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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Matthews v. Glasgow City Council [2006] ScotCS CSIH_1 (05 January 2006) URL: http://www.bailii.org/scot/cases/ScotCS/2006/CSIH_1.html Cite as: [2006] ScotCS CSIH_1, [2006] CSIH 1 |
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Matthews v. Glasgow City Council [2006] ScotCS CSIH_1 (05 January 2006)
INNER HOUSE, COURT OF SESSION
| Lord President Lord Osborne Lord Kirkwood |
[2006] CSIH 1 XA141/04 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL From the Sheriffdom of Glasgow and Strathkelvin at Glasgow in the action at the instance of ANDREW MATTHEWS Pursuer and Appellant; against GLASGOW CITY COUNCIL Defenders and Respondents: _______ |
Act: Ellis, Q.C., Forsyth; Balfour & Manson (Dallas McMillan, Glasgow) (Pursuer and Appellant)
Alt: Peoples, Q.C.; City of Edinburgh Council, Edinburgh (Defenders and Respondents)
5 January 2006
The background[1] On 15 May 1997, the appellant was working in the course of his employment with the respondents as a painter and decorator in their local repair team. He was based at the respondents' premises in Westmuir Street, Parkhead, Glasgow. He had worked there for about 7 years. At the material time they were the proprietors of numerous residential properties throughout Glasgow, including various high-rise blocks of flats. In particular, they owned properties in Bluevale Street and Whitevale Street, Parkhead. Many of these properties were, in turn, let out to tenants. [2] Flat 13 - House 2 at 109 Bluevale Street, Parkhead, Glasgow, was owned by the respondents. It had been let out to a tenant, Robert Glen. Some time prior to the accident to which we later refer, Mr. Glen had abandoned the property. In consequence, the respondents had forced entry to it on or about 17 December 1996. The accommodation within flat 13 consisted in a hallway, a livingroom, one bedroom, a bathroom and a kitchen. There was also a veranda to which access could be gained from the livingroom. [3] The abuse of controlled drugs was, at the material time, a common feature of life in the Parkhead area of Glasgow. Drug abuse regularly took place within the Bluevale and Whitevale Street flats, including those let out by the respondents. There was a high turnover in tenancies. However, the respondents had been unaware that flat 13 and its associated landing had been adversely affected by drug abuse and related problems during the course of the currency of Robert Glen's tenancy. [4] In general, following the removal of a tenant from a property owned by the respondents, various steps were taken by them prior to the property being re-occupied. In particular, the property was secured and thereafter inspected by a representative from the respondents' Housing Department. A clear-out of the property was then instructed, which was carried out by labourers employed by the respondents. Once a property had been cleared out, tradesmen, such as the appellant, were sent in to it to carry out all and any necessary repairs and redecoration work. Unfortunately it was a common occurrence for used hypodermic needles to be discovered within void properties. Discarded needles were left in drawers and cupboards and also placed above doorways, under sinks and in such a way as to protrude from furniture. [5] Consequent upon Robert Glen's abandonment of flat 13, the external door lock was changed on 17 December 1996. Thereafter the property was inspected by Martha McGuiness, the respondents' Housing Officer for the Parkhead area on 18 December 1996. On 19 December 1996, as a result of that inspection, certain repairs were ordered. The inspection carried out by Mrs. McGuiness was focused upon the fabric of flat 13 and its general conditions. Subsequently, arrangements were made for the reletting of the flat. The new tenant was due to take entry a few days after 15 May 1997. On that date, the appellant attended at flat 13 on his own, in order to undertake painting and decorating work there. He brought with him the equipment and materials required to carry out his work; in addition, he had two portable lamps, as there was no electricity within the flat. At that date the concrete floors of the flat were bare and there was no furniture within it. A small electric fire was attached to the window wall of the livingroom. This fire had three elements in it, with a reflective metal panel located to the rear of these elements. A number of metal spars were fixed in place over and above the elements in order to provide protection from them when heated. [6] In order to gain access to the higher parts of the livingroom walls, the appellant used a pair of stepladders with six rungs. He placed the stepladders in front of the electric fire. They were side-on to the wall on which the fire was located. The appellant then climbed the stepladders in order to start soaking the wallpaper at the top of the wall, with a view to its removal. He then descended the stepladders. As he did so, he felt a jag on the left side of his left knee. At the material time the appellant was wearing overalls and trousers. Having stepped off the stepladders and put down the bucket which he had been carrying, the appellant moved the stepladders out of the way. He then looked closely at the electric fire and noticed a hypodermic syringe and needle resting on, or jammed into, one of the elements of the fire. The needle attached to the syringe protruded about an inch beyond the fire guard. The appellant had been struck by the needle as he had descended the stepladders. It is a matter of agreement that, as a consequence of the accident just