Ferguson (A.P.) (Appellant)
v.
Welsh and others (Respondents)
JUDGMENT
Die Jovis 29° Octobris 1987
Upon Report from the Appellate Committee to whom was
referred the cause Ferguson against Welsh and others, That the
Committee had heard Counsel on Monday the 6th and Tuesday the
7th days of July last, upon the Petition and Appeal of Joseph
Ferguson, of 15 Totnes Close, Sunderland, Tyne and Wear,
praying that the matter of the Order set forth in the Schedule
thereto, namely an Order of Her Majesty’s Court of Appeal of
16th September 1986, might be reviewed before Her Majesty the
Queen in Her Court of Parliament and that the said Order might
be reversed, varied or altered or that the Petitioner might
have such other relief in the premises as to Her Majesty the
Queen in Her Court of Parliament might seem meet; as upon the
case of Sedgefield District Council lodged in answer to the
said Appeal; and due consideration had this day of what was
offered on either side in this Cause:
It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty’s Court of
Appeal (Civil Division) of 16th September 1986 complained of
in the said Appeal be, and the same is hereby, Affirmed and
that the said Petition and Appeal be, and the same is hereby,
dismissed this House: And it is further Ordered, That the
Costs incurred by the said Respondents in respect of the said
Appeal from 23rd March 1987 be paid out of the Legal Aid Fund
pursuant to section 13 of the Legal Aid Act 1974, such Order
to be suspended for four weeks to allow the Law Society to
object if they wish; and That the costs incurred by the
Appellant from 23rd March 1987 be taxed in accordance with
Schedule 2 to the Legal Aid Act 1974.
Cler: Parliamentor
Judgment: 29.10.87
HOUSE OF LORDS
FERGUSON
(A.P.)APPELLANTS)
v.
WELSH AND OTHERS
(RESPONDENTS)
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Griffiths
Lord Oliver of Aylmerton
Lord Goff of Chieveley
LORD KEITH OF KINKEL
My Lords,
On 16 July 1976 the appellant (“Mr. Ferguson”) sustained an
accident, which left him paralysed from the waist downwards as a
result of a broken back, while he was engaged on demolition work
on a building at West Cornforth in the County of Durham. The
building was on a site owned by the respondents, Sedgefield
District Council, (“the council”) who were engaged in carrying out,
through their direct labour force, a scheme for providing sheltered
housing for the elderly. Work was well advanced on certain parts
of the scheme, and in order to make further progress it was
necessary to demolish the building in question. The council issued
invitations to tender for the demolition work to a number of
contractors on their approved list including the third defendant
(“Mr. Spence”).
The invitation to tender included the following condition:
“Prior approval must be obtained from the engineer for the
time being of the council before the employment of a sub-
contractor upon site. Any approved sub-contractor shall
secure public liability insurance cover to the satisfaction of
the council before being engaged on site.”
The specification of the works to be carried out included
the following clauses:
“. . .
2. All demolition works are to be carred out in
accordance with ‘THE BRITISH STANDARDS
INSTITUTION’ – ‘CODE OF PRACTISE FOR
DEMOLITION’ CP.94.
– 1 –
3. Pulling down shall be carried out in such a manner as
to cause as little inconvenience as possible to
adjoining owners or the public and the contractor will
be held responsible for any claims which may arise
from the disregard of this clause. The rubbish is to
be sprinkled with water to prevent dust arising and
all proper screens and protection provided to the
satisfaction of the engineer.
. . .
10. Possession of the site will be given to the contractor
immediately on signing the contract and he shall
proceed with the demolition and complete same as
soon as possible. It is essential that the whole of
this work be completed at the earliest possible
moment.
. . .
-
-
-
Every contractor (other than an individual contractor
i.e. a person who performs personally the demolition
operations without employing any workmen) must
appoint a competent person experienced in demolition
operations to supervise the work. -
All practicable steps are to be taken, both before and
during demolition works, to prevent danger to persons
employed from fire, or explosion through leakage or
accumulation of gas or vapour or flooding. Adjoining
parts of the building or structure being demolished
must not be overloaded with debris. Precautions
against premature collapse must be taken and
supervised by competent person, with adequate
experience in the operation specified:- (a) The actual
demolition of a building or structure or part thereof
unless there is no reasonably foreseeable risk of
collapse so as to endanger persons employed, (b) The
actual demolition of any part of a building or
structure where there is a special risk of collapse so
as to endanger persons employed.
