(1) Biffa Waste Services Ltd (2) Biffa Leicester Ltd v (1) Maschinenfabrik Ernst Hese GMBH (2) Outokumpu Technology Wenmec AB & Vanguard Industrial Ltd (Third Party) & Hese Umwelt GMBH (Third Party) [2008] EWCA Civ 1257

The principle that a person who employs an independent contractor to carry out extra-hazardous or dangerous operations can be vicariously liable for that contractor’s negligence was binding on the Court of Appeal, but its application should be kept as narrow as possible and strictly confined only to activities that were exceptionally dangerous no matter what precautions were taken. Welding was not an exceptionally dangerous activity, provided reasonable precautions were taken, so the principle did not apply to this case.  To read the judgment, click here.

Biffa v Maschinenfabrik and Others: Biffa Leicester Limited entered into a PFI contract with Leicester City Council for the collection, recycling and disposal of Leicester’s domestic waste, which necessitated the construction of a recycling plant, a key part of which was the Ball Mill – in essence, a large rotating drum containing steel balls. Biffa Leicester then entered into a back-to-back contract with Biffa Waste Services Limited to construct the plant . Biffa Waste than engaged Maschinenfabrik Ernst Hese GMBH (MEH) to design and build the plant and MEH sub-contracted the work to Hese Umwelt GMBH (HU). As main contractors on the site, HU were responsible for safety. HU then entered into a contract with Outokumpu Wenmec AB (OT) to design, supply and install the Ball Mill. OT designed the Ball Mill and then sub-contracted its manufacture and installation to another party.

After a Certificate of Practical Completion was issued, the commissioning tests indicated that modifications had to be made to the Ball Mill to increase throughput. These works would include work to the fixing arrangements to the grates. In particular, lifter bars needed to be replaced with clamping bars, which involved welding. The work was performed by personnel from Pickfords, who had already been working on the site for some months as sub-contractors to HU. During the course of a tea break, a fire broke out, which extensively damaged the claimants’ plant. The fire was held to have been caused by Pickfords’ welders.

The judge in the lower court held that OT was vicariously liable for Pickfords’ negligence, on the basis that it had ‘borrowed’ Pickfords’ employees in that it had organised and supervised the work. As a result, Pickfords’ welders were not to be treated as independent contractors but had become OT’s employees when carrying out the welding in the Ball Mill. The judge had also found liability on the basis that the welding operation was extra-hazardous.

The Court of Appeal disagreed, noting that Pickfords’ men were skilled welders who used their own welding equipment, their own gas cylinders and their own weld rods. They had their own foreman on site to supervise them. OT had no control over the manner in which they welded. The judge had erred in focussing on the fact that Pickfords’ employees were supervised by OT: ‘Supervision is not control. An architect or a clerk of the works may supervise the work of a contractor’s employees, but he does not exercise control for the purposes of vicarious liability…the right to supervise does not, without more, carry with it the entitlement to instruct how to do the work, particularly where the employees are not unskilled labourers but skilled welders.

In relation to vicarious liability for ultra hazardous acts, Stanley Burton LJ analysed in detail the authorities that had been followed in Honeywill & Stein Ltd v Larkin Brothers (London’s Commercial Photographers) Ltd [1934] 1 KB 191 and concluded that the doctrine enunciated in that case was so unsatisfactory that its application should be kept as narrow as possible. It should apply only to activities that were exceptionally dangerous, no matter what precautions were taken. The contractor’s activities here were not in that category and the appeal would be allowed. In reaching this decision the court noted that it would be ‘curious, to say the least, that OT in Sweden should be liable without negligence on its part for welding work in England carried out by skilled welders employed by an independent contractor on a site in which another company, HU was generally responsible for safety.