No duty of care owed by occupier to contractor's employee
Yates v National Trust
Queen's Bench Division - 10 February 2014
Judgment has been handed down in a case of great significance to occupiers. The court held that no duty of care was owed by National Trust to the employee of one of its independent contractors. The decision is welcomed as bringing clarity to the nature of the duty of care owed by occupiers.
The defendant engaged the services of a contractor, Joe Jackman, to carry out tree works at one of its properties, Morden Hall Park. The contract began in May 2007 and by the time of the accident in December 2009, Jackman and his team of men had worked on over 60 trees in the Park, spanning approximately 15 separate contracts.
In December 2009, one of Jackman's men, the claimant, was seriously injured when he fell from a height of 50 feet whilst working in a tree at the Park. He has no memory of what occurred and none of his ground staff could shed any light on how he came to fall.
The claimant's single argument at trial was that a duty of care was owed to him, as the employee of a contractor, by the defendant as occupier. The scope of the duty was said to be to select a competent contractor. Throughout the case it was argued that Jackman was not a competent contractor and that the claimant was too inexperienced to carry out work in the tree.
It was held that the defendant did not owe a duty of care to the claimant in the selection of Jackman as an independent contractor. It would not be fair and reasonable to impose a duty which would place a much more onerous obligation on occupiers to their contractor's employees, than they owed to their visitors under the Occupiers Liability Act 1957. There was far more scope for an employee to be injured than for an ordinary visitor. The range of matters an occupier would have to take into account in order to discharge this wider duty would be considerably greater.
The Judge distinguished the Court of Appeal decision in Bottomley v Todmorden Cricket Club. In that case, the defendant cricket club hired a two man stunt team called Chaos Encounter to conduct a pyrotechnic display, part of which involved a pair of mortars filled with petrol into which would be lowered bags filled with gunpowder. The claimant was injured whilst assisting the stunt team. Whilst a duty of care was held to be owed by the club to the claimant, the decision is best understood on the basis the activity was extra hazardous, not only to the claimant but to all visitors. The Judge found that whilst tree climbing is hazardous (as is most working at height), it is simply not in the same league as the pyrotechnic display in Bottomley.
The Judge also held that even assuming a duty of care was owed by the defendant to the employees of the contractor to select only a competent contractor, the defendant was not in breach of that duty as it was entitled to regard Jackman as a reasonably competent and safe contractor.
Had the Court found a duty of care was owed by an occupier in such circumstances, this would have represented an unwelcome extension to the law. The implications for any person, private or corporate, who engaged the services of a contractor would have been transformed. This decision confirms an occupier is entitled to expect that a contractor will appreciate and guard against any risks associated with that contractor's calling.
Nicholas Thorne, partner - Berrymans Lace Mawer LLP