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Cite as: [2003] EWCA Civ 1575

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Neutral Citation Number: [2003] EWCA Civ 1575
Case No: B3/2003/0038

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
Simon J

Royal Courts of Justice
Strand,
London, WC2A 2LL
7th November 2003

B e f o r e :

LORD JUSTICE BROOKE
LORD JUSTICE WALLER
and
LORD JUSTICE CLARKE

____________________

Between:
MICHAEL JOHN BOTTOMLEY
Claimant/
Respondent
- and


TODMORDEN CRICKET CLUB
1st Defendants/
Appellants

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

Philip Havers QC & Peter Cowan (instructed by Berrymans Lace Mawer) for the Appellants
Michael Shorrock QC & Richard Pearce (instructed by The Thrasher Walker Partnership) for the Respondent

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    INDEX

    Part No   Para No
    1 Introduction: How Mr Bottomley was injured 1
    2 Findings of fact  
          (i) The witnesses of fact 13
          (ii) The expert witnesses 14
          (ii) The judge's findings of fact 16
    3 The judge's conclusions on the law 18
    4 The arguments on the appeal 30
    5 Did the Occupiers' Liability Act 1957 supersede Honeywill v Larkin? 31
    6 Was the judge right in his finding that the club failed to take care when selecting CE? 32
    7 Did the club owe Mr Bottomley a relevant duty of care? 41

    Lord Justice Brooke :

