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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 >> Biffa Waste Services Ltd & Anor v Maschinenfabrik Ernst Hese GmbH & Ors  EWCA Civ 1257 (12 November 2008)
Cite as:  Bus LR 696,  PNLR 12,  BLR 1,  QB 725,  EWCA Civ 1257,  3 WLR 324, 122 Con LR 1
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, TECHNOLOGY AND CONSTRUCTION COURT
MR JUSTICE RAMSEY
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE RIMER
LORD JUSTICE STANLEY BURNTON
| Biffa Waste Services Limited
Biffa Leicester Limited
|- and -
|Maschinenfabrik Ernst Hese GMBH
|Outokumpu Wenmac AB
|Vanguard Industrial Ltd
t/a Pickfords Vanguard
|Hese Umwelt GmBH
Mr Ben Patten (instructed by Herbert Smith LLP) for the Respondents
Hearing dates : 29, 30 October 2008
Crown Copyright ©
The facts in summary
The Welding and Grinding Works
"4 Risk Assessment for works inside of the ball mill
4.1 Grinding and Disc Cutting
Hazard: Fire starting as a result of grinding operations. Flying debris and sparks. Electric shock.
At risk: All site personnel and visitors
Action: The work area will be kept free from flammable or combustible materials including oil and greases. An adequate number of appropriate fire extinguishers will be sited adjacent to all hot work areas. Fire extinguishers will be checked prior to the commencement of grinding operations, to ensure they are full and the seal is intact. The ball mill will be vented by the exhaust air system. Only trained competent personnel will change grinding discs. The working place will be monitored 1 hour after finish after hot works. Operators will be provided and will wear Personnel Protective Equipment i.e., protection and dust mask, protective gloves etc.
Hazard: Fire starting as a result of welding. Flying sparks. Electric shock. Smoke.
At risk: All site personnel and visitors
Action: The work areas will be kept free from flammable or combustible materials including oils and greases. An adequate number of appropriate fire extinguishers/water hoses will be sited adjacent to all hot work areas. The underground of the ball mill will be kept wet. The ball mill will be vented by the exhaust air system. The working place will be monitored 1 hour after finish of hot works. Operators will be provided and will wear Personnel Protective Equipment i.e. protection and dust mask, protective gloves etc."
"This is to confirm that we are prepared to do the rebuilding of the mill discharge grate according to the discussions at Gelsenkirchen April 27th and information exchanged up to now.
Pickford Vanguard has confirmed possibility to manufacture lifter plates and has also confirmed discussions with Hese and is prepared to do the machining of the grates during coming weekends. Kristian is prepared to go to Leicester and additional men are coming from Sweden. If even more men are necessary we will use the men Pickford has prepared for this job."
"We have noticed what has happened with the grate plate on the grate in the mill in Leicester.
A set of plates made in Hardox will be manufactured urgently most probably by Pickford in England. Attached drawing is sent to Pickfords to get their opinion and possibilities of an urgent manufacturing.
We are talking to Swedish manufacturer in case Pickford will have problem."
"Fixing bolt of the grate: We are afraid that the present solution is not sufficient. We think that the wearing of the fixing bolts caused by the balls during running the mill is that high, that the surface of the bolts will become worn very soon. Due to that the screw connection will loosen and will cause much more trouble.
From our point of view there are some possibilities to solve this problem. E.g. to create a hard facing on top of the bolts, or to countersink the bolts in some way."
"But the most serious thing in connection with the tool container are the screws of the grate which come loose in very short time. It can not be acceptable that our staff has to retighten the screws after every day (and for this work they are using the tools which are in the container). So you have to find a solution for this big, time-consuming problem!"
"Screws for fastening the grate come loose constantly.
A new bolt protection for example in the form of a "square washer" (executed as a "hat") will be manufactured and welded on top of the bolt from the inside of the mill. Attention, suitable weld rods and welding machines (400V) are required. This washers will be made out of Hardox. Outokumpu will probably order the washers and the welding from Pickfords Vanguard and will send in addition to that a supervisor to Bursom site. At the same time the nuts will be changed into loc-nuts.