described, the appellant sustained loss, injury and damage, which may reasonably be assessed in the sum of £20,000, inclusive of interest to 17 November 2003. [7] Following the accident described, the appellant raised the present action of reparation against the respondents, in which he sought damages from them in respect of the consequences of it. In the action, the appellant stated two grounds upon which he contended that the respondents were liable to pay damages. The first of these was a case of fault at common law, elaborated in Condescendence 4 of the initial writ. It is unnecessary to say anything concerning that case, since, after proof, it was rejected by the sheriff and that decision was not challenged before us. The appellant's second ground of action, specified in Condescendence 5, was an alleged breach of statutory duty on the part of the respondents. The appellant's statutory case was that the respondents, as employers of the appellant, who had been engaged in construction work, were required to comply with the terms of the Construction (Health, Safety and Welfare) Regulations 1996. He contended that the respondents had been in breach of regulations 5(2) and 5(3). After proof, the sheriff concluded that the 1996 Regulations had not applied in the circumstances of this case, for reasons which he specified at pages 20 and following of his decision. However, the sheriff stated at page 22 that:
"Had the 1996 Regulations been applicable to the circumstances of the pursuer's accident, I would have found in his favour. There was no dispute that the pursuer had sustained an accident at work. Furthermore, that accident arose because his place of work had not been made and kept safe for him. In such circumstances, following the approach taken by the Extra Division in Mains [Mains v Uniroyal Englebert Tyres Ltd. 1995 S.C. 518], the onus of proof switched to the defenders. They required to exculpate themselves from liability under Regulation 5(2) by establishing the defence of reasonable practicability. However, as counsel for the pursuer submitted, neither the defenders' pleadings nor the evidence elicited in the course of the proof provided proper foundation for the establishment of such a defence and that proposition was, to all intents and purposes, conceded by Mr. Hennesy notwithstanding his reference to the English case of Wharton [Wharton v Caplin Contracts Ltd., 8 November 2002, unreported, Court of Appeal]."
Submissions for the appellant[8] When this appeal came before us, senior counsel for the appellant explained that the only controversial issue was whether the 1996 Regulations applied so as to impose statutory duties on the respondents at the time of the appellant's accident. His motion was for the recall of the interlocutor of the sheriff of 23 July 2004 to the extent of (1) sustaining the appellant's plea in law 1 in relation to the statutory case; (2) sustaining the appellant's plea in law 4 to the extent of the agreed damages; (3) repelling the respondents' pleas in law in relation to the statutory case; (4) granting decree for £20,000 in favour of the appellant, together with interest from 17 November 2003; and (5) finding the appellant entitled to the expenses of the Sheriff Court procedure. [9] Senior counsel explained that his submissions would fall into three parts: (1) the identification of the important parts of the pleadings and findings in fact and examination of the sheriff's reasoning; (2) consideration of the relevant regulations themselves and the formulation of the correct construction of those regulations in relation to the issue; and (3) criticisms of the sheriff's reasoning. [10] Senior counsel began by an examination of the averments in Condescendence and Answer 2 concerning the circumstances of the appellant's employment and the accident. At the material time the appellant had been working in the course of his employment stripping wallpaper from the walls of flat 13. The circumstances of the appellant's working context were admitted. Senior counsel went on to draw attention to the averments made in Condescendence 5, in which regulations 5(2) and 5(3) were founded upon. He pointed out that the respondents denied that the Regulations were applicable in the circumstances of the case; furthermore there were no averments to support a defence of reasonable practicability, which, at the proof, had not been insisted upon. It was clear from the sheriff's own decision that, if the 1996 Regulations applied, they were breached. Senior counsel then went on to examine the sheriff's findings in fact, the relevant substance of which we have already narrated in the introduction to this Opinion. [11] Senior counsel next turned to examine the sheriff's reasoning, which ran from pages 20 to 23 of his decision. It was the essence of the appellant's position that "redecoration", in which the appellant had undoubtedly been engaged, was "construction work" within the meaning of the Regulations by provision. The flat in which he had been working was also a "construction site". In fact it did not matter whether the flat was or was not a "construction site", but it was submitted that, in the particular circumstances of this case, it was. [12] At the bottom of page 21 and the top of page 22 of the sheriff's decision he had said this:
"I do not consider that it is open to such a party to argue that he was, for instance, painting and decorating a room within an existing domestic dwellinghouse and that because he was involved in 'redecoration' the 1996 Regulation applied. In my opinion, that would amount to an absurd and erroneous approach to the application of these Regulations."