    1. Introduction: How Mr Bottomley was injured

  1. This is an appeal by the first defendants, who are the secretary and members of the Todmorden Cricket Club ("the club"). They are appealing against a judgment entered for the claimant Michael John Bottomley against them on 18th December 2002 by Simon J, sitting in Manchester, for an amount to be determined. Judgment was also entered for the claimant against the second and third defendants Mark Hindle and David Read. As between those two defendants liability was apportioned 75:25 respectively, and the judge also directed that they were liable to contribute 100% to the judgment against the club. Neither Mr Hindle nor Mr Read sought to appeal against the judge's orders.
  2. The action arose out of the serious injuries Mr Bottomley sustained on the evening of 7th November 1997 when the club was holding its annual fundraising event at their premises in Burnley Road, Todmorden. Mr Hindle and Mr Read were conducting a pyrotechnic display. Their contribution to the evening was to culminate in the lighting of the bonfire, which would be followed by a conventional fireworks display. They were members of a two-man stunt team called Chaos Encounter ("CE"), and they had invited Mr Bottomley along to help them carry out their show.
  3. Mr Bottomley's task at the material time was concerned with a pair of mortars. These mortars were metal tubes set into the ground which had been filled with petrol. His job was to prime the mortars by lowering Black Powder (gunpowder) in a plastic bag into the mortar. The charge contained an electrical igniter that could be fired remotely by applying a voltage from a car battery across the end of the attached firing cable. As he was placing the gunpowder charge into the second mortar tube, the contents of the mortar tube ignited and exploded in his face, causing him severe burns and a broken arm. His advisers are valuing his claim at between 250,000 and 300,000.
  4. The club's action group, a sub-committee of the club which had a general responsibility for fundraising activities ("the committee"), was in charge of the bonfire event. This was chaired by Mr Gledhill, and his principal helpers were Mr Crossley, Mr Heywood and Mr Walters. Their relationship with CE had started in 1995. In that year Mr Read made two presentations, the first to Mr Gledhill and a few others, and the second to a larger group of members of the committee. There was an issue as to what was said at these meetings about CE's insurance position. What is not in dispute is that Mr Read produced material and photographs showing various stunts, including work for TV. On the basis of these presentations CE performed a flame-throwing and fire-breathing act on 3rd November 1995 which culminated in the lighting of the bonfire. CE was paid 50 for its services.
  5. At the same event in 1996 CE performed what Mr Read described as a "comedy action show" based on an escapologist act. The show ended with an explosion of pyrotechnics on the bonfire and Mr Hindle jumping off the bonfire on to crash mats below. The committee did not intend to ask CE to perform at the same event the following year; but Mr Read was keen to perform a stunt as a tribute to his brother who had recently been killed. The committee agreed on the basis that there would be no payment other than a sum raised independently which would go towards expenses.
  6. Some days before 7th November 1997 Mr Read approached Mr Bottomley. He told him that he was doing the show and asked whether he would be prepared to help on a voluntary basis. Mr Bottomley agreed. Although he had helped Mr Read and Mr Hindle in the past to set up one of their pyrotechnic shows and had also videoed a show, he had no previous experience of stunt work or pyrotechnics.
  7. Mr Bottomley arrived at the club at about 5.30 pm on the night of the bonfire. He was walked round the site by Mr Read and told what he was to do. Mr Read's plan had a number of different features. There were two sets of mortars. Mortar 1 was close to a van which Mr Read was to drive as part of the act. Mortar 2 was behind the bonfire. Each mortar would be controlled by its own fire and observation post. Post A was away from the audience. It was to be manned by Mr Bottomley and used to ignite Mortar 2. Post B was near the audience. It was to be manned by Mr Hindle and used to ignite Mortar 1. An important feature of the plan was that each post was in line of sight of the mortar which it would ignite. Mr Bottomley was to prime both sets of mortars shortly before ignition and then retire to a safe distance. While this was going on, Mr Hindle was to entertain the crowd.
  8. Once Mr Hindle had seen that Mr Bottomley had safely returned to Post A, and had exchanged a thumbs up signal with Mr Bottomley and Mr Read, he would begin the countdown. At the end of the countdown, he would ignite Mortar 1 from Post B. This would be the signal for Mr Read to drive the van filled with pyrotechnics towards a pallet in front of the bonfire. This pallet would appear to burst into flames on impact. At the same time Mr Bottomley was to ignite Mortar 2 from Post A. A crucial safety feature of this plan was that Mr Hindle would not start the countdown until he had a clear view of Mortar 1 and had exchanged a thumbs-up sign with the other two men.
  9. The judge commented that even if everything went according to plan there were inherent dangers in what was proposed. A plan which depended on visual contact in relative darkness was potentially unsafe. What was more, according to a reconstruction drawn by Dr Beeley, an expert witness who gave evidence at the trial, Post B was not in Post A's line of sight. There would therefore be difficulties in the thumbs-up exchange between Mr Bottomley and Mr Hindle. Mr Read said that this was an error, and that Post B was nearer the van than was shown on Dr Beeley's plan. The judge said that if this was correct it was likely to be out of the line of sight of Mortar 1, which would be behind the van.
  10. The judge added that a curious feature of the case revolved around the uncertainty as to who was to be responsible for the ignition of the mortars. Mr Bottomley seems to have thought that once he had primed the two mortars, it was his task to ignite them both by completing the electrical circuit. He would do this by bringing two wires together at Post A. Although Mr Read had talked through his plan with him, he appears to have misunderstood what his duties were. In the event, things did not go according to plan.
  11. Mr Hindle had a number of tasks to perform under Mr Read's plan. He was to encourage the crowd. He was to act in the stunt, pretending to persuade Mr Read to get into the van. He was to hand a dummy switch to members of the crowd to give them the impression that they were firing the mortars. And he was to begin the countdown and ignite Mortar 1. In the event, there was a breakdown of CE's public address system so that Mr Read was unable to hear Mr Hindle's countdown. As a result, in Mr Read's words, CE "had to improvise". Mr Hindle told Mr Read that he would know when the countdown began, and Mr Read assumed the firing of Mortar 1 would be the signal. When the stunt was already hazardous, the judge said that the need to improvise added a further element of risk.
  12. So far as the club and the committee were concerned, Mr Crossley was in charge of liaison with CE. He told the judge he was not aware that Mr Bottomley was present on the night helping Mr Read and Mr Hindle. Mr Gledhill, for his part, was liaising with Quicksilver UK Ltd ("Quicksilver"), the company engaged to carry out the firework display. The judge said that nobody on the club's behalf seems to have been in overall charge of the whole event.
  13. 2. Findings of fact

