Clark v Hosier & Dickson Ltd.

In apportioning liability between an occupier and building contractors, an appellate court may intervene where the responsibilities are plainly unequal. Contractors who expose an electricity service must identify existing services, provide proper supervision, obtain competent advice and give accurate hazard information. Reburying a cable near the surface without accurately recording its position may create the very danger that causes injury. An occupier warned of the danger must take reasonable steps to obtain competent advice, but its failure to act may be materially less blameworthy than the contractors’ incompetence. Liability was therefore apportioned two-thirds to the contractors and one-third to the occupier.

Method & Madness, the occupier and second defendant, commissioned Mr Clark to install gates during improvement works. Hosier & Dickson, the building contractors, were responsible for preparatory works to the entrance and driveway. Their subcontractors uncovered and reburied a mains electricity cable, then withdrew from the site. Mr Clark later drilled according to inaccurate information about the cable’s position and was injured.

Damages had been agreed at £185,000. The Reading County Court held the first and second defendants equally responsible. Method & Madness appealed, contending that Hosier & Dickson should bear two-thirds of the responsibility. The central issue was whether equal apportionment was justified in light of the parties’ contractual and common-law responsibilities.

The appeal was allowed. The contractors were held two-thirds responsible for the accident and Method & Madness one-third responsible. The respondents were ordered to pay the appellants’ costs of the appeal.

1. Appellate intervention. Although the Court of Appeal is reluctant to interfere with a trial judge’s apportionment of liability, it should intervene where it is plain that the parties’ responsibilities are unequal and the allocation is plainly wrong.
2. Contractors’ responsibility. Contractors undertaking works of this kind should take advance steps to locate existing services and decide how to deal with them. They must provide proper supervision and ensure that persons exposing services know how to proceed safely. Where competent advice is required, the matter should be referred to the project architect or the service provider. The subcontractor’s employee acted incompetently by reburying the cable near the surface, failing to record its precise position and supplying inaccurate information. That conduct created the hazard which caused the accident.
3. Occupier’s responsibility. The parties accepted that the owners remained occupiers for the purposes of the Occupiers Liability Act 1957 and owed the claimant the common duty of care. Once informed of the cable, Mr Williams should have contacted the architect or the Electricity Board, or insisted that the subcontractor do so. The occupier was therefore rightly found negligent, but its blameworthiness did not match that of the contractors.
4. Apportionment. The contractors’ multiple breaches, including inadequate supervision, unsafe treatment of the cable and inaccurate information, made their responsibility substantially greater than that of the occupier.

• Court of Appeal (Civil Division) allowed the second defendant’s appeal and varied the apportionment to two-thirds against Hosier & Dickson and one-third against Method & Madness.
• Reading County Court held the first and second defendants equally responsible for the claimant’s accident.