-
-
. . .
24. The following materials arising from the demolition
are to remain the property of the employer and are
to be cleaned and stacked as noted where directed on
the site or otherwise disposed of as specifically
stated.
The remainder of the materials arising from the
demolition is to become the property of the
contractor and is to be carted away from the site to
a place provided by the contractor and the contractor
is to make due allowance in his tender for the value
of any sound materials so acquired or residual scrap
value arising.”
– 2 –
Mr. Spence put in a tender for the sum of £330, which was
accepted. On 7 July 1976 the council wrote to him confirming
that work should begin on 12 July. On 11 July Mr. Spence made
certain arrangements by telephone with the first and second
defendants (“the Welsh brothers”), who regularly undertook
demolition work. There was a conflict of evidence about the
nature of these arrangements, which will be discussed later. On
13 July 1976 one of the Welsh brothers met Mr. Ferguson in a
public house and offered him a job on demolition work, starting
next day. Mr. Ferguson accepted, and next morning the Welsh
brothers collected him in a van and took him to the building in
West Cornforth which was the subject of Mr. Spence’s demolition
contract with the council. One of the Welsh brothers, Mr.
Ferguson, and another man taken on by the Welsh brothers spent
that day and the next day removing some valuable articles from
the building and then dismantling its interior, removing partition
walls, pushing down ceilings and sawing through and removing
joists, and later, having been joined by others, in taking off slates
and dismantling the roof. Work continued on Friday, 16 July, and
by early afternoon the building was an empty shell except for
some joists across the top of the first floor rooms. Mr. Ferguson
and one of the Welsh brothers were standing on a wall preparing
to remove joists when a collapse occurred and both men fell to
the ground, Mr. Ferguson suffering the injuries in respect of which
he sues.
On 6 July 1979 Mr. Ferguson issued a writ in the Queen’s
Bench Division claiming damages against the Welsh brothers, Mr.
Spence, and the Council. The writ was served on 8 August 1980
and defences were served by all the defendants. Trial of the
action took place before Staughton J. at Newcastle upon Tyne
early in May 1984. Damages, if any should be awarded, had
previously been agreed at £150,000. Staughton J. held that the
Welsh brothers were liable in damages to Mr. Ferguson but that
Mr. Spence and the Council were not. He found that the system
adopted by the Welsh brothers for demolition of the building was
highly dangerous and in breach of various of the Construction
(Working Places) Regulations 1966 (S.I. 1966, No. 94) and of the
Construction (General Provisions) Regulations 1961 (S.I. 1961, No.
1580). For these breaches they were liable to Mr. Ferguson as
their employee. As regards the case against Mr. Spence,
Staughton J. had to deal with a conflict of evidence between him
and the Welsh brothers. According to the latter, it was agreed
with Mr. Spence that they should strip any valuable materials from
the building and level the chimneys and gables to ceiling height.
Their reward was to be the value of the materials which they
salved. Mr. Spence, on the other hand, gave evidence that the
agreement was to the effect that the Welsh brothers should take
away the rubbish when he himself had accomplished the demolition
of the building and that they should have the benefit of any
saleable salvaged material; that demolition could not start on 12
July because of restrictions imposed by the water authority which
inhibited him from using water to damp down dust; and that since
the Welsh brothers had no other work on hand they should, in the
meantime, start by taking away rubbish in the back yard and any
loose materials inside the building. Staughton J. rejected the
account given by the Welsh brothers and accepted that of Mr.