    (i) The witnesses of fact
  14. The judge helpfully described the impression the different witnesses made upon him. Mr Bottomley struck him as a straightforward and honest witness although his evidence did not bear crucially on the issues in the case. Mr Crossley was a less satisfactory witness. He had said in his witness statement that he had understood that Mr Gledhill and Mr Heywood had inspected CE's liability insurance in 1995. In examination in chief he withdrew this evidence. He also described a discussion among the members of the committee about the stunt that CE intended to carry out. He was unable to explain why such a discussion was not minuted, and the judge said that he was satisfied that no such discussion took place. The club's other witnesses gave frank evidence although the judge said that, perhaps unsurprisingly, they were concerned about the situation in which the club found itself. Mr Read was plainly upset about what had happened to his friend, Mr Bottomley. He was impressive in explaining his practical experience and his training, and the transcript of his evidence to the environmental services department of the local authority in the course of their investigation into what had occurred that night was clear and straightforward.
  15. (ii) The expert witnesses
  16. The judge also described the effect of the evidence given by the two expert witnesses. Dr Beeley, who is a fire hazard expert, gave evidence for Mr Bottomley. He thought that competence in the field of pyrotechnics should be tested by reference to formal training, practical experience, quality of preparation and understanding of official guidance and regulation. In his view, the materials used by CE in the stunt were capable of causing very severe injury or even death, and that very considerable care was required. He considered that when deciding whether a pyrotechnic stunt performer was competent, an enquiry about insurance was an "elementary precaution".
  17. Mr Wallis, a director of Quicksilver, gave evidence for the club. Although he was not called as an expert, there was no objection when he gave opinion evidence based on his experience in handling fireworks and pyrotechnics. The judge said that Mr Wallis gave a clear impression of competence and experience in his field, which included the handling of both fireworks and pyrotechnics. Mr Wallis said that Quicksilver had public liability insurance, and that he was often asked for evidence that his company had such cover. He added that he now provided the evidence whether he was asked for it or not. He said that he was not required by his insurers to show a level of competency, and that he had never been asked in a proposal for insurance to provide evidence of competency. He described the HSE Guidance "Working Together on Firework Display" as establishing good practice but as assuming the worst may happen.
  18. (iii) The judge's findings of fact
  19. Against this background, the judge made the following findings of fact.
  20. i) Mr Bottomley, who was engaged by Mr Read as an unpaid volunteer for the night, had no training or experience in the use of pyrotechnics.
    ii) The CE stunt involved a potent mixture of low flash-point flammable liquids, gunpowder, helium, paraffin and propane gas. Ignition of the mortars involved the use of petrol and gunpowder in a self-designed metal tube. The pyrotechnic display was potentially very dangerous. The judge accepted Dr Beeley's evidence when he described the ignition of the mortars as being more dangerous than the ignition of fireworks. The fact that the stunt display involved people moving around exploding materials in the dark made the stunt particularly dangerous.
    iii) The club was aware before the event that CE intended to perform a dramatic night-time stunt involving pyrotechnics. This would have been confirmed by the safety equipment and fire-suits worn on the night by Mr Read.
    iv) CE did not possess public liability cover. The judge found that it was highly unlikely that Mr Read ever told anyone at the club that he did. The most that could be said was that members of the committee may have seen a certificate of some sort during the interviews in 1995, and persuaded themselves since then that it was an insurance certificate. The judge was satisfied that no one from the committee made a specific enquiry about insurance and that, if they had, they would have been told that neither CE nor Messrs Read and Hindle possessed public liability insurance cover.
    v) Mr Read was entirely unaware of the Health and Safety Regulations covering the use of fireworks. Although these do not relate directly to the use of pyrotechnics, the judge said that because the use of pyrotechnics in this type of stunt was more dangerous than the use of fireworks, this threw light on Mr Read's competence to carry out this sort of work.
    vi) The safety equipment provided to Mr Bottomley was inadequate. There were no goggles and no gloves. The judge was not persuaded that the fact that CE was unable to afford a firing box for igniting the pyrotechnics was relevant to the cause of the accident; but it seemed to him that Mr Shorrock QC, who appeared for Mr Bottomley, was justified in relying on this to show that CE was operating at minimal cost, with all the risks that this entailed.
    vii) There was no formal contract between the club and CE, and the club had no clear idea of what CE was going to do on 7th November. All that it knew was that CE's display was going to involve pyrotechnics, and that it would end with a van being driven into the bonfire as it was lit. CE was simply left to get on with its display.
    viii) Mr Walters, the secretary of the committee, told the judge that he had no idea that Mr Bottomley was involved in the display, and that, if he had known, he would not have allowed him anywhere near it. The judge was not persuaded that this evidence was directly relevant to the issues he had to decide, but he said that it threw light on the extent of the club's ignorance as to what was going on.
  21. The judge concluded that despite the appearance that it might have given to the club, CE was an amateurish organisation operating in a field which required the highest degree of professionalism if danger was to be avoided.
  22. 3. The judge's conclusions on the law