New Grate Segments
The five new grates segments are on the way to Leicester and will be changed against the cracked ones at the same time.
All works to be carried out in agreement with Manni Brix."
"We need before end of this week 84 plates/washers according to item 3 on drawing 11805314 Rev 2. Design of plates can be discussed.
Please advise soonest your possibility to provide help."
"As you have been informed already by phone, the repair welding of the fastening screws at the inside of the mill shows such great wearing already after one production day, that we are afraid that more screws will become loose and cause big damages at the bearing of the mill. Manni Brix [of HU] said, that from his point of view he has to stop the mill latest on Friday because of the damage risk! You see, the situation is very serious and needs to be solved at once! It is unconditionally necessary to realise the repair of this defect as soon as possible, latest of the complete grate without any more disturbances. For the repair it is also necessary that you send one or two men for supervising and performing the necessary tasks."
"Again some more screws became loose and it looks like there has been no repair during the last weekend, every welding seam is worn out again! Now at that situation it is urgently unconditionally necessary to have a responsible person from your company at site this weekend to decide what to do and to supervise the actions! Our men at site can't continue their work, because they are busy with the mill."
"and again the plant came to some standstills due to loose screws at the grate. Yesterday three screws were loose, this morning two and later again three. You see, we have to interrupt the production regularly just to retighten the screws. I do hope that after this "repair" weekend this problem is solved."
"To manufacture 84 washer plates from Hardox steel 110 mm square complete with 60 mm holes our cost is £12.00 each giving total of £1008.00
To provide 2x welding sets (hired) complete with 100 metres cabling with 6x boxes welding rods including delivery and collection is
|Welders £240.00 each set||Total £480.00|
|Cabling £12.00 each set||Total £24.00|
|Rods £72.00 per box (manganese cobalt all positional)||Total £432.00|
|Delivery and collection||Total £300.00|
To provide 2x welders over weekend Sat 26th+Sun 27th our cost £960.00."
"If for any reason during the course of undertaking this work activity, they cannot adhere to the contents of either the risk assessment or the method statement, they have been instructed to contact their Foreman or Site Supervisor, who will then stop the work activity. The Foreman or Site Supervisor will discuss the problem with the Contracts Engineer of the relevant Manager at the Branch then, if necessary, will produce alternative documentation prior to work re-commencing."
The document identified the three other Pickfords employees engaged in the works, namely Gary Deehan, Neil Deehan and Mr Ibbotson, and Mr Askwith signed a confirmation that he had fully briefed "all relevant parties involved in, or affected by, this work activity on the contents of the method statement and the attached risk assessment". Two of those four must have been provided by an agreement between HU and Pickfords, and HU paid for them. OT paid only the sum agreed by them in the exchange between them and Pickfords on 24 June 2004.
The cause of the fire
"84. I consider that the failures of the various personnel which amounted to a lack of skill and care and which caused or materially contributed to the fire were as follows:
(1) The method statement prepared by Mr Groeble of HU and used by Mr Brix of HU was inadequate in identifying the risk of fire on the trommel side of the grating. Had the risk been properly identified adequate precautions could have been taken to avoid the fire.
(2) The Hot Work Permit used by Mr Brix of HU did not properly identify the hazard posed by the presence of combustible material on the trommel side of the grating. Had it done so then proper precautions could have been taken to avoid the fire.
(3) Mr Askwith of Pickfords failed to ensure that a continuous watch was kept in the period of either 15 minutes or 1 hour after the hot work had ceased in the Ball Mill. Either period would have ensured that the smouldering fire was discovered and readily extinguished.
(4) Mr Askwith and Mr Gary Deehan of Pickfords should have been aware of the risks of ignition of combustible material on the trommel side of the grating. Had they properly dealt with or mitigated those risks by preventing sparks from reaching the material, the fire would not have occurred.