Spence, who he said in general impressed him as an honest and
truthful witness, whereas he could not regard the evidence of the
– 3 –
Welsh brothers as reliable. In that state of affairs he found that
Mr. Spence was not carrying out any demolition work himself, nor
was he doing so vicariously through the Welsh brothers, whom he
had not engaged or authorised to demolish the building. He
therefore held that Mr. Spence was not liable for breach of any of
the Regulations of 1961 because he was not performing any
operation to which these regulations applied. Staughton J. went on
to consider a case levelled against Mr. Spence on the ground that
he owed to Mr. Ferguson the common duty of care under the
Occupiers’ Liability Act 1957. He held that Mr. Spence was an
occupier of the premises, but found that the purposes for which
Mr. Ferguson had, through the Welsh brothers, been invited to be
there did not include the demolition of the building, in particular
the removal of joists at roof level. He expressed his finding in
the alternative fashion that, whereas Mr. Ferguson was a lawful
visitor to the premises on Wednesday, 14 July for the purpose of
removing rubbish, he was not a lawful visitor on Friday, 16 July
for the purpose of demolition.
As to the case against the council, Staughton J. found that
the council were not a contractor in relation to the building nor
were they an employer of workmen, and accordingly held that Mr.
Ferguson had no valid claim against them under the Regulations of
1966 nor under those of 1961. He held that although the Council
were an occupier of the premises along with Mr. Spence, the claim
against them under the Act of 1957 failed because they had issued
no invitation to Mr. Ferguson to be on the premises and had not
delegated to Mr. Spence the right to invite him. If Mr. Ferguson
was not a lawful visitor of Mr. Spence, he was not a lawful visitor
of the council.
Mr. Ferguson appealed to the Court of Appeal. Before the
appeal came on for hearing he discovered a number of things
which he considered would have had an important influence on the
result of the action if they had been in evidence at the trial. In
the first place, he obtained affidavits from four persons to the
effect that on various occasions before Mr. Ferguson’s accident
they had acted as or worked for sub-contractors to Mr. Spence for
demolition work, the work being carried out according to the same
dangerous system as that adopted in the present case. The precise
locations of the work carried out were not stated in the affidavits,
but in one case at least it seemed likely that Mr. Spence’s
demolition contract must have been with the council or their
predecessors, Spennymoor Urban District Council. In the second
place, he obtained information from the Northumbrian Water
Authority that at the time of the accident there were no
restrictions at all on the use of water for industrial purposes such
as damping down dust in the course of demolition work. In the
third place, Mr. Spence was on 29 January 1985 convicted of
conspiracy to steal at Teeside Crown Court and sentenced to four
months imprisonment, the evidence indicating that his dishonest
activities had been carried on over a period which spanned the
dates of the trial before Staughton J. The first of these matters
was important because at the trial Mr. Spence had given evidence
that he had never sub-contracted any demolition work for which he
had contracted with the council. The second was important
because of Mr. Spence’s evidence that he could not begin the
demolition work on 12 July because of the shortage of water for
damping down. The third tended to cast doubt upon Mr. Spence’s
general honesty and credibility.
– 4 –
Before the Court of Appeal Mr. Ferguson conducted his own
case. He sought leave to adduce further evidence about the three
matters mentioned above, with a view to a new trial being ordered
against both Mr. Spence and the council. On 16 September 1986
the Court of Appeal (Lawton, Slade and Mustill LL.J.) gave
judgment allowing a new trial as against Mr. Spence but not as
against the council. The leading judgment was given by Lawton
L.J. He expressed doubts as to whether the evidence about Mr.
Spence’s conviction should be admitted, but found it unnecessary to
decide that because in his view the evidence about water shortage
and about Mr. Spence’s practice of employing sub-contractors
appeared credible and likely to have an important effect on the
result of the action against Mr. Spence and could not with
reasonable diligence have been obtained for use at the original
trial: Ladd v. Marshall [1954] 1 WLR 1489. Its importance
was, of course, that it tended to indicate that Mr. Spence’s
evidence about the terms of his arrangement with the Welsh
brothers was untrue and the evidence of the latter was true. In
that situation Mr. Spence would be liable to Mr. Ferguson for
breaches of the Regulations of 1961. As regards the position of
the Council, Lawton L.J. expressed the opinion that, contrary to
the submission by their counsel, Staughton J. was right to hold
that they were occupiers of the building along with Mr. Spence.
