We have from
time to time in these columns commented upon reported cases in which the
immediate cause of the plaintiff’s loss or damage is not anything which the
defendant himself has done, but rather something done on his behalf by an
independent contractor. In D & F Estates Ltd v Church
Commissioners for England [1988] 2 EGLR 263, for instance, the plaintiffs’
case against Wates (the main contractors responsible for building the block of
flats in question) was based on the negligence of a firm of plastering
subcontractors who were described as ‘not worth suing’. In the more recent but
equally notorious case of Murphy v Brentwood DC [1990] 2 All ER
908, the Court of Appeal (though not the House of Lords) faced the problem of a
local authority’s decision to approve the design of house foundations, which
was based on advice received from a firm of consulting engineers. Such examples
have prompted a correspondent to inquire generally as to the extent to which
the negligence of an independent contractor is a source of legal liability for
his client (see our issue of September 29 at p 7), and it is to this question
that we now turn.
Sadly, it
must be said that the law in this area is in something of a mess. The solutions
reached by the courts in such cases have ranged from making the client strictly
liable for his delegate’s negligence (which was the Court of Appeal’s ruling in
Murphy) to denying that the client would even be liable for his own
negligence if he carelessly failed to check the work done (as in D & F Estates).
However, when it comes to the principles on which such distinctions are
drawn, these appear to be conspicuous only by their absence.
The first
point to make is that there is no question of vicarious liability here
(in the sense in which an employer is vicariously liable for torts committed by
his employee). The theoretical basis on which a client is held responsible for
his independent contractor is that the client owes a personal duty of
some kind to the plaintiff and that, if he chooses to delegate the performance
of this duty, he will do so at his own risk. The 64-dollar question is thus:
‘Which duties are personal and non-delegable in this sense?’, but it is
unfortunately at this point that legal theory ceases to offer anything helpful!
Notwithstanding
the lack of coherent principle, however, some kind of picture can be glimpsed
by examining the cases in which liability has been imposed. Foremost among
these are situations where the ‘client’ (usually in practice a local authority)
is under a statutory duty, such as the duty to reinstate a highway after
excavating in it. Work of this kind is frequently left to contractors, for
whose negligence the authority will clearly be held responsible. Similarly (and
perhaps by extension of the first type of case), it seems to be presumed that,
where work is done under a statutory power, any legal duty to do it
carefully is a non-delegable one. None the less, it would be dangerous to
assume too much. It has, for example, been ruled that a police power to remove
illegally parked vehicles does not render the police liable for the negligence
of the garage which they instructed to do the job — the duty of the police in
this instance was held limited to using reasonable care in selecting the
garage.
Despite such
quirks, the presumption of responsibility in statutory cases is by and large
applied. By contrast, when one turns to consider non-delegable duties at
common law, it is difficult to do any more than give a list of the
situations in which these have been held to exist. Even so, since several of
these areas of liability specifically concern land and its use, this may in
itself be a worthwhile exercise.
Common law
duties now established as non-delegable (or, more accurately, delegable to an
independent contractor only at the client’s risk) include the duty not to
withdraw support from neighbouring property; the duty not to cause damage to
highway users by work done on the highway; the duty of a contractual bailee to
safeguard his bailor’s goods; and the duty of an employer to look after the
safety of his employees. Furthermore, it should be appreciated that all torts
of strict liability (such as the rule in Rylands v Fletcher
(1868) LR 3 HL 330 and the provisions of the Animals Act 1971) in effect impose
non-delegable duties — after all, the escape of water in Rylands v Fletcher
itself was due to the negligence of the independent contractors who constructed
the reservoir, and yet the client was held liable.
rent?
