What are the responsibilities of small business occupiers when engaging independent contractors to carry out construction work in their own premises? Barrister Robert Spicer reports on a recent case.
Occupiers Liability Act 1957: supervision of construction work by contractors
Section 2 of the 1957 Occupiers Liability Act sets out a common duty of care, as follows.
The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which they are invited or permitted by the occupier to be there.
The section also states that an occupier can discharge the above duty if it had reasonably entrusted work to an independent contractor and had taken reasonable steps to satisfy itself that the contractor was competent.
The High Court has recently considered this issue in the case of Moreira v Moran and others.
The facts, in outline, were that Prolakeballs, a company which retrieves, grades and sells golfballs from water features in golf courses, engaged Moran, a self-employed builder, to construct an office on the mezzanine floor of its premises. Moreira was a labourer working for Moran and a Mr Dunne, who was also a self-employed builder. Dunne exercised complete control over the work carried out by Moreira, who, as a matter of law, was his employee. He was provided with work clothes. In April 2018 Moreira was helping Moran and Dunne to offload and stack chipboard onto the floor of the mezzanine. Moran and Dunne had removed a guardrail from the edge of the mezzanine floor. Moreira fell from the unguarded floor onto the concrete floor below while taking the weight of some of the boards. He suffered head injuries and brain damage.
The incident was investigated by the Health and Safety Executive. Moran pleaded guilty to an offence under s.3 of the Health and Safety at Work, etc Act 1974. Dunne pleaded guilty to an offence under Regulation 6 of the Work at Height Regulations 2005.
Moreira clamed compensation from Moran and Dunne in negligence and against Prolakeballs for breach of the Occupiers Liability Acy 1957 and negligence.
A director of Prolakeballs said in evidence that he had never worked in the construction industry. He assumed that Moran was a competent worker because he was recommended and had produced photographs of his previous work. Moran was punctual, professional and polite. The director assumed that Moran had carried out a risk assessment. He did not check the construction work as it was being carried on. He had a degree of control over the place where the work was carried out, but not the method of work, because that would amount to supervision. He had the ability to stop the work if he considered that it was dangerous but he had not known that the guardrail had been removed until after Moran had fallen.
The High Court found that Prolakeballs was not liable under the 1957 Act. The director was entitled to rely on the expertise of Moran and Dunne. The court commented that it might be different where the defendant occupier was a substantial enterprise with a full-time safety officer who caried out a role supervising work being carried out on the premises by independent contractors. In this case, Prolakeballs was a a small company with two full-time employees and some seasonal staff. None of these had construction experience.
Moran and Dunne were found liable in negligence. They were equally to blame for the incident and liability was apportioned 50-50 between them.
An earlier example is the case of Gwilliam v West Hertfordshire Hospitals NHS Trust and others (2002). The facts, in summary, were that W organised a fair in the grounds of a hospital to raise money. The hospital’s fund-raising manager engaged C, an independent contractor, to supply a splat-wall for the fair. The splat-wall involved participants bouncing from a trampoline and sticking to a wall with Velcro. C had public liability insurance. G, the claimant, was injured when using the wall because of negligence on the part of C. C agreed to pay £5000 to G because its insurance had expired. G claimed from the hospital the difference between £5000 and the amount which she would have received if C had been properly insured. At first instance the claim was dismissed. G appealed to the Court of Appeal.
That Court decided the following.
A hospital owed a duty of care to a member of the public visiting a fundraising fair in its grounds to take reasonable steps to ensure that any independent contractor who supplied and set up potentially hazardous equipment at the fair had public liability insurance.
The hospital was the occupier of the grounds and owed a duty under s. of the Occupiers Liability Act 1957.
That duty could be discharged by engaging an appropriate and competent independent contractor. The issue of competence included the fact of insurance. The hospital was under a duty to inquire into the contractor’s insurance position.
In the present case, the fundraising manager had made inquiries. He had no reason to believe that the insurance was not in force.
It would be unreasonable to require the hospital to go further and to check the terms of the insurance policy.
The hospital had fulfilled its duty under the Act of 1957 and the appeal was dismissed.
Employers and business owners need to be aware that they have a duty to engage competent contractors to carry out construction work. The test of reasonableness in this context depends on a number of factors including the size of the business and its knowledge of construction processes. Insurance issues are also relevant. Larger companies are required to have a higher standard.