In his view, however, Mr. Ferguson could not be said to have been
a lawful visitor of the council on the premises within the meaning
of the Act of 1957. They did not want him there and he was
there against their wishes. Accordingly, even on the new
evidence, Mr. Ferguson would have no prospect of establishing a
case against them under the Act of 1957.
Mr. Ferguson now appeals to your Lordships’ House, with
leave given here, against that part of the order of the Court of
Appeal which refused a new trial as against the council. The
importance to him of success is manifest. The Welsh brothers are
men of straw, and the prospects of Mr. Spence (who had no
relevant insurance at the time of the accident) being able to
satisfy an award of damages against him to the tune of £150,000
are probably remote.
The principal argument for Mr. Ferguson was related to the
application of the Occupiers’ Liability Act 1957. It was accepted
on behalf of the council that, for the purposes of the Act, they
were occupiers of the building along with Mr. Spence. Section 1(1)
of the Act of 1957 provides:
“The rules enacted by the two next following sections shall
have effect, in place of the rules of the common law, to
regulate the duty which an occupier of premises owes to his
visitors in respect of dangers due to the state of the
premises or to things done or omitted to be done on them.”
Subsection (2) provides, inter alia, that for the purposes of the
rules so enacted the persons who are to be treated as an
occupier’s visitors are the same (subject to an immaterial
exception) as the persons who would at common law be his
invitees or licensees. So the first matter for consideration is
whether in relation to the council Mr. Ferguson was their visitor.
It is to be considered in the light of the prospect that at a new
– 5 –
trial it would be established that Mr. Spence sub-contracted the
demolition to the Welsh Brothers, so that he invited the latter to
come onto the premises with persons employed by them such as
Mr. Ferguson, so as to make Mr. Ferguson his visitor. The
contract between the council and Mr. Spence prohibited sub-
contracting without the consent of the council. No consent for
the sub-contract for the Welsh brothers was asked for or given,
and counsel for Mr. Ferguson did not suggest that the council
knew that Mr. Spence had unlawfully sub-contracted. It was
maintained, however, that by putting Mr. Spence into occupation of
the building for purposes of demolition the council had clothed him
with apparent or ostensible authority to invite other persons onto
the premises, including sub-contractors and their employees. Such
persons would know nothing of the limitation on Mr. Spence’s
actual authority, and were not reasonably to be treated as
trespassers in a question with the council. In my opinion, there is
evidence capable of establishing that Mr. Spence had ostensible
authority from the council to invite the Welsh brothers and their
employers onto the site. Mr. Spence was placed in control of the
site for demolition purposes, and to one who had no knowledge of
the council’s policy of prohibiting sub-contracts this would indicate
that he was entitled to invite whomsoever he pleased onto the site
for the purpose of carrying out demolition.
The next question is whether the council were in breach of
the common duty of care owed to visitors under the Act of 1957,
which is thus expressed in section 2(2):
“The common duty of care is a duty to take such care as in
all the circumstances of the case is reasonable to see that
the visitor will be reasonably safe in using the premises for
the purposes for which he is invited or permitted by the
occupier to be there.”
The safety referred to is safety not only from dangers due
to the state of the premises but also known dangers due to things
done or omitted to be done on them.
A problem at once arises as to the purposes for which the council
is to be taken as having invited Mr. Ferguson to be on the
premises, and as to whether in taking part in the demolition of
the building he was using the premises for these purposes. I
consider that the council, having put Mr. Spence into occupation of
the premises and thus put him into a position to invite the Welsh
brothers and their employees onto them for the purpose of
demolishing the building, must be taken to have invited Mr.
Ferguson in for that purpose. It is more difficult to hold that Mr.