  23. Mr Bottomley's case against the club on liability was put in three ways:
  24. (i) That it failed to take reasonable care to select a reasonably competent stunt operator;
    (ii) That it failed to take any adequate steps to ascertain whether Messrs Read and Hindle were insured in respect of the proposed display. (This was characterised either as a free-standing duty or as evidence of a failure to select a reasonably competent display operator.)
    (iii) That it was vicariously liable for the negligence of Messrs Read and Hindle because, although they were independent contractors, it had employed them to carry out an extra-hazardous activity on their premises.
  25. So far as the last of these contentions was concerned, the judge analysed the effect of five cases which he listed in his judgment. These were Honeywill & Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191; Salsbury v Woodland [1970] 1 KB 191; Ferguson v Welsh [1987] 1 WLR 1553; Fairchild v Glenhaven Funeral Services Ltd [2001] EWCA Civ 1881, [2002] 1 WLR 1052; and Gwilliam v West Hertfordshire Hospital NHS Trust [2002] EWCA Civ 1041, [2002] 3 WLR 1425.
  26. From these cases the judge drew the following principles:
  27. (i) A person who engages an independent contractor to carry out work is not liable for the negligence of the independent contractor provided that person exercised reasonable care to engage a reasonably competent contractor.
    (ii) An occupier of land does not owe a duty, either under the Occupiers' Liability Act 1957 or at common law, to a servant or agent of an independent contractor who is performing an activity on its land, where the servant or agent is injured as a result of the way in which the work is being carried out.
    (iii) Some activities are regarded by the law as being particularly hazardous or "extra-hazardous". In such cases, a duty is imposed on the employer to see that care is taken; and the employer is vicariously liable for any negligence of the independent contractor."
  28. As to the second proposition, the judge said in this context that although the obiter observations in the speech of Lord Keith at p 1560G-H in Ferguson v Welsh (with whom Lord Brandon and Lord Griffiths agreed) might suggest otherwise, the Court of Appeal in Fairchild v Glenhaven stated clearly that there is no such duty:
  29. "To impose such a liability would in effect require an occupier to owe an employer's duty of care to somebody else's employees; indeed, it could be argued that it would impose on an occupier an even more rigorous duty of care in that it would require him to ensure that the employer was carrying his own duty of care. We can see no principled reason for imposing such a duty." (per Brooke LJ at para 150).
    The judge said that the decision of the Court of Appeal was binding on him.
  30. As to his third proposition, the judge cited a passage from the judgment of Widgery J in Salsbury v Woodland (at p 338B-C) in which he said that extra-hazardous activities were those "activities which are dangerous even if carried out with caution by those skilled in the activity". In Honeywell & Stein Ltd v Larkin Brothers Ltd, Slesser LJ expressed the relevant law (at p 197) in these terms:
  31. "It is clear that the ultimate employer is not responsible for the acts of an independent contractor merely because what is to be done will involve dangers to others if negligently done. The incidence of liability is limited to certain defined classes, and for the purpose of this case it is only necessary to consider that part of this rule of liability which has reference to extra-hazardous acts, that is, acts which, in their very nature, involve in the eyes of the law special dangers to others "
  32. In Salsbury v Woodland Sachs LJ expressed the nature of the duty as follows at p 347G-H:
  33. "There are indeed certain categories of cases in which an occupier is under such a primary duty to others that he in effect warrants the safety of his property against those who are injured by what happens upon it, or alternatively is personally responsible for having any work on it done in a competent manner even if he selected a competent independent contractor."