It was submitted that that proposition was wrong. The appellant's position was that he was a person employed doing redecoration of a structure. He had been injured by a danger arising from the place where he had been working. That state of affairs gave rise to liability on the part of the respondents, as his employers.
[13] Senior counsel then moved on to the second chapter of his submissions, a detailed examination of the terms of the Regulations themselves. Regulation 3 of the Construction (Health, Safety and Welfare) Regulations 1996 provided for their application. Regulation 3(1) contained the positive provisions regarding application; it provided that:"Subject to the following paragraphs of this regulation, these Regulations apply to and in relation to construction work carried out by a person at work."
Thus the application of the Regulations depended upon the nature of the work, not the place at which the work was undertaken, subject to certain disapplications. Regulation 3(2) contained a disapplication, which had no bearing on the present case. Regulation 3(3) provided that certain specified regulations, of which Regulation 5 was not one, applied only in relation to construction work carried out by a person at work at a "construction site". Thus it was plain that a location did not require to be a "construction site" for Regulation 5 to apply.
[14] Senior counsel next considered the terms of regulation 2, the Interpretation Regulation. It contained definitions of the concepts of a "construction site", "construction work" and "structure". The definition of "construction work" was crucial in the context of the present case. It meant "the carrying out of any building, civil engineering or engineering construction work" and included any of the following:"(a) the construction, alteration, conversion, fitting out, commissioning,
renovation, repair, upkeep, redecoration or other maintenance ... , de-commissioning, demolition or dismantling of a structure."
He drew attention also to the definition of "structure" which meant
"(a) any building, ... wall, ... , and any other structure similar to the
foregoing, ... ".
The appellant's submission was that the work being done by him at the time of his accident fell within the definition of "construction work" being undertaken on a "structure". Regulation 4 of the 1996 Regulations specified the persons upon whom duties were imposed by them. Regulation 4(1) covered employers whose employees were carrying out "construction work". The touchstone of that regulation was the nature of the work, or the control of the work. The terms of Regulation 4(2) gave the answer to the perceived absurdity envisaged by the sheriff. A domestic proprietor would not be in control of the way in which any construction work was carried out by any person at work on the premises occupied by him. The Council Directive 92/57/EEC (on the implementation of minimum health and safety requirements at temporary or mobile construction sites) Official Journal L245, 26/08/92 P. 006-0022 had no direct bearing on the interpretation of the 1996 Regulations. It was only one of a series of "daughter" Directives in furtherance of the "framework" Directive, 89/391/EEC (on the introduction of measures to encourage improvements in the safety and health of workers at work).
