Cleightonhills v Bembridge Marine Ltd & Others

[2012] EWHC 3449 (TCC)

This case arose out of a serious accident at a boating yard. A young employee was asked to assist in manhandling a boat from an external grated first floor gantry platform into the adjacent workshop. The platform and the workshop had recently been designed and constructed. As the employee pushed the boat in on its trolley, the floor grating moved beneath him and he fell beneath the gantry onto the floor some 11 to 12 feet below; the loose grating panel fell onto him. He suffered very severe traumatic brain injuries. Damages for personal injury in excess of £7million were agreed against the boatyard owner who then brought proceedings against those who were involved to a greater or lesser extent in the design, construction or supply of the building of which, as the Judge noted, the first floor external gantry platform was a relatively minor element in structural terms.

Proceedings against the designer and the structural engineer were settled by agreement for £2 million and £1.8 million respectively plus costs. This left claims against the subcontractor for the supply and construction of the platform, the subsub-contractor for the fabrication of certain platform elements and the draughtsman who prepared detailed fabrication and working drawings. These third parties accepted that they owed a duty of care to the injured employee. When it came to the scope of that duty, Mr Justice Akenhead noted that:

(i) When one is concerned with a duty of care, particularly in a construction context involving duties owed by parties who are only involved at all by reason of the contracts which they have entered into, the Court needs to consider the contractual context in which such parties were involved in the first place.

(ii) Whilst the scope of the duty of care can be limited by contractual exclusions or limitations of liability, the Court needs to consider what the scope of a tortious duty of care is. That scope is primarily determinable by reference to what the party owing the duty is at least broadly employed to do or actually does.

(iii) It does not follow that if a party is in breach of the contract pursuant to which it is involved in the project in question, it will be in breach of a duty of care owed to someone who is not a party to that contract.

Here, the complaint against each of the third parties was that they failed to appreciate that the actual intended uses to which the platform was to be put were such that, without more than was expressly specified, the platform could fail and thus foreseeably cause injury to anyone who happened to be on it at the time. Mr Justice Akenhead held that all three third parties exercised all the reasonable care and skill which might reasonably have been expected of them in doing what they were employed to do and in what they actually did. The real problem was the failure on the part of the primary designers to understand and provide for the likely horizontal or lateral loads that would be applied by the specific uses to which the platform was to be put. The design did not allow for the foreseeable horizontal movements to which the grating would be subjected both by the weight of the boats, the dynamic loads caused by the boats being dropped onto the trolley and then dragged over the holes in the grating, or for the damage to which the platform would be subjected by the particular forklift truck that was in use.

Further, the Judge said that there could be no criticism of the third parties for not warning those further up the line that there was a potential problem. Indeed, they could not be criticised for failing to appreciate that there was any need to warn at all. There was nothing on the documents which would have alerted otherwise reasonably competent and careful parties to the fact that the platform was under-designed. Where a construction contract does not spell out everything which is to be provided, Mr Justice Akenhead noted that:

“that which is not expressly specified but which is necessary must be reasonably suitable for what can otherwise be gleaned as the purposes for which the building or at least the unspecified element is to be used. Where those purposes are expressly spelt out in the contract documentation or where there is reliable evidence that those purposes (if not so spelt out) were communicated to the contractor prior to the contract, those will be the purposes to which reasonable suitability relates. “

For example, a party might reasonably be expected to pick up an obvious error in the design (i.e. a missing beam or column), they would not be expected to cross check and ascertain what the unexpressed design assumptions (if any) were. There was also a very real doubt that if a “warning” had been given, anything would have been done. A problem with the handrail was specifically raised but there was no change. There was also a discussion about the duty to warn and here the Judge noted that:

“there can be little doubt that a failure to warn in the case of potential danger to human beings may give rise to a breach of any duty of care owed to a third party by a party who knows of the danger. I use the word ‘may’ because it is necessary always to review all the circumstances and there might be circumstances which justify not warning. Where the parties are in contract, the duty to warn may extend to dangers of which the party in question should have been aware by reason of its involvement…In purely tortious circumstances, any duty to warn may not in fact extend to warning the class of persons who might be affected by the danger; it may be limited to warning the party with whom the person required to warn is in contract or to warning the local authority.”

Back to the previous page

Click to download PDF