  34. The judge observed that the categories of "extra-hazardous" activities were likely to change. What might seem very hazardous at one time might seem less hazardous at another. However, in Honeywill v Larkin, Slesser LJ considered the causing of fire and explosion as an "obvious and established" example of an extra-hazardous activity. In these circumstances the judge said that a pyrotechnic display for the entertainment of a crowd in 1997 plainly fell into the category of "extra-hazardous" activities. He said that it was unnecessary in the present case to decide whether the employer's liability in respect of extra-hazardous activities extended to injury to the independent contractor's employees. He held that the rule plainly applied to a person who was not employed by the independent contractor and who came onto the employer's land pursuant to a general invitation. Adopting the words of Sachs LJ in Salsbury v Woodland, the judge said that such a person was subject to the employer's warranty that his property is safe. It followed that he found that the club was vicariously liable for the negligence of Mr Read and Mr Hindle.
  35. After reaching this conclusion, the judge dealt more shortly with the first and second arguments I have mentioned in para 18 above. If the club's duty in the present case was limited to the exercise of reasonable care in the choice of a reasonably competent independent contractor, he found that it failed to exercise such care. The nature of the activity which it knew was going to be carried out (the discharge of pyrotechnics as part of a dramatic entertainment), required particular care in the choice of contractor. Although some thought had been given before CE was engaged for the first time, no proper or sufficient checks had been carried out. Such checks would have revealed that, despite a superficial appearance of competence and experience, CE was inexperienced and largely ignorant of basic safety requirements for the discharge of pyrotechnics. Proper checks would also have revealed that CE had no public liability insurance.
  36. The judge said that he accepted Mr Wallis's evidence as to his own experience of obtaining insurance (see para 15 above). It seemed, however, plain to him, as a matter of common sense, that insurers would wish to reduce the risk of meeting liability claims. They were likely to ask questions that threw light on the extent of the risk that was to be covered and to have conditions in the policy which reduced the risk of claims being made. Furthermore, if an organisation was unable to procure insurance there might be a good reason for this. There might be a history of claims, or it might be that lack of funds made the payment of premium difficult, which in turn might suggest that economies might have been taken in other areas of the business: for example, safety. For this reason the judge said that the existence of insurance cover was of very considerable relevance to CE's experience, reliability and general suitability to carry out the pyrotechnic display. Without seeing a policy which covered pyrotechnics the judge said that it was difficult to draw any further conclusions.
  37. He added that the importance of insurance to the issue of reasonable care in the choice of a reasonably competent independent contractor was referred to by Lord Woolf CJ in Gwilliam v West Hertfordshire Hospital NHS Trust [2002] EWCA Civ 1041 at [15]; [2002] 3 WLR 1425 in the following terms:
  38. "The fact of insurance would go to their competence. If the firm did not hold itself out as being insured this would reflect both on their ability to meet any claim and, in addition, suggest that they were unlikely to be a reputable firm which could properly be entrusted with the responsibility of supplying and operating the 'splat-wall'."
    Waller LJ had described a 'splat wall' as being hazardous but not extra-hazardous. Mr Gledhill had accepted in the present case the point about insurance being a reliable test of competence.
  39. The judge was unable to derive from the judgments of the majority in the Gwilliam case any support for the broader proposition that, where a hazardous activity was carried out on the land of the employer, there was a free-standing duty on the employer to ensure that there was insurance in respect of that activity. It seemed to him that a requirement for insurance for particular activities was a matter for Parliament and not for the courts by the imposition of free-standing obligations. In any event, in his judgment there was no such free-standing duty in the present case.
  40. It was for these reasons that the judge held that the club, as well as Mr Hindle and Mr Read, was liable in negligence to Mr Bottomley. We are not concerned on this appeal with any issues relating to contribution between the three defendants.
  41. 4. The arguments on the appeal