(5) Mr Askwith and Mr Gary Deehan of Pickfords failed to ensure that the welding area was properly wetted down after welding. There is very little evidence of any wetting down between the period of 9:30am and 10:00am. Had the area been properly wetted the fire would not have occurred.
85. I therefore conclude that the fire was caused or materially contributed to by the negligence of personnel of HU and Pickfords, as set out above."
Vicarious liability for a borrowed employee
"242. From those authorities, I derive the following principles relevant to this case:
(1) The focus of the enquiry is control over the negligent act. The relevant enquiry is to ascertain which party has authority to control the manner in which the employee carries out the work which was performed negligently.
(2) It is control over the manner in which the employee carries out the work not control over what work the employee carries out. Liability attaches to the party who was entitled to give orders as to how the work should or should not be done.
(3) An employee may be given delegated authority as to the manner in which he carries out the work and in such a case it is the party which gave that authority which will be liable if the work is carried out negligently."
"248. I have come to the conclusion that in this case the Pickfords employees were not acting as independent contractors but were acting in a role which imposed vicarious liability on OT for their negligence.
249. The work which was being carried out on the weekend of 26/27 June 2004 had been discussed between HU and OT at the meeting at Gelsenkirchen on 21 June 2004. The work was to be carried out by Pickfords but OT was to provide supervision. On 23 June 2004 Mr Groeble requested OT to provide one or two men for supervising and performing the necessary work. By 24 June 2004 Mr Groeble said that it was necessary to have a responsible person to decide what to do and supervise the actions. This clearly shows that OT were to supervise the work being carried out on the weekend of 26/27 June 2004.
250. OT organised the work which they had designed and which they were carrying out under their contract with HU by engaging Millteam and Pickfords.
251. The arrangement with Millteam was that they would provide labour to work for OT in carrying out the installation and maintenance of milling plant. Millteam were to be paid at hourly rates for any labour they supplied. There was also a provision for Millteam to provide equipment but this had to be the subject of a separate agreement. The personnel supplied under this arrangement for the weekend of 26/27 June 2004 both describe themselves as steel erectors.
252. The agreement with Pickfords similarly was an agreement for Pickfords to provide welders, provide welding equipment and manufacture the "top hat" washers.
253. In setting up those arrangements and sending Mr Isaksson and Mr Ek from Millteam, Mr Nygren was evidently wanting Millteam to be involved in carrying out the operations on 26/27 June 2004. The evidence indicates that there was uncertainty as to what Millteam went to do. Mr Nygren says in his witness statement that Millteam were to go fit the washer plates, essentially with supervision being provided by Mr Brix. In his evidence he cast a wider responsibility on Millteam in terms of supervision and instruction of Pickfords. Mr Isaksson says he was asked to see if he could come up with any ideas for curing the problems of breaking bolts and find a way of protecting them. Mr Ek says the instructions were not very clear but were to help out with some problems which had been found.
254. It is highly unlikely that Mr Nygren would engage two Millteam steel erectors to go to fit the washer plates. Given what was said at the meeting in Gelsenkirchen and in the subsequent e-mails from Mr Groeble, the much more likely explanation was that which Mr Nygren gave in his oral evidence that Mr Isaksson and Mr Ek were being sent on site to supervise the work on behalf of OT. As I have found, in carrying out that supervision they were involved in matters of health and safety, in the supply of tools from the cabin and in checking fire precautions, all of which is entirely consistent with their role as supervisors, with the entitlement to instruct Pickfords both how to do the work and as to what work had to be done.
255. This indicates that OT through Millteam had the right to control Pickfords' operations. It demonstrates that OT was entitled to control the manner in which Pickfords carried out their work, particularly in terms of taking precautions to avoid fire.
