breach of the Occupier's Liability Act 1957 and for breaches of the Construction (Working Places) Regulations SI 1966 No. 94. Mr Makepeace's action in negligence against McAlpine, the second defendant who had supplied the tower scaffold, was dismissed. However, Mr Makepeace appealed against the dismissal of his claim against McAlpine when he discovered that Evans might be unable to meet the judgment made against them.
The argument for the plaintiff was basically that McAlpine knew that the claimant was going to do something potentially dangerous if he lacked the proper training. Therefore ordinary negligence principles required that they should have enquired of him whether he had been properly trained before permitting him to use the scaffold. The fact that Evans also owed him a duty of care did not negate the existence of the duty of care owed by McAlpine which they were obliged to discharge.
Their Lordships were unanimous in dismissing the appeal. Whilst they all agreed that there could be circumstances in which a main contractor might owe a duty of care to the employees of a sub-contractor, they felt that on balance this was not one of them. The main reason was the finding of the judge at first instance that the tower scaffolding used in this case was "an ordinary piece of equipment of a kind frequently used on building sites by painters". Thus an experienced painter like the claimant could be assumed to know how to use it. To hold otherwise would be to "stretch the nursemaid school of negligence" too far, as Holman J said, quoting a statement by Lord Diplock in Savory v. Holland and Hannen Cubitts (Southern) Ltd (1964) 1 WLR 1158.