  42. Mr Havers QC, who appeared for the club on this appeal, challenged the judge's conclusions on four main grounds:
  43. (1)(a) That the principles laid down by this court in Honeywill v Larkin did not survive the enactment of the Occupiers' Liability Act 1957;
    (b) That even if those principles still remained good law, an occupier of land did not owe any relevant duty to the agent of an independent contractor who came onto the land for his principal's purposes;
    (2)(a) That the judge should not, on the evidence, have found that the club failed to take reasonable care in its selection of a suitable contractor;
    (b) That the judge should not have held that the club owed Mr Bottomley any relevant duty of care in and about this selection.

    5. Did the Occupiers' Liability Act 1957 supersede Honeywill v Larkin?

  44. I can dispose of the first of these contentions quite quickly. In giving the judgment of this court in Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052 I drew a clear distinction at paras 113-119 between the occupancy duties and the activity duties of an occupier. At paras 120-131 this court held that the Occupiers' Liability Act 1957 was concerned only to replace the old common law rules relating to the occupancy duties of an occupier. That judgment is binding on this court just as much as it was binding on the judge. It follows that the 1957 Act did nothing to weaken the effect of the judgment of this court in Honeywill v Larkin, which was concerned with an occupier's activity duty. That decision is also binding on us.
  45. 6. Was the judge right in his finding that the club failed to take care when selecting CE?

  46. It is convenient to go next to the third of these submissions. This necessarily involves a consideration of some of the evidence which was before the judge. Mr Havers complained that the judge did not give proper weight to the evidence adduced on this point.
  47. So far as Mr Gledhill and Mr Crossley were concerned, Mr Gledhill recalled the presentation folder Mr Read had brought along in 1995, and from what they saw they thought that CE was perfectly bona fide. The stunts they performed for the club in 1995 and 1996 had always been very spectacular and impressive and gave him no cause for concern. He believed they carried out a similar event for the local council in 1997 on nearby parkland a month before the club's bonfire night, and on the basis of his previous experience of their performances they appeared to be competent and professional.
  48. Mr Crossley, who did not impress the judge as a witness, was a friend of Mr Read, whom he knew very well. He said that their previous performances for the club had been very impressive and he had great confidence in them. Their standards as regards planning, safety, equipment and so on had always been perfectly satisfactory. He thought (wrongly) that their liability insurance certificate had been inspected by members of the committee. All in all, he said he was confident that the club was dealing with a professionally run organisation.
  49. For what it is worth, Mr Bottomley told the judge in evidence that he had a lot of respect for Mr Read and that he felt that he was competent.
  50. That was one side of the picture. Mr Shorrock on the other hand reminded us that the judge had accepted that CE gave a superficial appearance of competence and experience. He found as a fact, however, that they were inexperienced and largely ignorant of basic safety requirements for the discharge of pyrotechnics.
  51. The evidence in support of this finding showed that while Mr Gledhill went through the safety plan for the 1997 event with Quicksilver (the organisers of the fireworks display) the club did not ask about CE's safety plans. Mr Gledhill said he did not ask about this, and Mr Crossley did not see any written safety plan. Nor was any documentation relating to safety procedures shown to the local authority's environmental health officer when he came on the scene. Mr Crossley, when cross-examined, was very vague about what was to happen at the 1997 event. Mr Read had told him and Mr Walters that there was going to be an explosion of some petrol on the bottom of the bonfire which was well out of the way of the public. He thought that little flashes were going to happen: he knew nothing about the use of gunpowder.
  52. I have already recorded how Mr Walters said that if he had been aware of Mr Bottomley's involvement he would not have allowed him anywhere near the bonfire or the fireworks. Indeed, he said he should not have been anywhere near that area at that time. If he had known he was to be there, he would have called the whole thing off rather than proceed on that basis.
  53. The evidence also revealed confusion among the club's representatives as to CE's insurance status. Mr Crossley thought that it was the responsibility of the chairman of the club to check this. Mr Gledhill thought that Mr Crossley had checked. He said "I wish I had" when he was asked at the trial whether the club should have asked to see evidence of insurance. As the judge found, there was comparable confusion in the club as to where overall responsibility for the event was located. In addition, the judge saw and heard Mr Read and was able to form an opinion of him by this means.
  54. In my judgment there was ample evidence to justify the judge's conclusion on this issue. There was also ample evidence to justify his conclusion that if the club had taken reasonable care to inquire into CE's credentials it would have found that they were largely unaware of the basic safety requirements needed for an event of this kind, and that they would not have permitted the event to take place if they had. Mr Walters, in particular, was very clear about this.
  55. 7. Did the club owe Mr Bottomley a relevant duty of care?

