Rowe v Herman

An employer is generally not liable for negligence by an independent contractor reasonably believed to be competent. Liability arises only where the employer owes the injured person a direct duty which cannot be delegated. The highway exception is narrow. It concerns work carried out on a highway under statutory powers, where the danger arises directly from work which the employer is required to do and is integral to that work. It does not extend to a hazard created by a contractor during private-land works merely because the hazard remains on the highway after the contractor leaves. The employer does not acquire a new duty to take active steps to remove a danger for which he was not legally responsible during the works.

The claimant, who occupied a flat next to premises where a garage was being constructed, tripped over metal plates left across the footway. He sued the owners, the building contractor and the highway authority. The first owner applied to strike out the negligence claim. A district judge initially allowed the application, but Judge Viljoen allowed the claimant’s appeal and held that the occupier owed a duty when the contractor withdrew to ensure that no hazard remained. The owner appealed to the Court of Appeal. The central issue was whether such a post-completion duty existed, or whether the highway exception to the independent-contractor rule applied.

1. Disposition. Lord Justice Simon Brown delivered the judgment, with Lord Justice Morritt and Sir Brian Neill agreeing. The appeal was allowed and the claim against the first defendant was struck out as disclosing no cause of action.
2. General rule. An employer is not vicariously liable for the negligence of an independent contractor reasonably believed to be competent. Liability in the recognised exceptions is direct, arising from a duty owed personally by the employer which cannot be delegated. The principle was supported by Salsbury v Woodland and Others [1970] 1 QB 324.
3. Highway exception. The exception for highway dangers is a separate and narrow category. It applies where work is carried out on a highway under statutory powers which leave the employer with a direct duty to protect highway users. The danger must arise directly from work which the employer is required to undertake and must be integral to that work. It does not extend to casual or collateral negligence by the contractor. Penny v The Wimbledon Urban District Council [1899] 2 QB 72 was distinguishable because the soil obstructing the highway had to be dug up under the contract. Hardaker v Idle District Council [1896] 1 QB 335 illustrated the same integral-work principle.
4. Application. The garage works were on private land. The plates were placed across the footway at the contractor’s initiative, and there was no pleaded allegation or evidence that they were necessary for constructing the garage or delivering materials. The possible relevance of permission under the Highways Act 1980, section 139, and possible safety or removal conditions analogous to section 139(2)(f), did not alter that conclusion. The owners could not have been liable on the pleaded case while the works were in progress.
5. The contractor’s departure did not create a new or springing duty. The owners had no control over the contractor’s clearing-up and could not be required to take active steps to remedy a danger which they had not created and for which they were not legally responsible. An occupier’s responsibility for dangers on his own land did not make him an occupier of the adjacent highway. Costs orders were made, and leave to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division) allowed the first defendant’s appeal and struck out the claim against him. The decision is reported at [1997] EWCA Civ 1633.
2. Barnet County Court — District Judge Karet initially allowed the strike-out application on 18 July 1996. Judge Viljoen allowed the claimant’s appeal on 19 September 1996 and refused the first defendant’s application.