“A Blueprint for Action”: Workplace Risk Assessments Revisited

07 Mar 2023

The case of Paul Chadwick v (1) RH Ovenden Limited and (2) Rian Hamilton [2022] EWHC 1701 (QB) concerns an accident which occurred on Manston Airfield (“the Airfield”) in an unused cargo plane. The Claimant, Mr Chadwick, was badly injured during the process of dismantling the plane (“the Accident”). The case examines the employment relationships as between the Claimant and the two Defendants; it serves as a helpful recap on workplace negligence principles and provides a cautionary tale on the importance of workplace risk assessments.

The background facts

The Accident occurred on the Airfield in February 2015; there were two Boeing 747 jumbo jets and a DC8 aircraft on the Airfield, all three of which required dismantling. The Claimant had been working on a DC8 aircraft that was being taken out of service. The Claimant was using an angle grinder to cut a metal sheet in the aircraft; unknown to him, an oxygen cylinder was behind the sheet. The angle grinder inadvertently cut through the cylinder, and the oxygen ignited, causing an explosion. He was thrown backwards, and his injuries were so serious that he was airlifted to a London hospital. He subsequently underwent multiple major operations and has permanent damage to his eyes and hands. He hasn’t worked since the accident.

The Claimant brought a claim against R H Ovenden Ltd (the “First Defendant”) alleging that it was liable for the damage suffered as it had a duty of care to him as it had control of the workplace and therefore a duty to take reasonable measures to ensure his safety. The Claimant claimed that Mr Hamilton (the “Second Defendant”) was his employer, who breached his duty of care by failing to take reasonable measures to ensure the safety of the workplace. The Claim was brought as a common law claim in negligence following the repeal of s47(2) of the Health and Safety at Work etc Act 1974 (“HSWA 1974”). Both Defendants denied liability. The hearing before Mr Simon Tinkler (sitting as a Deputy Judge of the High Court) was solely to determine whether either Defendant had any liability to the Claimant.

There was no safety inspection by a qualified engineer prior to the start of the dismantling work. It was held that both the First and Second Defendants were liable to the Claimant in negligence with no deduction for contributory negligence.

The key issues

The legal arrangements between the parties

The Judge had to consider the employment relationship between the parties and the supervisory arrangements. The Judge considered the contract (“the Contract”) as between the First Defendant and the Airfield owners in depth, and held that the Contract covered, and was intended to cover, the entire process of dismantling the Aircraft (from when fuel was taken off the aircraft through to the final clearance of the site). The First Defendant had a number of other obligations under the Contract in relation to risk assessments, site safety and obtaining adequate insurance.

One of the witnesses of fact, Mr Croney, was the sole director of Smart Autotech Limited (“Smart”). Six years after the Accident, Mr Croney claimed that Smart was the employer of the Second Defendant in 2015 and indeed that Smart had been the primary contractor for the dismantling of the aircraft at the time of the Accident. This was the first time that anyone, including the Second Defendant himself, had made this assertion about Smart employing him.

The Judge found no evidence that Smart, in 2015, or the following years, was the contractor at the time of the Accident; he considered that the claim that Smart was the primary contractor at the time of the Accident was plainly wrong and was another attempt to pass the buck onto an entity that, rather conveniently, had been dissolved. He found that the First Defendant was the primary contractor until the Accident, and that Smart took over that contract at some point in the immediate aftermath of the Accident.

The next issue for the Judge was identifying the capacity in which the Second Defendant was on the site, i.e. whether he was a contractor or an employee of Smart (or some other entity). He found that the Second Defendant assisted and typed up Mr Croney’s witness statement in a contrived attempt to try and assist the Second Defendant’s defence. The alleged employment by Smart of the Second Defendant was a fiction put together between the Second Defendant and Mr Croney in 2021 when the penny dropped with the Second Defendant that he potentially had serious personal liability. The inescapable conclusion was that the Second Defendant was working for his own account and his own benefit when carrying out work at Manston Airfield. Therefore, the Second Defendant was self-employed at the time of the Accident and not an employee of Smart or anyone else. He was working there, carrying out tasks on the aircraft, with men he had recruited and was paying. The Second Defendant was sub-contracted by the First Defendant to physically dismantle all three aircraft.

