A judge has disagreed with company’s argument that it did not have control of the workplace, so no duty was owed.
R H Ovenden Ltd, a haulage and plant hire firm in Kent, England, and Mr Rian Hamilton, a subcontractor, were found to be negligent after an aircraft engineer sustained life-changing injuries in an explosion. On 3 February 2015, the engineer, Paul Chadwick was working at Manston Airfield in Kent, dismantling a retired DC8 aircraft. While using an angle grinder to cut through a metal sheet, he also cut through an oxygen cylinder behind it, causing an explosion.
He was airlifted to hospital and spent two weeks in intensive care. He underwent multiple major operations and now has permanent damage to his eyes. He has been unable to work since the accident.
Chadwick brought a claim for damages against Ovenden, arguing the company owed him a duty of care as it was in control of the workplace and should have taken reasonable measures to ensure its safety, but had failed to do so. He also brought a claim against Rian Hamilton, his employer, on the same grounds.
Both defendants denied liability. Ovenden argued it did not have control of the workplace, so no duty was owed, and even if it did, Chadwick’s actions were reckless and broke any chain of causation. Furthermore, it argued it would only have to take steps in relation to foreseeable risks, and the presence of the oxygen cylinder was not foreseeable.
Hamilton made the same arguments, while also claiming that he was not Chadwick’s employer and that the claimant was self-employed or employed by another party, so he had not breached any duty owed.
On appeal, the High Court found that Ovenden had a contract with the airfield to dismantle the aircraft and a number of obligations relating to risk assessments, site safety and obtaining adequate insurance. This contract was in place until at least the date of the accident. Hamilton was self-employed and subcontracted by Ovenden to dismantle the aircraft. Under the terms of the subcontract, Ovenden was obliged to make a safety inspection to ensure the aircraft was safe before dismantlement work started and retained a significant amount of control over the aircraft.
The judge then considered whether Chadwick was in fact an employee of Hamilton. Although there was no written contract with Chadwick either of employment or as a contractor, the judge found cumulative and overwhelming evidence that he was indeed an employee on a contract for the duration of the dismantlement. Regarding the question of a duty of care owed to Chadwick, the judge ruled that Ovenden was in control of the work premises and so owed a duty of care, as did Hamilton as his employer.
Both defendants claimed the presence of the oxygen cylinder was not reasonably foreseeable. However, both agreed it was foreseeable that the aircraft would contain dangerous substances, and a risk assessment by Ovenden had specifically identified ‘items with a potential to explode’, stating that these would be removed. The judge ruled it was entirely foreseeable that the aircraft, a former airliner, might contain oxygen cylinders.
The judge ruled in favour of Chadwick. He had not acted negligently and did not contribute to his injuries, meaning there was no break in the chain of causation. Both defendants were found to have failed to take reasonable steps to prevent harm.