[15] Senior counsel then turned to the third chapter of his submissions, involving criticisms of the sheriff's reasoning. By way of an introduction to that, senior counsel contended that the background of a Directive might be an aid to the construction of regulations formulated in pursuance of it. However, it had to be recognised that regulations of that nature might have been formulated more generously towards a person working than the Directive had required. In the present case, the background of the Directive ought not to have the effect of leading to a construction of the Regulations narrower than that which their terms would justify. At page 22 of his decision the sheriff had considered the "plain" meaning of the verb "to construct". It was not helpful to resort to such a definition when the Regulations themselves provided a particular definition for the concept of "construction work". The flaw in the sheriff's reasoning lay in his reading of the definition of "construction work" in Regulation 2(1). He had read the word "and" in the opening part of that definition as introducing the second of two parts in the definition of "construction work", both of which, he considered, had to be satisfied; as opposed to introducing what might be called an including part of the definition. Furthermore, the sheriff had relied on the provisions of the Directive of 1992 which applied only to "sites". However, there was nothing in that Directive which pointed away from the appellant's interpretation of the 1996 Regulations. In particular, there was nothing in the Directive which mirrored regulation 5. Furthermore, there was nothing in the Council Directive 89/391/EEC (Official Journal L 275, 05/10/1990 P. 0042-0042) to point in a different direction. The "absurdity" contemplated by the sheriff was not, in reality, absurd. [16] At page 22 of his decision the sheriff had drawn comfort from the Workplace (Health, Safety and Welfare) Regulations 1992, which, as appeared from regulation 3(1), applied to "every workplace", as defined in regulation 2(1). In the latter regulation "workplace" was defined as "any premises or part of premises which are not domestic premises and are made available to any person as a place of work". Having regard to that definition, if the sheriff were correct in his interpretation of the definition of "construction work" in regulation 2(1) of the 1996 Regulations, there would be a lacuna so far as domestic premises were concerned. [17] Senior counsel then proceeded to draw attention to several authorities which, he suggested, might be of assistance. The first of these was McCook v Lobo and Others [2003] ICR 89, a case concerned with inter alia regulation 4(2) of the 1996 Regulations. It indicated that control of work was the criterion as regards duties under the 1996 Regulations. That was consistent with the appellant's construction of those Regulations. [18] It had to be emphasised that, upon the assumption that the appellant's position was wrong in relation to the European background and it was necessary to examine the 1992 Directive in the context of the interpretation of the 1996 Regulations, it had to be appreciated that Parliament might choose to offer wider, or more generous, protection than was required to be implemented by reason of the Directive. The appellant's submission was that the plain wording of the 1996 Regulations was clear; if the meaning of them went beyond what was required by the Directive, that was permissible. Reliance was also placed on Cullen v North Lanarkshire Council 1998 S.C. 451. At pages 454 to 455 the court eschewed the notion that the Regulations with which it was concerned, which were susceptible to a plain interpretation, had to be interpreted in some other way in consequence of the terms of the Directive relevant to their subject-matter. In that case the court also recognised that it was open to a Member State of the European Union to make regulations more stringent than those required by a Directive. Finally, senior counsel relied upon Donaldson v Hays Distribution Services Limited 2005 S.L.T. 733. In paragraph 30 of that decision the scope of a purposive approach to the interpretation of domestic legislation was considered. It might be adopted where conventional construction might result in the domestic legislation falling short of implementing fully the European legislation. A purposive construction had no part to play where it was accepted that the Regulations had fully implemented the relevant Directive. It was open to Parliament to go further than a Directive required. [19] In the whole circumstances, the appeal ought to be allowed. If it were accepted that the respondents were liable for a breach of Regulation 5(2) of the 1996 Regulations, it followed that they would also be in breach of Regulation 5(3).Submissions for the respondents[20] Senior counsel for the respondents moved us to refuse the appeal and to adhere to the sheriff's interlocutor of 23 July 2004. He contended that it was necessary to look at the 1992 Directive, in the light of such cases as Cullen v North Lanarkshire Council and Litster v Forth Dry Dock and Engineering Company Limited 1989 SC (HL) 96. It was accepted, however, that it might be that that scrutiny would be for different purposes in different situations. It had to be borne in mind here that the appellant had been working, at the material time, in the redecoration of domestic premises. The argument of the appellant was that the absurdity contemplated by the sheriff would not arise on account of the submissions made about control in the context of the provisions of Regulation 4(2) of the 1996 Regulations. In