Annie Mackley considers the recent judgment of Lewin v Gray  EWHC 112 (KB) (25 January 2023)
The recent decision of HHJ Robinson in Lewin v Gray  EWHC 112 (KB) provides useful guidance on the application of section 69 of the Enterprise and Regulatory Reform Act 2013 and the Construction (Design and Management) Regulation 2015 (“the Regulations”) in the context of personal injury claims. The decision is likely to be welcomed by defendants and their insurers, albeit some grey areas remain in relation to the interplay of civil and criminal liability for breaches of the Regulations.
The Claimant in this case was an experienced self-employed builder, who was contracted by the Defendant to carry out some guttering work on a barn. The barn had a fragile roof, which was known to both parties. Tragically, the Claimant fell through the roof while reaching for some guttering on 18 January 2018, suffering catastrophic injuries.
The claim initially was framed both under the Occupier’s Liability Act 1957 and in negligence. As regards the allegations of negligence, the Claimant relied on alleged breaches of the Regulations, alleging that the Defendant had failed in selecting a suitable contractor, supervising the contractor and ensuring that the contractor had completed a Construction Phase Plan. Following oral evidence, however, most of these allegations fell away – HHJ Robinson held that the Claimant was clearly “the ideal choice of contractor for this job” (at ) and that it would have been “an impertinence” (at ) for the Defendant to have purported to supervise his work. It was also held that no breach of the Occupier’s Liability Act 1957 had occurred, since it was reasonable for the Defendant to have expected the Claimant to appreciate and guard against the risks of performing the guttering work, in accordance with section 2(3)(b) of the Occupier’s Liability Act 1957. The sole remaining allegation therefore remained that the Defendant had breached a common law duty of care owed to the Claimant by failing to ensure that he had produced a Construction Phase Plan, contrary to Regulation 4(5) of the Regulations.
HHJ Robinson considered that the sole matters for determination were, first, whether the Defendant owed the Claimant a duty of care in tort to ensure that he produced a Construction Phase Plan, and, if so, whether that failure caused or materially contributed to the accident.
In relation to the first issue, HHJ Robinson found that no tortious duty of care arose. According to section 47 of the Health and Safety at Work Act 1974 as amended by section 69 of the Enterprise and Regulatory Reform Act 2013, no breach of a duty imposed by health and safety regulations would be civilly actionable save to the extent provided by regulations made pursuant to that section. Given this express provision, no civil liability arose in this case in respect of the facts giving rise to the breach of the Regulations (at ).
This was notwithstanding the Claimant’s argument that the Defendant could have been criminally convicted in respect of his admitted breach of Regulation 4(5) of the Regulations and that such a conviction could have been used as evidence in the civil proceedings. As HHJ Robinson noted, such a conviction could only be used to prove that such an offence had been committed pursuant to section 11(1) of the Civil Evidence Act 1968. As it was admitted that the Defendant had failed to ensure that the Claimant had produced a Construction Phase Plan, any criminal conviction would have been evidentially superfluous and, in any event, the Defendant had not in fact been prosecuted or convicted.
Accordingly, HHJ Robinson found that no liability lay with the Defendant. In the event that this conclusion was wrong, however, he also held that producing a written Construction Phase Plan would not have prevented the accident from occurring by prompting the Claimant to ask for a crash deck to be placed in the barn. There was nothing in a written Construction Phase Plan which would have alerted the Claimant to the need for a crash deck or prompted him to depart from his usual practice and personal risk assessments. In the event that a duty of care did exist, the claim therefore would have failed on the grounds of causation.
The decision in Lewin v Gray will undoubtedly be welcome to defendant occupiers and their insurers in two respects. The first is that it confirms that breaches of the Regulations will not automatically give rise to civil liability. The effects of section 69 of the Enterprise and Regulatory Reform Act 2013 were not analysed in length in the judgment but it was made clear that judges ought not to override the express statutory scheme by creating duties of care where none would otherwise arise. This chimes with the growing number of judgments on the effects of section 69 of the Enterprise and Regulatory Reform Act 2013 which hold that breaches of health and safety regulations may be relevant as evidence of negligence but will not constitute negligence in and of themselves (see, for recent examples, Jagger v Holland  EWHC (QB) and Harris v Bartrums Haulage and Storage Ltd  EWHC 900 (QB)).
The second is that the judgment provides useful guidance on the effects of criminal convictions for breaches of the Regulations to civil proceedings. The relevance (or otherwise) of a conviction will depend on whether a defendant has, in fact, been convicted of an offence under the Regulations. Where a defendant has been convicted of an offence, Lewin v Gray is clear that the effect of a criminal conviction pursuant to section 11(1) of the Civil Evidence Act 1968 is merely to provide evidence of the facts which underlie it. It follows that a criminal conviction does not, in itself, prove negligence on behalf of a defendant.
This was not, however, the position in Lewin v Gray itself – the Defendant was liable to be prosecuted and convicted but (for unknown reasons) no such prosecution had been pursued. The Claimant had asked the court to find that the Defendant had failed to meet the standard of care expected of the criminal law and that this made it fair, just and reasonable to impose liability on the Defendant. HHJ Robinson considered that “the decision to prosecute is a discretionary one” and it was “idle to speculate” why no prosecution had been pursued in this case (at ). He did, however, consider that “the relevant authorities saw no reason (so it appears) to institute criminal proceedings against the Defendant” (at ) and that this contributed to his finding that it would not be fair, just and reasonable to impose liability.
The underlying suggestion appears to be that it would be inappropriate for a civil court to determine whether criminal liability could – or should – have arisen, particularly in circumstances where this is only tangentially relevant to the question of whether civil liability should be imposed. HHJ Robinson’s willingness to accept, however, that a decision not to prosecute points away from the imposition of civil liability somewhat undermines this view. It remains to be seen whether this approach could be taken in cases involving failed or abandoned prosecutions or, conversely, cases in which a successful prosecution might point towards the imposition of a novel duty of care (quite separately from its evidential value). A more principled approach may therefore be to maintain the clear separation between civil and criminal liability at which HHJ Robinson initially hints.