Occupier employing independent contractor to carry out works – Contractor laying metal plating across pavement outside property – Contractor finishing works and leaving site – Metal plates remaining across pavement – Plaintiff tripping on plates and claiming damages for personal injury – Whether occupier under duty to remove hazard – District judge allowing application to strike out plaintiff’s claim – High Court allowing plaintiff’s appeal – Court of Appeal allowing occupier’s appeal
The first and second defendants were the joint owners and occupiers of 246 High Road, London N2 (the property). The plaintiff occupied a ground-floor flat immediately adjacent to the property. In 1992 the first and second defendant engaged the third defendant company as independent contractors to build a garage on the property. For the purpose of those works, and to protect the paving stones outside the property against the passage of heavy lorries delivering to the site, the third defendant laid metal plates across the footway. The plates constituted a foreseeable hazard to passers-by. The third defendant completed the works and left the site leaving the plates in situ. On December 12 1992, while walking home late at night, the plaintiff tripped over one of the metal plates and fractured his right ankle. The plaintiff issued proceedings against the first, second and third defendants in negligence. He also issued proceedings against the fourth defendant, the Highway Authority, for negligence and breach of statutory duty.
A district judge allowed the first defendant ‘s application for the action to be struck out on the basis that it disclosed no cause of action. The High Court allowed the plaintiff’s appeal against that order and held that a duty had arisen upon the first defendant, as the employer, to ensure that no hazards had been left behind on the highway after the third defendant had left the site. The first defendant appealed on the ground that an employer was not liable for an independent contractor’s negligence and contended that the exception to the principle, namely that an employer was liable where danger was created by work on a highway, did not apply.
Held The appeal was allowed.
1. If the accident had occurred during the course of the works the first and second defendant would not have been liable. They had not obstructed the highway as a result of an obligation under statutory powers to carry out the works, and it had been a necessary part of the works that the footway outside the property was obstructed: see Penny v Wimbledon Urban District Council [1899] 2 QB 72, distinguished.
2. There was no reason why the first and second defendants as occupiers, who could not have been held liable for an accident which had occurred during the course of the contract works, should have come under a duty once the contractors had left the site. They could not have compelled the contractor to clear up the plates and they had not been under a duty to remove the danger themselves. They were only liable for dangers on their own land and they were not to be treated as occupiers of the highway. Therefore the plaintiff’s claim against the first defendant was to be struck out.
Francis Treasure (instructed by Chambers Rutland & Crawford) appeared for the appellant; Quintin Iwi (instructed by Chesham & Co) appeared for the respondent.