considering the issue of control, it was contended that a domestic occupier, who engaged tradesmen, might have occasion to give instructions as to how work was to be carried out within the confines of his home. Thus, in terms of regulation 4(2) of the 1996 Regulations, such an occupant might find that duties had been imposed by the Regulations upon him. At pages 21 and 22 of his decision the sheriff was putting a particular construction upon regulation 2(1) of the 1996 Regulations and, in particular, the expression "construction work". He saw an absurdity arising from the conclusion that the words "any building, civil engineering or engineering construction work" could apply to the work being conducted by the appellant in flat 13, which was domestic premises. However, that view depended upon the approach which he had taken to the word "and" in that definition. He had concluded correctly, it was submitted, that before any activity could fall within the definition of "construction work", it had to be capable of being seen both as "building, civil engineering or engineering construction work" and also to fall within some part of the listed activities in subparagraph (a) of the definition. The sheriff had correctly concluded that the work being undertaken by the appellant at the material time did not fall within the former expression. [21] Senior counsel went on to draw attention to the Construction (Design and Management) Regulations 1994. They contained, in regulation 2(1), a definition of "construction work" in the same terms as the definition to be found in the Regulations of 1996. However, it was interesting to note that the terms of regulation 3 of the 1994 Regulations, which dealt with their application to "construction work", contained a disapplication in regulation 3(8) in relation to construction work included or intended to be included in a project carried out for a "domestic client". The expression "domestic client" was defined in Regulation 2(1) of those Regulations. The so-called Framework Directive 89/391 EEC, which was designed to improve the health and safety of workers at work, in Article 3 specifically excluded "domestic servants" from the definition of a "worker". Thus there was a general theme to exclude these protective provisions from operation in the domestic context. [22] In the submissions of the appellant, there was a problem in connection with the expression "construction site". The appellant had submitted that the locus of the accident was a "construction site", yet that place was domestic premises. That was an oddity. It could well be that the language of the 1996 Regulations would have the effect of causing them to apply to domestic premises which were in the course of construction and, it might be, to painting and decorating work carried out in such a context. However, those Regulations could not reasonably be held to apply simply to the operation of redecorating existing domestic premises. The appellant had been unable to point to any authority suggesting that his contention in that regard was correct. In the whole circumstances, the appeal should be refused.
The decision[23] Having regard to the fact that the appellant's statutory case is founded upon the provisions of regulation 5(2) and 5(3) of the 1996 Regulations, the issue arising is whether those provisions applied to the work being undertaken by the appellant at the time of the accident. Regulations 5(2) and (3) provide:
"(2) Every place or work shall, so far as is reasonably practicable, be made and kept safe for, and without risks to health to, any person at work there.
(3) Suitable and sufficient steps shall be taken to ensure, so far as is reasonably practicable, that no person gains access to any place which does not comply with the requirements of paragraphs (1) or (2)."
The application of the 1996 Regulations is, of course, governed by regulation 3. If the effect of that regulation were to apply regulation 5 to the work being carried on by the appellant, then the result would be that, in terms of regulation 4(1), duties would be imposed upon the respondents, as employers of the appellant at the material time. Regulation 3(1) of the 1996 Regulations provides:
"Subject to the following paragraphs of this regulation, these Regulations apply to and in relation to construction work carried out by a person at work."
Regulation 3(2) and 3(3) have the effect of disapplying the 1996 Regulations in certain situations, to the extent specified. Those provisions, it was a matter of agreement, have no direct relevance to the present case, though it may be noted that by regulation 3(3) certain regulations are applied only to construction work carried out at a construction site; the remaining regulations (which include regulations 4 and 5) apply whether or not the construction work is carried out at a construction site. Thus the question becomes whether the appellant, who was plainly "a person at work" at the material time, was involved in "construction work".
[24] Regulation 2(1) of the 1996 Regulations provides for the interpretation of a range of expressions used in the Regulations. The expression "construction work" is defined as meaning:" ... the carrying out of any building, civil engineering or engineering construction work and includes any of the following -
(a) the construction, alteration, conversion, fitting out, commissioning,
renovation, repair, upkeep, redecoration or other maintenance ... de-commissioning, demolition or dismantling of a structure."
In the same regulation, "structure" is defined as meaning:
"(a) any building, ... , wall, ... , and any other structure similar to the
foregoing ... ".