Ferguson was, within the meaning of the subsection, using the
premises for the purpose of demolishing the building, but, assuming
that he was, the question remains whether the absence of
reasonable safety which resulted in the accident arose out of his
use of the premises. The absence of safety arose directly out of
the system of work adopted by the Welsh brothers, and the nature
of the instructions given by them to Mr. Ferguson as to how he
should go about performing his work for them. It would be going
a very long way to hold that an occupier of premises is liable to
the employee of an independent contractor engaged to do work on
the premises in respect of dangers arising not from the physical
state of the premises but from an unsafe system of work adopted
– 6 –
by the contractor. In this connection, however, it is necessary to
consider section 2(4)(b) of the Act, which provides:
“Where damage is caused to a visitor by a danger due to
the faulty execution of any work of construction,
maintenance or repair by an independent contractor
employed by the occupier, the occupier is not to be treated
without more as answerable for the danger if in all the
circumstances he had acted reasonably in entrusting the
work to an independent contractor and had taken such steps
(if any) as he reasonably ought in order to satisfy himself
that the contractor was competent and that the work had
been properly done.”
The enactment is designed to afford some protection from liability
to an occupier who has engaged an independent contractor who has
executed the work in a faulty manner. It is to be observed that
it does not specifically refer to demolition, but a broad and
purposive interpretation may properly lead to the conclusion that
demolition is embraced by the word “construction.” Further the
pluperfect tense employed in the last words of the paragraph “the
work had been properly done” might suggest that there is in
contemplation only the situation where the work has been
completed, but has been done in such a way that there exists a
danger related to the state of the premises. That would, however,
in my opinion, be an unduly strict construction, and there is no
good reason for narrowing the protection afforded so as not to
cover liability from dangers created by a negligent act or omission
by the contractor in the course of his work on the premises. It
cannot have been intended not to cover, for example, dangers to
visitors from falling masonry or other objects brought about by the
negligence of the contractor. It may therefore be inferred that an
occupier might, in certain circumstances, be liable for something
done or omitted to be done on his premises by an independent
contractor if he did not take reasonable steps to satisfy himself
that the contractor was competent and that the work was being
properly done.
It would not ordinarily be reasonable to expect an occupier
of premises having engaged a contractor whom he has reasonable
grounds for regarding as competent, to supervise the contractor’s
activities in order to ensure that he was discharging his duty to
his employees to observe a safe system of work. In special
circumstances, on the other hand, where the occupier knows or has
reason to suspect that the contractor is using an unsafe system of
work, it might well be reasonable for the occupier to take steps
to see that the system was made safe.
The crux of the present case therefore, is whether the
council knew or had reason to suspect that Mr. Spence, in
contravention of the terms of his contract, was bringing in cowboy
operators who would proceed to demolish the building in a
thoroughly unsafe way. The thrust of the affidavit evidence
admitted by the Court of Appeal was that Mr. Spence had long
been in the habit of sub-contracting his demolition work to persons
who proceeded to execute it by the unsafe method of working
from the bottom up. If the evidence went the length of indicating
that the council knew or ought to have known that this was Mr.
Spence’s usual practice, there would be much to be said for the
– 7 –
view that they should be liable to Mr. Ferguson. No responsible
council should countenance the unsafe working methods of cowboy
operators. It should be clearly foreseeable that such methods
exposed the employees of such operators to very serious dangers.
It is entirely reasonable that a council occupying premises where
demolition work is to be executed should take steps to see that
the work is carried out by reputable and careful contractors.
Here, however, the council did contract with Mr. Spence subject to
the condition that sub-contracting without their consent was
prohibited. The fresh evidence sought to be adduced by Mr.
Ferguson does not go the length of supporting any inference that
the council or their responsible officers knew or ought to have
known that Mr. Spence was likely to contravene this prohibition.
The evidence related largely to the late sixties and early
seventies, before the respondent council came into existence. It is
common knowledge that the local authorities which came into
existence as a result of the reorganisation of 1974 did not by any
means correspond precisely to those which existed previously, and
also that there were far-reaching transfers of personnel and
considerable confusion. While some of Mr. Spence’s earlier
demolition activities may have been carried out for Spennymoor
Urban District Council, it does not follow that the present
respondents had any reason to suspect his competence or honesty
at the material time. I conclude that the evidence in question
would not be likely to have an important effect on the result of
the action so far as directed against the council.