256. Reliance is placed by OT on the role of Mr Brix of HU. However, the role of HU in the process has to be seen in its proper contractual context on this construction project. HU were effectively the main contractor and therefore had overall responsibility for all work which was carried out on site. In that role they had responsibilities, for example, in issuing hot work permits and preventing poor performance by sub-contractors. In carrying out such control in relation to Pickfords in respect of the work being carried out on 26/27 June 2004, they could not impose control over Pickfords in relation to the work being carried out unless OT was entitled to exercise that control over Pickfords. I therefore consider that control exercised by HU on 26/27 June 2004 if anything, reinforces the fact that Pickfords were to be controlled in terms of the health and safety aspects by OT. The fact that OT permitted HU to exercise the relevant control over Pickfords does not therefore show that OT did not have the entitlement to exercise that control.
257. As a result, I do not find that the matters relied upon by OT lead to the conclusion for which they contend. In particular:
(1) Pickfords would need directions to know what to do and how to do it. The only party who could give those directions would be OT. OT chose to engage Millteam and to use HU site staff to carry out that role on their behalf. It was however OT who was entitled to exercise that control and the fact that it was not done adequately does not reduce the entitlement to control.
(2) The fact that OT did not have a presence on site does not answer the question of who was entitled to control the operations. The fact OT did not do so does not affect the existence of an entitlement to do so.
(3) The involvement of HU as a main contractor in dealing with matters of safety does not detract from the fact that it was OT who was entitled to control Pickfords. Indeed it shows that Pickfords was not free to perform the work in their own way and reinforces the fact that OT was entitled to control Pickford' operations.
(4) The fact that Pickfords supplied specialist welders and equipment and that the welders had a degree of autonomy as to how they made the welds or ground the bolt heads does not affect the question of OT's control. The relevant authority given to Pickfords' personnel who were provided to OT on a labour only basis, came from OT.
(5) The fact that Pickfords personnel carried out the safety precautions which proved inadequate does not show who was entitled to control the operations.
258. Accordingly, I find that OT was vicariously liable for the negligence of the Pickfords' personnel which caused or contributed to the fire."
The authorities on vicarious liability for borrowed employees
"The appellant Board owned a number of mobile cranes, each driven by a skilled workman engaged and paid by them, for the purpose of letting out the apparatus so driven to applicants who had undertaken to load or unload cargo at Liverpool Docks. This was a regular branch of their business. The conditions on which these cranes were supplied were printed and headed: "Regulations and rates applying to the fixed and mobile cranes on land, available for general use on the dock estate at Liverpool and Birkenhead." They were incorporated in the contract of hiring. By reg. 6: "Applicants for the use of cranes must provide all necessary slings, chains, and labour for preparing the article to be lifted, and for unshackling the same. They must also take all risks in connexion with the matter. The board do not provide any labour in connexion with the cranes except the services of the crane driver for power cranes. The drivers so provided shall be the servants of the applicants." As regarded "portable cranes," the stipulated rates varied according as they were provided "with board's driver" or "without board's driver." The respondent company were master stevedores who had hired from the appellant board the use of a portable travelling crane, together with its driver. … The Board hired out a mobile crane, along with its operator, to a firm of stevedores. The crane operator injured a third party whilst the crane was on hire to the stevedores."
"The stevedores were entitled to tell him where to go, what parcels to lift and where to take them, that is to say, they could direct him as to what they wanted him to do; but they had no authority to tell him how he was to handle the crane in doing his work. In driving the crane, which was the appellant board's property confided to his charge, he was acting as the servant of the appellant board, not as the servant of the stevedores. It was not in consequence of any order of the stevedores that he negligently ran down the plaintiff; it was in consequence of his negligence in driving the crane, that is to say, in performing the work which he was employed by the appellant board to do."
