Ferguson v Welsh

An occupier who reasonably engages a competent independent contractor ordinarily need not supervise the contractor’s system of work for its employees. Special circumstances may require intervention where the occupier knows or has reason to suspect that an unsafe system is being used.

Section 2(4)(b) of the Occupiers’ Liability Act 1957 can extend to demolition and to dangers negligently created while work is in progress. Liability nevertheless depends on the circumstances and the connection between the danger, the visitor’s use of the premises and the occupier’s conduct. Fresh evidence justifies a new trial only where the applicable requirements, including likely importance to the result, are met.

The appellant was seriously injured while employed by the Welsh brothers in demolishing a building occupied by a district council and its demolition contractor, Mr Spence. The trial judge held the Welsh brothers liable but dismissed the claims against Mr Spence and the council.

The Court of Appeal admitted fresh evidence and ordered a new trial against Mr Spence. It refused a new trial against the council because the evidence offered no prospect of establishing liability under the Occupiers’ Liability Act 1957. The appellant appealed only against that refusal.

The central issues were whether the contractor had ostensible authority to make the appellant a lawful visitor of the council, whether the council could be liable for an unsafe system of work adopted by an independent contractor, and whether the fresh evidence could materially affect the claim against the council.

1. The appeal was dismissed unanimously. Lord Keith of Kinkel delivered the leading speech. Lord Brandon of Oakbrook and Lord Griffiths expressly agreed with his reasons. Lord Oliver of Aylmerton and Lord Goff of Chieveley agreed in the disposition, although they added qualifications or followed a different route.

2. Per Lord Keith, evidence was capable of showing that Mr Spence had ostensible authority from the council to invite the subcontractors and their employees onto the site. Placing a demolition contractor in control of a site could indicate to a person unaware of contractual restrictions that the contractor could invite others there for demolition work. Lord Goff likewise treated the question as governed by ordinary agency principles, but only assumed ostensible authority for the appeal’s purposes.

3. Per Lord Keith, section 2(4)(b) of the Occupiers’ Liability Act 1957 should receive a broad and purposive construction. “Construction” could embrace demolition. The provision was not confined to defective work already completed; it could cover dangers negligently created by an independent contractor while work was in progress.

4. Per Lord Keith, an occupier who has reasonable grounds for regarding an independent contractor as competent ordinarily need not supervise the contractor’s compliance with its duty to provide employees with a safe system of work. Special circumstances may justify intervention where the occupier knows or has reason to suspect that an unsafe system is being used. The new evidence did not show that the council knew or ought to have known that Mr Spence would breach the prohibition on subcontracting or employ unsafe operators. It was therefore unlikely to affect the result against the council.

5. Lord Oliver considered that liability arising from an occupier’s knowledge and opportunities for supervision might more naturally be liability as a joint tortfeasor than as an occupier. Lord Goff considered that the injury arose from the manner in which the appellant performed his work, rather than from his use of the premises. He rejected the suggestion that knowledge or suspicion of an unsafe system could, without more, impose liability under the Act or at common law.

6. The alternative common-law negligence claim added nothing material. The Court of Appeal’s order refusing a new trial against the council was affirmed.

1. House of Lords: The appeal in [1987] UKHL 14 was dismissed and the Court of Appeal’s order refusing a new trial against the council was affirmed.
2. Court of Appeal: The court admitted fresh evidence and ordered a new trial against Mr Spence, but refused a new trial against the council.
3. Queen’s Bench Division: Staughton J held the Welsh brothers liable, but dismissed the claims against Mr Spence and the council.