Counsel for Mr. Ferguson relied also on certain documents
which after the hearing before the Court of Appeal became
available from the office of the council’s architects. At the trial
there was evidence that on the second day of the demolition
activity two persons, who it was suggested were officials of the
council, appeared on the site and complained about the raising of
dust which was damaging new paintwork in adjoining houses under
construction. This evidence was sought to be used for the purpose
of establishing knowledge on the part of the council of the manner
in which the building was being demolished. The documents in
question consisted of two works progress reports by a clerk of
works employed by the architects, one of which made reference to
nuisance from dust caused by the demolition, and a letter from
the architects to the council, dated 23 July 1976, complaining
about the same matter. The documents tend to identify the clerk
of works and one of the architects as being the persons who
visited the site and complained about dust, but do not otherwise
carry matters further. The architects were independent
contractors and there is no evidence that they or anyone in their
employment informed the council, before the accident, about
anything which they observed in the course of the site visit.
In my opinion, Mr. Ferguson has not demonstrated sufficient
grounds for reopening the case against the council so far as based
on the Act of 1957. His alternative case, based on the ordinary
common law duty of care does not raise any considerations of a
different nature to those applicable to the statutory case.
It was argued for the council that the fresh evidence about
Mr. Spence’s earlier demolition activities could with reasonable
diligence have been discovered before the trial, and should have
been because it was directly relevant to Mr. Ferguson’s pleaded
– 8 –
case that the council negligently employed an incompetent
contractor, a case which was dropped at the conclusion of the
trial. Accordingly, the evidence should on that ground not be
admitted as against the council. I consider that there is much
force in that submission, but the Court of Appeal having in the
exercise of their discretion decided to admit the evidence as
against Mr. Spence, on the basis that there had been no lack of
due diligence in discovering it, I would not be disposed to take a
different view in relation to the case against the council.
My Lords, for these reasons I would dimiss the appeal.
LORD BRANDON OF OAKBROOK
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Keith of Kinkel. I
agree with it, and for the reasons which he gives I would dismiss
the appeal.
LORD GRIFFITHS
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Keith of Kinkel. I
agree that the appeal should be dismissed for the reasons which he
has given.
LORD OLIVER OF AYLMERTON
My Lords,
I have had the advantage of reading in draft the speech
prepared by my noble and learned friend, Lord Keith of Kinkel. It
is possible to envisage circumstances in which an occupier of
property engaging the services of an independent contractor to
carry out work on his premises may, as a result of his state of
knowledge and opportunities of supervision, render himself liable to
an employee of the contractor who is injured as a result of the
defective system of work adopted by the employer. But I incline
to think that his liability in such case would be rather that of
joint tortfeasor than of an occupier. Whether or not that is so,
however, the additional evidence in the instant case is quite
insufficient to lead to the conclusion that such a claim against the
respondent council could be supported. I agree, therefore, that the
appeal should be dismissed for the reasons which my noble and
learned friend has given.
– 9 –
LORD GOFF OF CHIEVELEY
My Lords,
The question on this appeal is whether, in the light of the
fresh evidence now available which persuaded the Court of Appeal
to order a new trial as against Mr. Spence, a new trial should
likewise be ordered as against the respondent council. The
principal submission advanced on behalf of Mr. Ferguson was that
such a new trial should be ordered, on the basis that the council
might be held liable under the Occupiers’ Liability Act 1957. Like
my noble and learned friend, Lord Keith of Kinkel, I am unable to
accept this submission, though I have reached that conclusion by a
rather different route.
I, for myself, can see no difficulty in law in reaching a
conclusion that Mr. Ferguson may have been a lawful visitor in
relation to Mr. Spence but a trespasser in relation to the council.