Lord Simon said at 10:
"Mr. Pritchard (counsel for the Board) placed much reliance upon the language of reg. 6. But when the plaintiff has proved injury caused by the negligence of Newall, and the question arises who is answerable as "superior" for such negligence, this question is not to be determined by any agreement between the owner and the hirer of the crane, but depends on all the circumstances of the case. Even if there were an agreement between the appellant board and the respondent company that in the event of the appellant board being held liable for negligent driving of the crane while it is under hire to the latter, the latter will indemnify the appellant board, this would not in the least affect the right of the plaintiff to recover damages from the appellant board as long as the appellant board is properly to be regarded as the crane driver's employer. It is not disputed that the burden of proof rests on the general or permanent employer - in this case the appellant board - to shift the prima facie responsibility for the negligence of servants engaged and paid by such employer so that this burden in a particular case may come to rest on the hirer who for the time being has the advantage of the service rendered. And, in my opinion, this burden is a heavy one and can only be discharged in quite exceptional circumstances."
And at 12:
"I would prefer to make the test turn on where the authority lies to direct, or to delegate to, the workman, the manner in which the vehicle is driven. … In the ordinary case the general employers exercise this authority by delegating to their workman discretion in method of driving."
Lord Porter said at 17:
"Many factors have a bearing on the result. Who is paymaster, who can dismiss, how long the alternative service lasts, what machinery is employed, have all to be kept in mind. The expressions used in any individual case must always be considered in regard to the subject matter under discussion but amongst the many tests suggested I think that the most satisfactory, by which to ascertain who is the employer at any particular time, is to ask who is entitled to tell the employee the way in which he is to do the work upon which he is engaged. If someone other than his general employer is authorized to do this he will, as a rule, be the person liable for the employee's negligence. But it is not enough that the task to be performed should be under his control, he must also control the method of performing it."
Lord Uthwatt said at 23:
"The proper test is whether or not the hirer had authority to control the manner of execution of the act in question."
"To my mind, it runs counter to a fundamental principle that a man's contractual position, particularly in such a vital matter as the identity of the master whom he is to serve, shall be crucially affected by an agreement between two other parties, the terms of which are never communicated to him."
"Much of the difficulty which surrounds this subject arises out of the nineteenth century conception that a servant of a general employer may be transferred to a temporary employer so as to become for the time being the servant of the temporary employer. That conception is a very useful device to put liability on the shoulders of the one who should properly bear it, but it does not affect the contract of service itself. No contract of service can be transferred from one employer to another without the servant's consent: and this consent is not to be raised by operation of law but only by the real consent in fact of the man, express or implied: see Nokes v. Doncaster Amalgamated Collieries Ld. In none of the transfer cases which have been cited to us had the consent of the man been sought or obtained. The general employer has simply told him to go and do some particular work for the temporary employer and he has gone. The supposed transfer, when it takes place, is nothing more than a device - a very convenient and just device, mark you - to put liability on to the temporary employer; and even this device has in recent years been very much restricted in its operation. It only applies when the servant is transferred so completely that the temporary employer has the right to dictate, not only what the servant is to do, but also how he is to do it: see Mersey Docks and Harbour Board v. Coggins &; Griffith (Liverpool) Ld. Such a transfer rarely takes place, if ever, when a man is lent with a machine, such as a crane or a lorry: nor when a skilled man is lent so as to exercise his skill for the temporary employer. In such case the parties do not contemplate that the temporary employer shall tell the man how to manipulate his machine or to exercise his skill. But a transfer does sometimes take place in the case when an unskilled man is lent to help with labouring work: see Garrard v. A. E. Southey & Co.  2 QB 174. The temporary employer can then no doubt tell the labourer how he is to do the job. The labourer becomes so much part of the organization to which he is seconded that the temporary employer is responsible for him and to him."
"16. In my view, Denham's case, applying the principles in the Mersey Docks case, relevantly states and illustrates those elements of principles most relevant to the present appeal. To look for a transfer of a contract of employment is, in a case such as this, no more than a distracting device; in the present case a misleading one. Darren Strang's employment was not transferred. The inquiry should concentrate on the relevant negligent act and then ask whose responsibility it was to prevent it. Who was entitled, and perhaps theoretically obliged, to give orders as to how the work should or should not be done? In my view, 'entire and absolute control' is not, at least since the Mersey Docks case, a necessary precondition of vicarious liability."
