Tomasz Krysztof Kmiecic, was a carpenter. In June 2006 he tried to fix a leaky garage roof at a Mrs Isaacs’ substantial and valuable home when he fell from a ladder. He shattered his right elbow and injured his hip and thigh. He is now permanently disabled and can never work again as a carpenter and general builder.
The firm that contracted Mr Kmiecic (on £60 to £80) a day did not have insurance. So Mr Kmiecic, turned to Mrs Isaacs for compensation.
Mrs Isaacs was a very house-proud person. Her house had pristine white carpets. Rather than allow Mr Kmeicic to access the part of the roof he was working on and thus have to risk footprints on the carpet, Mrs Issacs gave Mr Kmeicic a ladder to use.
It was Mr Kmiecic’s case that Mrs Isaacs should be construed as his employer. It was argued that by giving a workman instructions to undertake work, a homeowner met the ‘control test’ under as prescribed under the relevant workplace safety regulations. Thus, it was argued, Mrs Isaacs by giving Mr Kmiecic a ladder to use rather than allowing him to walk through her house, breached a duty of care owed to Mr Kmeicic and/or under the Construction (Health, Safety and Welfare) Regulations 1996 and Work at Height Regulations 2005.
Mr Kmiecic’s claim was dismissed by Swift J following a hearing on 11/11/09 and 22/1/10 ( EWHC 381 (QB)). Mr Kmiecic appealed.
On 22/2/11 in an as yet unreported judgment, the Court of Appeal dismissed Mr Kmeicic’s appeal and held that "Mr Kmiecic did not come under Mrs Isaacs' control merely because she forbade him access to her garage roof through her son's bedroom. ... The safety of temporary construction sites is better ensured by focusing the responsibility on employers and others who are equipped to assess how that would be best achieved. ... common sense had prevailed”.
A victory for common sense and the homeowner, but not so for unfortunate Mr Kmiecic. This is especially so, when it appears, (as Swift J pointedly noted), that the ‘real culprit’ in this matter was Mr Kmiecic’s uninsured "cowboy" employer.