Yates v National Trust 14 and liability to employees of a third party

Jamie Yates was 22 and was working as a tree surgeon for Joe Jackman t/a Joe Jackman and Sons when, on 4th December 2009, he fell some 50ft from a tree and suffered catastrophic injuries. The accident happened in Morden Hall Park, where Mr Jackman had been engaged to carry out various tree felling jobs for the owners and occupiers, the National Trust (NT). At the time of his accident, Mr Yates had been working for Jackman for about 2 years. He was always self- employed but worked under the direction of Joe Jackman and on his contracts. Mr Jackman himself had been introduced to the NT over 2 years previously. He always represented to the NT that his contracts would be performed by ‘experienced and fully qualified arborists’ – though whether the job in question (felling a large chestnut in sections) required greater paper qualifications than Mr Yates (and, indeed, Mr Jackman) actually possessed was controversial.

Mr Yates’s case, in a nutshell, was that he was too inexperienced and/or insufficiently trained and supervised to be doing what he was. He argued that this should have been apparent to the NT who should not have allowed him to on their premises to do the job on which he was injured.

In the ordinary way, the claimant would have brought that claim against Joe Jackman by whom he was, for all practical purposes, ‘employed’. But Mr Jackman had only Public Liability cover and, it was said, the insurers had declined to indemnify him. Hence Mr Yates pursued a claim against the NT. The case was heard by Nicol J in December 2013 (judgment 10th February 2014).

The first issue arising from the case is that it was pleaded on the basis that the Work at Height Regulations   2005   imposed   a   duty   on   the   NT notwithstanding that it was not Mr Yates’s employer. Had the WAH Regs applied to the NT, there might have been a strong case. But their application depended on establishing that the NT was in control of the operation. Such issues are always fact-sensitive and, in opening the case, Mr Yates’s counsel effectively conceded that the WAH Regs did not apply, an approach which Nicol J (at paragraph 38 of his judgment) endorsed.

Second, it was said that the NT owed Mr Yates a free- standing duty of care, along the lines of the duty owed in Bottomley v Todmorden Cricket Club 15, on the basis that tree surgery is a kind of dangerous activity which falls outside the well-established general principle that an employer (NT in context) is not liable to the employee of its own contractor unless it is a non- delegable duty (Woodland v Essex County Council 16) or the facts can constitute one of the ‘special circumstances’ acknowledged as an exception to that principle in Ferguson v Welsh 17.

Nicol J rejected that argument and held that no such free-standing duty was owed (and, in any case, found that if there was such a duty, NT had met the necessary standard). In so doing, he looked at the NT’s rules which the claimant’s team relied on and held that they did not create any duty nor did they define the standard of any such duty as might be owed. In effect, he favoured the approach of textbook and judicial commentators on Bottomley which is to treat it as a truly exceptional case on its own facts: even if it is not to be explained as an example of ‘extra hazardous activities’ in the Honeywill 18 sense, Bottomley is certainly to be viewed as one of ‘exceptional special circumstances’ as foreseen in Ferguson v Welsh. But there was nothing ‘exceptional’ about the activities in which Messrs Jackman and Yates were engaged. Their work was obviously dangerous but not exceptionally so, being no more dangerous than any number of activities at height or underground, working with machinery and so forth.

Of course, that is not to say that the NT owed no duty at all to Mr Yates or anyone else. Mr Yates was certainly owed a duty as regards the ‘state of the premises’ under the Occupiers’ Liability Act 1957 but the NT was, in that context, entitled, pursuant to s. 2(3)(b), to expect that he would exercise the care to be expected of someone doing his job. The NT would also have owed a duty to ordinary visitors (though not to Mr Yates) to have checked that their main contractor, Mr Jackman, was an apparently competent independent contractor and had proper insurance. However, that they had done and so there would have been no breach of duty had his insurance been invalid because the NT checks were reasonably sufficient.