There are a
variety of circumstances in which a court may have to decide whether or not
payments for the use and occupation of premises are rent properly so-called. It
should be stressed that, contrary to popular belief (made manifest in the
peppercorn rent), it is not, as a matter of law, essential that rent be payable
in order for a tenancy to exist: See Ashburn Anstalt v Arnold
(1987) 284 EG 1375. That said, the absence of any monetary payment may indicate
that the parties did not intend their arrangement to have any legal force; for
example, where a friend or relative allows free accommodation, the arrangement
may well be regarded as a licence. Even where monetary payments are made it may
be necessary for the court to decide whether these sums are rent, a
contribution to household expenses or a contribution towards the purchase of
the property. These problems can well arise in the context of a group of
friends living together in a house, which one of them is purchasing. Finally, a
court may need to examine the substance of an agreement to decide whether
payments which are described as one thing are, in reality, another. It is by no
means uncommon for an occupier to pay what his agreement calls a ‘licence fee’
when, in truth, he is occupying as a tenant and the sum is in fact rent.
Sham
agreements aside, the broad context in which the courts may have to identify
the true nature of payments connected with the use of land is that of informal
arrangements in which the parties themselves have never taken legal advice and
in respect of which the evidence is decidedly shaky. The task of the judge is
unenviable; on the basis of ill-remembered conversations he has to make a
decision which can have profound consequences for the occupier who may, as a
result, turn out to be homeless, a protected tenant, an occupier for life or
even an owner.
One such
case which recently came before the Court of Appeal was Bostock v Bryant
[1990] 39 EG 64. The plaintiff, who was the executor of a Mr Jones who had died
in 1987, was seeking possession of what had been the latter’s home. He claimed
that Mrs Bryant’s tenancy or licence, had been correctly terminated by a notice
taking effect in May 1989. He argued that there was no question of Rent Act
protection because either there was no tenancy or, if there was, it was a
tenancy in respect of which no rent was paid (and was thus a tenancy at a low
rent and specifically excluded).
The
arrangement between Mr Jones and the Bryants appears to have been as follows.
In 1964 he had agreed that the Bryant family could live in his house. It seems
to have been settled that he would occupy one room and that the Bryants would
live in the remainder of the property, and that he would pay the rates for the
whole house, while they would pay the total gas and electricity bills. Mrs
Bryant (her husband had died in 1973) alleged that she also paid a rent of £5
per week, evidence which, crucially, was rejected by the trial judge (a ruling
which was regarded as quite justifiable by the Court of Appeal). In the county
court it was decided that Mrs Bryant did have a protected tenancy because the
payments in respect of gas and electricity amounted to rent and, presumably,
that these were sufficient to exceed the two-thirds rateable value threshold
(now replaced by by a rental limit of £1,000 pa in London and £250 pa
elsewhere). Possession was, therefore, refused.
In
challenging this decision before the Court of Appeal two main points were
taken. First, that the payments in respect of gas and electricity were not rent
at all and, second, that even if they were rent at common law, they were not
rent for the purposes of the Rent Act 1977. The appellant’s argument on the
first issue was that, in the absence of any specific agreement by the parties
that these sums were rent, the payment of the bills should be treated merely as
a contribution towards household expenses. With this the Court of Appeal
agreed, a conclusion which put an end to the case. However, their lordships did
go on to consider the second argument; namely that the meaning of rent for the
purposes of the Rent Act (and probably the Housing Act 1988, although the
absence of rent registration in the latter could, arguably, make a difference)
is narrower than that at common law. Again, the Court of Appeal agreed with the
appellant. Previous authority had established that the whole structure of the
Rent Acts require that rent be a monetary payment, rather than services in
kind, where the latter are not quantified by the parties: see Hornsby v Maynard
[1925] 1 KB 514; Barnes v Barratt [1970] 2 QB 657. This latter
case also suggested that the payment of bills which would, necessarily,
fluctuate did not qualify as rent. With this the present Court of Appeal has
concurred. Accordingly, the defendant was not entitled to remain in the home
which she had occupied for the past 25 years; a hard decision in personal
terms, but one which is impossible to criticise on any legal basis.
