Salsbury v Woodland

An employer is generally not liable for an independent contractor’s negligence. A direct, non-delegable duty may arise where the work is inherently or exceptionally hazardous, where a statute imposes responsibility, or where authorised work upon a highway creates danger. Work does not become inherently dangerous merely because its negligent performance could injure others. Nor does work near a highway form a separate category imposing liability.

A judge may inspect a public place alone to understand plans, photographs and other evidence, provided the visit involves no reconstruction and changed conditions cause no unfairness. A reconstruction or demonstration should take place with both parties given an opportunity to attend.

The plaintiff was injured after an independent contractor negligently felled a hawthorn tree in a garden. The tree brought down telephone wires across a road. When the third defendant’s car approached and struck the wires, the plaintiff threw himself to the ground and aggravated a pre-existing spinal condition.

Paull J awarded £6,500 against the householder, contractor and driver. The contractor did not contest liability. The householder appealed on the ground that he was not responsible for a competent independent contractor’s negligence. The driver challenged the finding of negligence and argued that the judge’s unaccompanied visit to the accident site invalidated the judgment.

1. Disposition. The first defendant’s appeal was allowed and the judgment against him was set aside. The third defendant’s appeal was dismissed. Widgery, Harman and Sachs LJJ agreed in both respects.
2. Independent contractors. The general rule is that an employer is not vicariously liable for an independent contractor’s negligence. Liability in the recognised exceptional classes rests upon a direct duty owed by the employer which cannot be delegated. The mere fact that contracted work may cause injury if performed negligently does not create such a duty.
3. Inherently dangerous work. Removing the hawthorn was not inherently or exceptionally hazardous. The undisputed evidence showed that a competent worker could lop it to a short stump and remove the roots without danger. The trial judge therefore applied an excessively wide principle. The rule concerning hazardous work, illustrated by Honeywill & Stein Ltd v Larkin Bros [1934] 1 KB 191, did not apply.
4. Work near a highway. Work performed upon a highway under statutory authority forms a recognised class because the person commissioning it owes highway users a direct duty. No corresponding class applies merely because work is performed near a highway and could endanger users if done carelessly. Holliday v National Telephone Co [1899] 2 QB 392 concerned a source of danger situated on the highway. The wider observations in Walsh v Hoist & Co Ltd [1958] 1 WLR 800 were obiter and too broadly stated.
5. The judge’s view. Under Order 35 rule 8(1) of the Rules of the Supreme Court, a judge may inspect a relevant place or thing. An unaccompanied inspection of a public accident site may be permissible where it merely assists understanding of the evidence. A reconstruction or demonstration requires the parties to be present or given an opportunity to attend. There was no material change, reconstruction or prejudice here.
6. Driver’s negligence. The trial judge was entitled to use the site visit when deciding whether a careful driver should have seen the wires. Because the visit gave him an evidential advantage unavailable to the appellate court, his factual finding of negligence was not disturbed.

1. Court of Appeal: The first defendant’s appeal was allowed and the judgment against him was set aside. The third defendant’s appeal was dismissed with costs. Applications for leave to appeal to the House of Lords were refused.
2. High Court, Paull J: On 1 July 1968 the plaintiff was awarded £6,500 damages against all three defendants. No citation for that decision is stated.