As to the question of whether the Claimant was self-employed or an employee, almost every factor pointed to the conclusion that he was an employee. Numerous factors are set out at paragraph [55] of the Judgment, including not limited to the fact that the Claimant had no control over the tasks he was set to carry out, and the hours of work were set by the Second Defendant. The Second Defendant recruited and paid individuals to carry out tasks that he supervised. Whilst he may not have carefully considered the legal responsibilities to those he recruited, as a matter of law and fact the Claimant was employed by the Second Defendant.


As for the liability of the Second Defendant, he was the employer of the Claimant, and he had a duty to ensure that a proper safety inspection had been carried out. It was not relevant to his duty whether the First Defendant also had a duty to carry out such an inspection. They could both have satisfied such a duty by carrying out a joint inspection, but crucially – a failure by the First Defendant to carry out a proper inspection did not relieve the Second Defendant of his independent duty to carry it out.

The reasonable steps that an employer should take are situation specific. The Judge cited the dicta of Lords Reed and Hodge in Kennedy v Cordia [2016] UKSC 6 [at 89]:

“The importance of a suitable and sufficient risk assessment was explained by the Court of Appeal in the case of Allison v London Underground Ltd [2008] EWCA Civ 71; [2008] ICR 719. Smith LJ observed at para 58 that insufficient judicial attention had been given to risk assessments in the years since the duty to conduct them was first introduced. She suggested that that was because judges recognised that a failure to carry out a sufficient and suitable risk assessment was never the direct cause of an injury: the inadequacy of a risk assessment could only ever be an indirect cause. Judicial decisions had tended to focus on the breach of duty which led directly to the injury. But to focus on the adequacy of the precautions actually taken without first considering the adequacy of the risk assessment was, she suggested, putting the cart before the horse. Risk assessments were meant to be an exercise by which the employer examined and evaluated all the risks entailed in his operations and took steps to remove or minimise those risks. They should, she said, be a blueprint for action.”

The Claimant averred that one of the reasonable steps required was a safety inspection carried out by a qualified aviation engineer to identify and then address risks on the aircraft. The Second Defendant did not take reasonable steps to provide a safe place of work in relation to those risks as he failed to carry out an adequate safety inspection before starting work which would have located the oxygen cylinder, and that failure caused harm to the Claimant. The specific risk of injury from an oxygen cylinder behind the panel was reasonably foreseeable. Importantly, the Second Defendant had no engineering qualifications; the Judge stated that: “One problem with the “safety check” being carried out by someone who is not qualified to do it is that they will not be fully competent to look for the unexpected, or to think about what may be unusual” [66].

As concerns the liability of the First Defendant, the First Defendant had under the Contract taken on responsibility for the entire dismantling process from start to finish. It had agreed for example to put in place a method statement to ensure that the work was carried out safely. This was one of many clear indicators of control over the dismantling of the aircraft. The First Defendant had a duty of care at common law to take reasonable steps to prevent reasonably foreseeable harm. The First Defendant did not take reasonable steps to prevent harm as they did not carry out, or ensure a third party carried out, a proper safety inspection, and this failure caused the Accident and harm to the Claimant.

A defence had been raised that the Claimant was contributorily negligent; however, the Judge noted that the Claimant was a casual labourer with no experience of dismantling aircraft. He was entitled to rely on his employer and other persons having control of the aircraft to ensure that his place of work was safe. As such, the Judge did not find that the Claimant had in any way been the author of his own misfortune. The section of the Judgment on contributory negligence [at 99] is particularly insightful as the Judge stated that: “one has to be especially mindful of the power imbalance in the relationship between employer and employee, and the reality of how much autonomy the Claimant had in deciding what to do and how to do it”.


This case serves a useful touchstone on workplace accident principles and the importance of safety measures in legal arrangements involving sub-contracting. Paragraph [89] of the Judgment is especially helpful insofar as the Judge stated that s4 HSWA 1974 imposes a duty on a person who has control “to any extent” therefore it explicitly contemplates that a person may not have sole control of the place of work. What this means is that there may be more than one person in control, and each has a duty under the section.

Article by Charlotte Wilk.


Charlotte Wilk

Call: 2021


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