"79. However, I am a little sceptical that the doctrine of dual vicarious liability is to be wholly equated with the question of control. I can see that, where the assumption is that liability has to fall wholly and solely on the one side or the other, then a test of sole right of control has force to it. Even the Mersey Docks case, however, does not make the control test wholly determinative. Once, however, a doctrine of dual responsibility becomes possible, I am less clear that either the existence of sole right of control or the existence of something less than entire and absolute control necessarily either excludes or respectively invokes the doctrine. Even in the establishment of a formal employer/employee relationship, the right of control has not retained the critical significance it once did. I would prefer to say that I anticipate that subsequent cases may, in various factual circumstances, refine the circumstances in which dual vicarious liability may be imposed. I would hazard, however, the view that what one is looking for is a situation where the employee in question, at any rate for relevant purposes, is so much a part of the work, business or organisation of both employers that it is just to make both employers answer for his negligence. What has to be recalled is that the vicarious liability in question is one which involves no fault on the part of the employer. It is a doctrine designed for the sake of the claimant imposing a liability incurred without fault because the employer is treated by the law as picking up the burden of an organisational or business relationship which he has undertaken for his own benefit.
80. One is looking therefore for practical and structural considerations. Is the employee, in context, still recognisable as the employee of his general employer and, in addition, to be treated as though he was the employee of the temporary employer as well? Thus in the Mersey Docks case situation, it is tempting to think that liability will not be shared: the employee is used, for a limited time, in his general employer's own sphere of operations, operating his general employer's crane, exercising his own discretion as a crane driver. Even if the right of control were to some extent shared, as in practice it is almost bound to be, one would hesitate to say that it is a case for dual vicarious liability. One could contrast the situation where the employee is contracted out labour: he is selected and possibly trained by his general employer, hired out by that employer as an integral part of his business, but employed at the temporary employer's site or his customer's site, using the temporary employer's equipment, and subject to the temporary employer's directions. In such a situation, responsibility is likely to be shared. A third situation, where an employee is seconded for a substantial period of time to the temporary employer, to perform a role embedded in that employer's organisation, is likely to result in the sole responsibility of that employer."
"In my judgment having regard both to the contractual documentation, the regulatory documentation and the written and oral evidence of Mrs O'Brien, Mr Pullman and Mr Beckford as to what happened in practice, it is plain that Luminar sought to have, and did exercise detailed control not only over what the door stewards were to do in supplying services but how they were to do it. It is plain that the manager of the club was the person to whom door staff looked and to whose wishes they deferred both in terms of where they should be stationed but also on detailed matters of who should be admitted and what should be done about customers who were proving troublesome. They acknowledged as much in their job description for which they had to sign and in terms of the code of conduct which made it clear that it was the Luminar code that they were operating. In practice, the only freedom which ASE had, and the only role which the head doorman had independent of the detailed control of the club management, was to nominate who should work on a particular night, and who should replace somebody who did not turn up. Where so required, however, ASE had no option but to accept Luminar's decision that a particular steward should not work at the club either on a particular occasion or permanently and comply with it instantly and without any reason being given. Mr Pullman saw everybody working at the club as operating as a team. Mr Beckford acknowledged that, from the point of view of the public, the door staff were equally part of the Luminar staff as were the bar staff. Mrs O'Brien regarded them all as a team regardless of whether they were door staff supplied by ASE or bar staff supplied by Luminar. The arrangements between Luminar and ASE concerning who was to be the employer of stewards and who should bear, and insure against, the risk of liability to third parties by reason of the conduct of the door stewards, cannot override the clear factual position which vested control over how the door stewards did their job in Luminar club management.
It therefore follows, in my judgment, that the control that Luminar had over ASE's employees was such as to make them temporary deemed employees of Luminar for the purposes of vicarious liability."