Plainly, at the material time, the appellant had been working on a "structure" within the meaning of that definition, in respect that he had been working on a part of a building, namely a wall. In these circumstances attention must be focused upon the definition of "construction work", just quoted. Having regard to the fact that the words " ... renovation, repair, upkeep, redecoration or other maintenance ... of a structure" appear in that part of the definition of "construction work" commencing at sub-paragraph (a), it is, in our opinion, quite plain that the work being undertaken by the appellant at the material time fell within the scope of those words, which refer expressly to "redecoration", which was exactly what the appellant was doing. Thus, the issue becomes whether that work must, as a precondition, also fall within the scope of the words "any building, civil engineering or engineering construction work", as independently construed, if it is to be "construction work" within the totality of the definition. To answer that question, it is necessary to reach a conclusion on the proper interpretation of the words "and includes" where they occur in the early part of the definition. As we understand it, the sheriff has taken the view that, before any work can fall within the definition of "construction work", it must be capable of being embraced within the scope of the words "any building, civil engineering or engineering construction work" and also must be embraced within the further elaboration beginning with the sub-paragraph (a). He concluded that because the redecoration work being undertaken by the appellant, in his view, could not be described as "any building ... work", the work did not fall within the overall definition. In our view, on a plain reading of the definition, the sheriff's interpretation is unsound. In our opinion, while "construction work" is defined as meaning the carrying out of any "building, civil engineering or engineering construction work", the words "and includes any of the following" signify that the earlier words just quoted are to be given the inclusive and, it may be, extended meaning conveyed by the words used in sub-paragraph (a). As we read the definition, the word "and" in the definition does not require that work should fall independently within the initial part and the subsequent part of the definition; it simply signifies that, whatever otherwise may be the scope of the expression, if work falls within the definition contained in sub-paragraph (a) that work will be "construction work". Thus we conclude that the work being undertaken by the appellant at the material time was "construction work", with the consequence that the 1996 Regulations were applicable in the circumstances; thus the statutory duties relied on were owed by the respondents to the appellant. It follows that the appellant's statutory case succeeds.
[25] We perceive no absurdity in the conclusion which we have reached. We do not understand why the sheriff considers that the interpretation which we favour would amount to an absurd and erroneous approach to the application of the Regulations. At page 22 of his decision the sheriff observes that the potential for the sort of absurdity which he perceives in the interpretation which we favour was, in fact, dealt with in the context of the Workplace (Health, Safety and Welfare) Regulations 1992. In regulation 2(1) of those Regulations, which deals with the interpretation of a number of expressions used in them, the expression "workplace" is defined as meaning " ... any premises or part of premises which are not domestic premises and are made available to any person as a place of work ... ". Thus, while "domestic premises" are specifically excluded from that definition, we do not consider that that circumstance has any bearing on the proper interpretation of the 1996 Regulations. A glance at the 1992 Regulations indicates that their purpose is to provide for a range of measures and facilities designed to ensure the health, safety and welfare of persons working at workplaces. The kind of measures and facilities referred to include such matters as maintenance of the workplace, ventilation, lighting, cleanliness and waste materials, room dimensions and space, workstations and seating, condition of floors and traffic routes, organisation of traffic routes, doors and gates, escalators and moving walkways, sanitary conveniences, washing facilities, drinking water, facilities for changing clothing, facilities for rest and to eat meals, and other matters. It appears to us that, having regard to the evident purpose of those Regulations it would have been very surprising if domestic premises had not been excluded from their application. Indeed, it would, we suppose, be quite impracticable for the desiderated facilities and conditions to be established in domestic premises. Accordingly, we consider that the features of those Regulations are of no assistance in the present context. [26] The sheriff, at page 22 of his decision, stated that, on no view of the evidence in the case, could it be said that flat 13 was, or formed part of, a construction site. That expression is, of course, defined in Regulation 2(1) of the 1996 Regulations. Senior counsel for the appellant contended that flat 13 was indeed part of a construction site, although his position was that it did not matter whether it was or not. We would prefer to say nothing about that, since it is unnecessary to reach any conclusion on the matter. Regulations 5(2) and (3) do not relate to construction sites; they relate to a "place of work". As defined in Regulation 2(1), "place of work" simply means"any place which is used by any person at work for the purposes of construction work or for the purposes of any activity arising out of or in connection with construction work."