Once it is accepted that two persons may be in occupation of the
same land, it seems to me inevitable that on certain facts such a
conclusion may have to be reached. If it be the case that one
only of such occupiers authorises a third person to come onto the
land, then plainly the third person is, vis-à-vis that occupier, a
lawful visitor. But he may not be a lawful visitor vis-à-vis the
other occupier. Whether he is so or not must, in my opinion,
depend upon the question whether the occupier who authorised him
to enter had authority, actual (express or implied) or ostensible,
from the other occupier to allow the third party onto the land. If
he had, then the third party will be, vis-à-vis that other occupier,
a lawful visitor; if he had not, then the third party will be, vis-à-
vis that other occupier, a trespasser. No doubt, in the ordinary
circumstances of life, the occupier who allows the third party to
come onto the land will frequently have implied or ostensible
authority so to do on behalf of the other occupier – as will, I
think, usually be the case when the first occupier is a builder, in
occupation of a building site with the authority of the building
owner, who authorises a servant or independent contractor to come
onto the site. But this may not always be so, as for example
where the third party is aware that the building owner has
expressly forbidden the builder to allow him on the site. These
problems have, as I see it, to be solved by the application of the
ordinary principles of agency law.
I am content to assume, for the purposes of the present
appeal, that there is evidence capable of establishing that Mr.
Spence did have the ostensible authority of the council to allow
the Welsh brothers (and, through them, Mr. Ferguson) onto the
land. Even so, in my judgment Mr. Ferguson’s action against the
council must fail because I cannot see how the council could be
held liable to him, in particular under the Occupiers’ Liability Act.
On the assumption that Mr. Ferguson was the lawful visitor
of the council on the land, the council owed to him the common
duty of care, i.e. a duty “to take such care as in all the
circumstances of the case is reasonable to see that the visitor will
be reasonably safe in using the premises for the purposes for
which he is invited or permitted by the occupier to be there” see
– 10 –
section 2(2) of the Act. I have emphasised the words “in using
the premises” because it seems to me that the key to the problem
in the present case lies in those words. I can see no basis, even
on the evidence now available, for holding that Mr. Ferguson’s
injury arose from any breach by the council of that duty. There
can, no doubt, be cases in which an independent contractor does
work on premises which result in such premises becoming unsafe
for a lawful visitor coming upon them, as when a brick falls from
a building under repair onto the head of a postman delivering the
mail. In such circumstances the occupier may be held liable to
the postman, though in considering whether he is in breach of the
common duty of care there would have to be considered (inter
alia) the circumstances specified in section 2(4)(b) of the Act. But
if I ask myself, in relation to the facts of the present case,
whether it can be said that Mr. Ferguson’s injury arose from a
failure by the council to take reasonable care to see that persons
in his position would be reasonably safe in using the premises for
the relevant purposes, the answer must, I think, be no. There is
no question as, I see it, of Mr. Ferguson’s injury arising from any
such failure; for it arose not from his use of the premises but
from the manner in which he carried out his work on the
premises. For this simple reason, I do not consider that the
Occupiers’ Liability Act has anything to do with the present case.
I wish to add that I do not, with all respect, subscribe to
the opinion that the mere fact that an occupier may know or have
reason to suspect that the contractor carrying out work on his
building may be using an unsafe system of work can of itself be
enough to impose upon him a liability under the Occupiers’
Liability Act, or indeed in negligence at common law, to an
employee of the contractor who is thereby injured, even if the
effect of using that unsafe system is to render the premises
unsafe and thereby to cause the injury to the employee. I have
only to think of the ordinary householder who calls in an
electrician; and the electrician sends in a man who, using an
unsafe system established by his employer, creates a danger in the
premises which results in his suffering injury from burns. I cannot
see that, in ordinary circumstances, the householder should be held
liable under the Occupiers’ Liability Act, or even in negligence,
for failing to tell the man how he should be doing his work. I
recognise that there may be special circumstances which may
render another person liable to the injured man together with his
employer, as when they are, for some reason, joint tortfeasors; but
such a situation appears to me to be quite different.
On the evidence in the present case, I can see no special
circumstances by reason of which the council, as occupier, might
be held liable to Mr. Ferguson under the Act. Nor can I see any
other basis upon which the council might be held liable to him. In
these circumstances, though I feel great sympathy for Mr.
Ferguson, I agree that his appeal must be dismissed.
– 11 –
Source: https://www.bailii.org/