Vicarious liability for borrowed employees: discussion
Liability for ultra hazardous acts
"267. In my judgment, the principle relevant to this case, to be derived from Honeywill is that a person who employs an independent contractor will be liable for the negligence of that independent contractor where the independent contractor is engaged to carry out "extra-hazardous or dangerous operations". Such operations are those which, in their very nature, involve in the eyes of the law special danger to others and include removing support from adjoining houses, doing dangerous work on the highway, or creating fire or explosion. Such operations are inherently dangerous although if carefully and skilfully performed they will cause no harm. The employer is under a non-delegable duty to see that all reasonable precautions are observed, otherwise he will be responsible for the consequences. The employer is liable even if he has stipulated that all reasonable precautions should be taken by the independent contractor, together with an indemnity."
"268. OT submits that the principle should not be applied in this case for the following reasons:
(1) The concept of extra-hazardous acts and the decision in Honeywill has been severely criticised and it is submitted that the case should be limited to its particular facts, which are very different from this case. OT relies on the decisions cited by Professor Atiyah in Vicarious Liability in the Law of Torts at p.372, Bottomley v. Todmorden Cricket Club  EWCA Civ 1575 and Stevens v. Broadribb Sawmilling Co Pty Ltd 160 CLR 16.
(2) In Honeywill the tortfeasor was not carrying out work for the benefit of the building owner but was carrying out work for Honeywill which was not of any benefit to the building owner. Here, Pickfords were carrying out work for the benefit of the Claimant building owners.
(3) In the Scottish case of MTM Construction Limited v. William Reid Engineering Limited  SLT 211 the court found that an intermediate contractor was not liable in tort for the acts of an independent contractor. Where there was a contractual chain, it was held that it was only the ultimate employer and the party who carried out the works who had liability for the negligent performance of works which are extra-hazardous and inherently dangerous resulting in loss to a third party.
(4) Welding on a building site is not an ultra-hazardous activity.
(5) That there cannot be strict liability on OT where the Claimants had run the risk of damage from the dangerous thing or where the works were carried out for the benefit of the Claimants. In such circumstances, it must be shown that OT were negligent."
"272. Clearly, the decision in Honeywill is binding on me. However, I observe that the concept of what is a "hazardous" or "extra-hazardous" activity is a difficult one to apply to cases which come before the Technology and Construction Court. Many activities in the construction industry are potentially hazardous. The classification of hazards and the use of risk assessments are more consistent with an approach where, as Mason J said (in Stevens v. Broadribb), the creation of greater danger imposes a higher duty of care than an uncertain divide between levels of hazard which impose liability on the person who employs competent independent contractors and those which do not."
"284. The carrying out of the Welding and Grinding Works with the consequent sparks and hot metal in a location where there is combustible material is, in my judgment, an inherently dangerous operation.
286. In this case, the work being carried out by Pickfords was extra-hazardous. The Welding and Grinding Works were being carried out within the Ball Mill which had been operating and where there was inevitably combustible waste. The sparks and welding operations were inherently dangerous in such circumstances. I consider that OT's duties in tort in relation to such operations were non-delegable and that OT is therefore liable for the acts of Pickfords even if (contrary to the finding above) Pickfords would otherwise be independent contractors."
The principle in Honeywill
"To take the photograph in the cinema with a flashlight was, on the evidence stated above, a dangerous operation in its intrinsic nature, involving the creation of fire and explosion on another person's premises, that is in the cinema, the property of the cinema company. The appellants, in procuring this work to be performed by their contractors, the respondents, assumed an obligation to the cinema company which was, as we think, absolute, but which was at least an obligation to use reasonable precautions, to see that no damage resulted to the cinema company from these dangerous operations: that obligation they could not delegate by employing the respondents as independent contractors, but they were liable in this regard for the respondents' acts. For the damage actually caused the appellants were accordingly liable in law to the cinema company, and are entitled to claim and recover from the respondents damages for their breach of contract, or negligence in performing their contract to take the photographs.
