Yates v National Trust

An occupier does not ordinarily owe a contractor’s employee a duty to ensure that an apparently competent independent contractor selects safe workers or methods. Liability may arise in exceptional circumstances where the occupier knows, or has reason to suspect, that the contractor is incompetent or using an unsafe system. The dangerous nature of work alone is insufficient. A relevant measure of control, or an assumption of responsibility, may establish proximity. Internal health and safety procedures may inform breach, but cannot create a duty of care. Even if a duty to select a competent contractor existed, extensive satisfactory previous work could justify treating the contractor as competent and safe.

The claimant, a tree surgeon working as part of Joe Jackman’s team, suffered permanent paraplegia after falling while dismantling a diseased horse chestnut tree at Morden Lodge, a National Trust property. He claimed that the National Trust was negligent in selecting Jackman, in failing to ensure that the work was safely organised, and under the Work at Height Regulations 2005.

The National Trust had contracted with Jackman, an independent contractor. Its warden identified the tree and the proposed work, but did not direct the method of work. The central issues were whether the Trust owed the claimant a relevant duty of care and, if so, whether it had negligently selected Jackman or should have supervised the work.

The claim was dismissed.

1. The National Trust owed the claimant the common duty under section 2(2) of the Occupiers Liability Act 1957 as a lawful visitor. That duty was not relevant, because the injury arose from the claimant’s tree-surgery activity rather than the state of the premises. The question therefore had to be determined under the common law.

2. Applying the approach in Caparo Industries plc v Dickman [1990] 2 AC 605, the Trust did not owe the claimant a duty of care in selecting Jackman as an independent contractor. The claimant was Jackman’s employee or team member, and looked exclusively to Jackman for instructions. The Trust exercised no equivalent control over the work.

3. Bottomley v Todmorden Cricket Club [2003] EWCA Civ 1575 concerned an exceptionally dangerous and unusual pyrotechnic display. Tree surgery was hazardous, but was not in the same category. The decision did not establish a general duty on occupiers to protect employees of competent contractors from ordinary risks of their calling.

4. Ferguson v Welsh [1987] 1 WLR 1553 and Fairchild v Glenhaven Funeral Services [2002] 1 WLR 1052 supported the conclusion that an occupier engaging a contractor reasonably regarded as competent may ordinarily leave the contractor to select the workers and method of work. Exceptional circumstances may arise where the occupier knows or has reason to suspect that the contractor is using an unsafe system or bringing in manifestly incompetent sub-contractors.

5. The Trust had no control over the claimant within the meaning relevant to the Work at Height Regulations 2005. It had suggested sectional felling but had not insisted on that method. The Regulations therefore imposed no duty on the Trust in the circumstances.

6. Even assuming a duty to select a competent and safe contractor, the Trust was not negligent. Jackman had carried out numerous previous assignments satisfactorily, including work on substantial and tall trees. The Trust was entitled to regard him as competent and safe. Causation and contributory negligence did not need to be decided.