Having regard to the view we have formed of the meaning of the expression "construction work", plainly flat 13 was a "place of work".
[27] At page 22 of his decision the sheriff observes that the appellant's task might be likened to that arising where a home owner instructed a firm of painters to give his sitting room a fresh coat of paint. That would certainly be described as "redecoration". However, he could not conceive that that task would attract the description "construction work" for the purposes of the 1996 Regulations. In our view that observation simply proceeds upon the basis of the unsound interpretation which the sheriff has given to the definition of "construction work" in regulation 2(1). We see no reason why an employee of a firm of painters should, by reason only of the nature of the premises where the work is carried out, be denied the protection of the requirements of regulation 5. [28] During the course of the argument before us, senior counsel for the respondents contended that the approach to the 1996 Regulations urged on behalf of the appellant would involve the apparently bizarre consequence that, for example, a householder who had engaged a painter and decorator to redecorate a room in his home might find that the duties provided for in the 1996 Regulations were incumbent upon him. That was said to be the possible result of the terms of Regulation 4(2) of the 1996 Regulations. It provides:"It shall be the duty of every person (other than a person having a duty under paragraph (1) or (3)) who controls the way in which any construction work is carried out by a person at work to comply with the provisions of these Regulations in so far as they relate to matters which are within his control."
It was contended that a householder who asked a painter and decorator to undertake his work in some particular way, designed to avoid possible damage to fittings and fixtures in the house, would be someone who "controls the way in which any construction work is carried out". In our view, this fear is fanciful. We consider that the control contemplated in Regulation 4(2) is something very much more far reaching and elaborate than the issuing of the kind of instruction or request figured. In this connection we are reinforced in our view by what was said in McCook v Lobo and Others at page 94 by Judge L.J. In paragraph 16 he said this:
[29] In Donaldson v Hays Distribution Services Limited, the First Division had occasion to consider the interpretation of the 1992 Regulations. In that connection, the relationship between those Regulations and the Workplace Directive to which they were made to give effect was considered. It was indicated by Lord Macfadyen, giving the Opinion of the Court at paragraph [30], that:"Whether the appropriate level of control over the work is or should be exercised by an individual other than an employer so as to create the duty to comply with the obligations under regulation 4(2) is, in my judgment, a question of fact. It is not answered affirmatively by demonstrating that an individual has control over the site in a general sense as an occupier, or that as the occupier of the site he was entitled to ask or require a contractor to remove obvious hazards from the site. The required control is related to control over the work of construction."
"The context in which such a purposive approach to the interpretation of domestic legislation is normally necessary is, however, where conventional construction might result in the domestic legislation falling short of implementing fully the European legislation (as, for example, in Litster). That is not, however, the situation which arises in the present case. It is not disputed that the regulations fully implement the directive. There is no need to resort to purposive construction of the regulations to achieve that end."
He continued:
"It is open to Parliament to go further, at least in some respects, than the directive requires. As was pointed out in Cullen at page 455, 'It is open to a Member State to make its regulations more stringent than is required by the directive'."
In the present case we have not found it necessary to resort to a consideration of the terms of either of the Directives to which reference was made in arriving at a confident construction of the expression "construction work" in regulation 2(1) of the 1996 Regulations. However, we feel that some support for our approach to that can be got from a consideration of Article 2 of the Directive 92/57/EEC. That Article contains a definition, for the purposes of the Directive, of the expression "temporary or mobile construction sites". They are referred to as meaning "any construction site at which building or civil engineering works are carried out; a non-exhaustive list of such works is given in Annex I." Perusal of Annex I shows that "building or civil engineering works" are to be taken to include such activities as renovation, repairs, upkeep and maintenance, including painting and cleaning work". However, as we have indicated, we do not consider that there is any ambiguity about the scope of the definition contained in Regulation 2(1) of the 1996 Regulations.
[30] In all of these circumstances, we shall recall the interlocutor of the sheriff dated 23 July 2004, to the extent of sustaining the appellant's plea-in-law 1 in relation to his statutory case, sustaining his plea-in-law 4 to the extent of the agreed damages, repelling the respondents' pleas-in-law relating to the statutory case and granting decree for the sum of £20,000, together with interest at the appropriate rate from 17 November 2003.