The learned judge has found for the respondents because he has held (founding himself on the words of Lord Watson in Dalton v. Angus (1881) 6 App. Cas. 740, 831 that the work to be done by the respondents for the appellants "was not necessarily attended with risk. It was work which, as a general rule, would seem to be of quite a harmless nature." But, with respect, he is ignoring the special rules which apply to extra-hazardous or dangerous operations. Even of these it may be predicated that if carefully and skilfully performed, no harm will follow: as instances of such operations may be given those of removing support from adjoining houses, doing dangerous work on the highway, or creating fire or explosion: hence it may be said, in one sense, that such operations are not necessarily attended with risk. But the rule of liability for independent contractors' acts attaches to these operations, because they are inherently dangerous, and hence are done at the principal employer's peril."
"Held, that the Plaintiffs had acquired a right of support for their factory by the twenty years' enjoyment, and could sue the owners of the adjoining house and the contractor for the injury."
"There was here an interference with a public highway, which would have been unlawful but for the fact that it was authorized by the proper authority. The telephone company so authorized to interfere with a public highway are, in my opinion, bound, whether they do the work themselves or by a contractor, to take care that the public lawfully using the highway are protected against any act of negligence by a person acting for them in the execution of the works."
The authority to which he referred was the statutory duty of the local authority: counsel for the plaintiff had cited Hardaker v Idle District Council  1 QB 335 for the proposition that a statutory duty of the kind engaged was non-delegable. Thus it was a case of a statutory non-delegable duty, as to which see Clerk & Lindsell on Torts, 19th edition, at paragraph 6-54. Smith LJ, in his judgment cited by Slesser LJ, similarly restricted his judgment to activities on the highway, and his judgment is so treated in Charlesworth & Percy on Negligence, 11th edition, at paragraph 2-377. In Salsbury v Woodland  1 QB 325 Widgery LJ said, at 338:
"The second class of case (of vicarious liability for the acts of an independent contractor), which is relevant for consideration, concerns dangers created in a highway. There are a number of cases on this branch of the law, a good example of which is Holliday v. National Telephone Co.  2 Q.B. 392. These, on analysis, will all be found to be cases where work was being done in a highway and was work of a character which would have been a nuisance unless authorised by statute. It will be found in all these cases that the statutory powers under which the employer commissioned the work were statutory powers which left upon the employer a duty to see that due care was taken in the carrying out of the work, for the protection of those who passed on the highway. In accordance with principle, an employer subject to such a direct and personal duty cannot excuse himself, if things go wrong, merely because the direct cause of the injury was the act of the independent contractor."
See to similar effect Harman LJ at 345 and Sachs LJ at 348. In our judgment, therefore, Holliday v. National Telephone Co. was not authority for the extension of liability for the acts of an independent contractor made by the Court of Appeal in Honeywill.
"In truth it is a matter of degree. Every activity in which man engages is fraught with some possible element of danger to others. Experience shows that even from acts apparently innocuous injury to others may result. The more dangerous the act the greater is the care that must be taken in performing it. This relates itself to the principle in the modern law of torts that liability exists only for consequences which a reasonable man would have foreseen. One who engages in obviously dangerous operations must be taken to know that if he does not take special precautions injury to others may very well result. In my opinion it would be impracticable to frame a legal classification of things as things dangerous and things not dangerous, attaching absolute liability in the case of the former but not in the case of the latter. In a progressive world things which at one time were reckoned highly dangerous come to be regarded as reasonably safe. The first experimental flights of aviators were certainly dangerous but we are now assured that travel by air is little if at all more dangerous than a railway journey."
"Taken literally, it would mean that the fare who hired a taxicab to drive him down the Strand would be responsible for negligence of the driver en route because the negligence would be negligence in the very thing which the contractor had been employed to do."
The application of the principle in this case