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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Bottomley v Todmorden Cricket Club  EWCA Civ 1575 (07 November 2003)
Cite as:  EWCA Civ 1575
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
London, WC2A 2LL
B e f o r e :
LORD JUSTICE WALLER
LORD JUSTICE CLARKE
| MICHAEL JOHN BOTTOMLEY
|- and –
|TODMORDEN CRICKET CLUB
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)
Michael Shorrock QC & Richard Pearce (instructed by The Thrasher Walker Partnership) for the Respondent
Crown Copyright ©
|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
2. Findings of fact
(i) The witnesses of fact
(ii) The expert witnesses
(iii) The judge's findings of fact
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.
3. The judge's conclusions on the law
(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.
(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."
"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.
"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 …"
"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."
"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.
4. The arguments on the appeal
(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?
6. Was the judge right in his finding that the club failed to take care when selecting CE?
7. Did the club owe Mr Bottomley a relevant duty of care?
"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."
"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."
"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."
"[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."
Lord Justice Waller:
Lord Justice Clarke