A recent High Court case clarifies what duty of care is owed by an occupier to its contractor's employees working on his premises or land.

So far as potential civil liability is concerned, a client will not generally owe a duty of care to the employee of a contractor engaged to do work on his premises when this relates to how the work is done rather than the safety of the premises.

There can be a duty of care if the client exercises sufficient control over the operations or the activity is exceptionally dangerous. The level of control exercised by the client is significant in determining whether a duty should exist.  This recent case confirms that an occupier is entitled to expect that a contractor will understand the risks involved in their profession and manage these appropriately.

The Case

The case of Jamie Yates v National Trust [2014] EWHC 222 (QB) Mr Justice Nicol ruled that a Claimant who was gravely injured falling 50 feet whilst engaged on behalf of a contractor in a tree felling operation did not amount to special circumstances where the Defendant might owe him a duty of care.

The Claimant was one of three workers engaged by a tree surgeon who in turn had contracted with the National Trust (the Defendant) to take down a large horse chestnut tree which was diseased.  The Claimant had climbed up the tree and was in the process of lopping off branches before the main trunk was to be cut down in sections.

For reasons which were never clearly established at trial, although apparently secured to the tree on a harness, the Claimant fell. Neither of the other two workers witnessed the fall.

The Claimant’s Case

The principal case put forward on behalf of the Claimant was that the Defendant owed a duty of care to him as employee of the tree surgeon contractor to ensure that the methods of the tree surgeon were competent and safe and that the Defendant breached this duty of care by taking insufficient steps to establish the competency of the tree surgeon as evidenced by deficiencies in appropriate tree felling qualifications and insurance.

In a further point the Claimant argued that the Defendant knew or should have known that the Claimant himself lacked the qualifications or experience to carry out the work that he was doing and that he was not properly supervised.  In those circumstances it was argued that the Defendant was under a duty to ensure that the system was made safe.

The Decision

Whilst it is clear from the judgment that the Honourable Judge had the utmost sympathy for the Claimant who was rendered paraplegic as a result of the accident, Mr Justice Nicol rejected the notion that the Defendant owed the Claimant a duty of care  both to ensure that the contractor was competent or indeed that the system of work being deployed by the contractor was safe, even in circumstances where the Defendant was or should have been on notice that the Claimant himself was not up to the job and was inadequately supervised.

Notwithstanding the fact that he had rejected the existence of a relevant duty of care, the Judge then went on to indicate that even if there had been a duty of care, he did not consider that there had been any negligence on the part of the Defendant.

Main points of the case

  • The Defendant did owe a duty of care to the Claimant as occupier of the land under the Occupiers Liability Act 1957, however this was not the relevant duty of care.  The Claimant was not injured because of the state of the premises but because of his activity as a tree surgeon in the horse chestnut tree.
  • The Judge reverted to the case of Caparo Industries Plc v Dickman [1990] 2 AC 605 which set out the necessary conditions for the existence of a duty of care, namely, that the loss must be reasonably foreseeable if care is not taken, there must be a relationship of proximity between the Claimant and the Defendant and  the imposition of liability must be just and reasonable.  The factors which were particularly important for the Judge were that the Claimant was not an employee of the Defendant and perhaps more important still, the Defendant had no control in practical terms as to how the work was to be carried out off the ground by the contractors and by the Claimant.
  • The Judge distinguished a line of case authority put forward by the Claimant’s representatives where Courts had found a duty of care and the necessary proximity between the Claimant and a Defendant as incidences where the Defendant had a measure of control over the circumstances leading to a Claimant’s injury or death. Here however the Judge found that there was not the same degree of control to establish the proximity between the Claimant and the Defendant.
  • The Judge also distinguished the case of Bottomley v Todmorden Cricket Club [2003] EWCA Civ 1575 where the Court of Appeal had found that a cricket club owed a duty of care to the pyrotechnic contractors’ agent on the basis that the particular set of circumstances was that the contractors were carrying out an exceptionally dangerous operation (the setting up of a pyrotechnic display) which was not only dangerous for the Claimant but also for all of the visitors to the Club’s event including members of the public.
  • The Judge’s view seems to have been that tree surgery, which involves climbing into a tree, is hazardous but not exceptionally dangerous.  It is similar to other operations carried out at some height off the ground, like many other aspects of construction or even window cleaning. The Judge pointed to the fact that the 2005 Work at Heights Regulations apply to an employer in respect of non-employees under his control to the extent of his control. Clearly this was a particularly relevant for consideration for the Judge as he considered that the National Trust was not exercising control over the contractors and the Claimant as to the manner in which they were carrying out the work.
  • The Defendant accepted that it was important to take care in the selection of contractors in order to comply with the Defendant’s legal obligations  to visitors to the premises who might be injured as a result of carelessness by a contractor or his employees (Section 2(4)(b) Occupiers’ Liability Act 1957).  The Defendant even went so far as to say that it agreed with the proposition that it was important to see that it had competent contractors to protect the contractors themselves, and had issued a briefing to staff to that effect.  The Judge found however that there was nothing in the actions of the Defendant or in the documents that went so far as to create a duty of care through assumption of responsibility by the Defendant.
  • The Judge concluded that it would not be fair and reasonable to impose a duty of care on the Defendant and whilst there could be a failure to exercise reasonable care in the choice of an independent contractor leading to an occupier being liable to an ordinary visitor, it would place a very much more onerous obligation on occupiers to extend that duty to the contractor’s employees or subcontractors.
  • The Judge commented that there was much more scope for an employee to be injured than for an ordinary visitor, therefore the range of matters which the occupier would have to take into account in order to discharge that wider duty would be considerably greater and the imposition of such duty would not, in the Judge’s view be fair and reasonable.

Conclusion

  1. As a general rule for issues of civil liability, a client engaging a contractor will not owe a duty of care to an employee of the contractor in relation to how the work is being carried out, although the client as occupier of the premises will owe a duty of care to the employee as visitor in relation to the condition of the premises under the Occupiers’ Liability Act 1957.
  2. Exceptionally a duty of care can exist where the client exercises a measure of control over the contractors and/or Claimant which creates sufficient proximity in the relationship for a duty to arise.
  3. A duty of care can also arise where the activity being carried out is exceptionally dangerous not only to employees of the contractor but to all potential visitors to the premises.

In Practical Terms

  • Clients engaging contractors should ensure that the contractors have appropriate insurance for both public and employer’s liability risks. Regardless of the ultimate position on liability, if there is a serious injury to an employee of an uninsured contractor, the victim will look to other potential Defendants with either deep pockets or insurance.
  • Carry out a thorough assessment of the competency of the contractor and its expertise. In the context of potential criminal liability, this is a minimum requirement to discharge duties to ‘non-employees’ (members of the public including employees of contractors) under the Health and Safety at Work etc Act 1974 and related health and safety regulations.
  • Decide, agree and record with the contractor the limit of any instructions and level of supervision. This will depend on the level of specialisation of the work, the expertise of the contractor and how dangerous the work is.
  • Keep a note of any assessment of the contractor, any certificates of competence, method statements and risk assessments, and the level of expertise of the contractors.