  56. I turn, finally, to the question whether the club owed Mr Bottomley any relevant duty of care. It was not in issue that the club owed such a duty to all the people who had come along for this fund-raising event, but Mr Havers argued that Mr Bottomley, like Mr Read and Mr Hindle, was in a quite different position because he was properly to be regarded as an agent of the independent contractors who were providing this dangerous entertainment. This was an issue which the judge did not specifically address, although it was argued before him.
  57. It appears from the judge's judgment that some confusion lingers over the effect of the decision of this court in Fairchild v Glenhaven Services Ltd. Of course, there may be many occasions when an occupier may be legally liable in negligence in respect of the activities which he permits or encourages on his land. This liability stems from his "activity duty". He may also be legally liable for the state of his premises, and this liability stems from his "occupancy duty". Fairchild was a rare case in which it was necessary to make a distinction between the two, and this court held that an employee of a very well-known firm of contractors was owed no occupancy duty by the CEGB in the early 1950s as occupiers of the power station in which the claimant contacted mesothelioma during the contract works.
  58. It was unnecessary for the House of Lords in Ferguson v Welsh [1987] 1 WLR 1553 to get themselves involved in this somewhat arcane debate.
  59. In that case the House of Lords was concerned with a situation in which a council had engaged a competent contractor to carry out demolition works on one of their sites. Unknown to the council, the contractor sub-contracted the works to two brothers who carried them out in a highly dangerous manner. One of the brothers employed the plaintiff, Mr Ferguson, to help them, and Mr Ferguson sustained injuries when part of the building collapsed. On those facts the House of Lords, on the assumption that section 2 of the Occupiers' Liability Act applied, held that the council had a watertight defence under section 2(4) of the Act in that it had engaged a demolition contractor whom it had reasonable grounds for regarding as competent, and there was no evidence to support any inference that the council or its responsible officers knew or ought to have known that its contractor was likely to contravene the prohibition on sub-contracting. Lord Keith, however, who gave the leading speech, said at p 1560F-H:
  60. "It may therefore be inferred that an occupier might, in certain circumstances, be liable for something done or omitted to be done on his premises by an independent contractor if he did not take reasonable steps to satisfy himself that the contractor was competent and that the work was being properly done.
    It would not ordinarily be reasonable to expect an occupier of premises having engaged a contractor whom he has reasonable grounds for regarding as competent, to supervise the contractor's activities in order to ensure that he was discharging his duty to his employees to observe a safe system of work. In special circumstances, on the other hand, where the occupier knows or has reason to suspect that the contractor is using an unsafe system of work, it might well be reasonable for the occupier to take steps to see that the system was made safe."
  61. It will be seen that Lord Keith, with whom Lord Brandon and Lord Griffiths agreed, was contemplating that in the special circumstances he postulated the council might be liable in negligence to the employee of an unauthorised sub-contractor if it did not take appropriate care to ensure that potentially dangerous demolition work on its land was performed by reasonably competent, reasonably safe contractors.
  62. Lord Oliver of Aylmerton said at p 1562E-G:
  63. "It is possible to envisage circumstances in which an occupier of premises engaging the services of an independent contractor to carry out work on his premises may, as a result of his state of knowledge and opportunities of supervision, render himself liable to an employee of the contractor who is injured as a result of the defective system of work adopted by the employer. But I incline to think that his liability in such case would be rather that of joint tortfeasor that of an occupier."
  64. Lord Goff of Chieveley, while holding that there was no question of Mr Ferguson's injury arising from a failure by the council in its duty under the Occupiers' Liability Act, said at p 1564C-D:
  65. "I recognise that there may be special circumstances which may render another person liable to the injured man together with his employer, as when they are, for some reason, joint tortfeasors, but such a situation appears to me to be quite different."
  66. On the facts of the present case the club ought to have taken reasonable care in its selection of a suitable "contractor" to conduct this dangerous pyrotechnics display on its land, and it failed to do so. The fact that CE performed their services for no fee makes no difference: the club allowed this dangerous event to take place on its land with no public liability insurance and no written safety plan because it neglected to take the ordinary precautions of which both Mr Beeley and Mr Wallis spoke (see paras 14-15 above). If the club had taken those precautions, either the event would not have taken place at all, or Mr Read and Mr Hindle would have been obliged to show the club their safety plan, which would have required them to pay proper attention to Mr Bottomley's safety. On the first hypothesis, the accident would not have happened; on the second it would probably not have happened.
  67. Occupiers usually escape liability in a case like this because they can show they have taken reasonable care to select competent and safe contractors, and in those cases an injured employee or agent can look no further than his own employer or principal for redress. But as the House of Lords acknowledged in Ferguson v Welsh, there may be circumstances in which the occupier of the land who wishes something dangerous to be done on his land for his benefit may be liable, too, and this in my judgment is one of those cases. If this result is tested by applying the range of tests for identifying a legal duty of care which the House of Lords has developed in the years that followed Ferguson v Welsh, the result is in my judgment the same. The injuries suffered by Mr Bottomley were foreseeable if there was no proper safety plan: there was the requisite proximity between the club and Mr Bottomley, who was lawfully on their premises that evening; and it is fair, just and reasonable to impose liability on the club because it did not do what it ought to have done before it allowed this dangerous event to take place on its land.
  68. In reaching this conclusion I have not found it necessary to consider the Honeywill v Larkin line of authority, because the outcome of this appeal depends on whether on these particular facts the club should properly be held to owe Mr Bottomley a legal duty of care even though he was the agent of Mr Hindle and Mr Read. It is therefore not necessary, even if it was appropriate for us at this level, to consider the criticisms of Honeywill v Larkin made by Professor Atiyah in Vicarious Liability in the Law of Torts (Butterworths, 1967) or by Mason J in the High Court of Australia in Stevens v Brodribb Sawmilling Co Pty Ltd 160 CLR 16, 30. As I have said, Honeywill v Larkin is binding on us, although it may well be that the House of Lords today would prefer to avoid subtle distinctions between what is and is not "extra-hazardous" and would follow Mason J when he said:
  69. "[T]he traditional common law response to the creation of a special danger is not to impose strict liability but to insist on a higher standard of care in the performance of an existing duty."
  70. For these reasons I would dismiss this appeal.
  71. Lord Justice Waller:

  72. I agree that the appeal should be dismissed for the reasons given by Brooke LJ. The question whether there was some free standing duty to ascertain whether Messrs Read and Hindle were insured or viable did not form the subject of any argument on the appeal, and it is not therefore appropriate to explore that issue. I would, however, in the light of Simon J's suggested analysis of Gwilliam v West Hertfordshire NHS Trust [2002] EWCA Civ 1041 merely say that it was not my understanding that the Lord Chief Justice and I were differing in our views that there was a duty in that case to check whether insurance was in place. The difference between us was the routes by which we got to that position.
  73. Lord Justice Clarke

  74. I, too, agree that this appeal should be dismissed for the reasons given by Brooke LJ.
  75. Order: Appeal dismissed; A minute of order was lodged; Permission to appeal refused.
    (Order does not form part of the approved judgment)


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