Negligence – Vicarious liability – Independent contractor – Contributory negligence – Claimant contractor appointing defendant engineer for work on residential properties – Claimant alleging loss and damage resulting from defendant’s defective work – Defendant alleging contributory negligence by the claimant’s independent sub-contractor – Defendant applying to amend response by adding allegation that claimant owed non-delegable duty to procure careful performance of underpinning work – Whether claimant owing non-delegable duty – Application dismissed
The claimant contractor appointed the defendant engineer in connection with works it was carrying out at 5 and 7 Mossbury Road, Clapham, SW11. The defendant’s design involved, among other things, the underpinning of an existing gable wall shared with 9 Mossbury Road. The claimant alleged that the design was defective and the underpinning caused damage to the party wall. In consequence, the project was delayed and the claimant brought proceedings alleging that it had suffered loss and damage.
The defendant subsequently applied for permission to amend one of its responses to a request for further information made by the claimant. The response in question related to the defendant’s allegations of contributory negligence arising out of works carried out in and around the party wall by the claimant’s independent sub-contractor. In the response, the defendant relied on an exception to the general rule that a main contractor was not liable for the negligence of its independent sub-contractor, which depended on the main contractor’s actual knowledge that the work was being done in a foreseeably dangerous way and the condoning of it.
The defendant wished to amend its response by adding an allegation that the claimant owed a non-delegable duty to procure the careful performance of the underpinning work to the party wall carried out by the sub-contractor. Two potential non-delegable duties were referred to during the course of argument: (i) where the independent sub-contractor was engaged in extra-hazardous or inherently dangerous operations; and (ii) where there was a withdrawal of support by the owner of one property which caused damage to the adjoining property. The claimant contended that the exception in respect of withdrawal of support was merely a sub-category of the exception concerned with inherently dangerous operations and the entire exception had to be viewed with grave caution in the light of the decision of the Court of Appeal in Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH [2008] EWCA Civ 1257; [2008] PLSCS 306.
Held: The application was dismissed.
(1) As a matter of basic principle, the removal of rights of support was a separate concept from the carrying out of inherently dangerous operations. The former was more likely to give rise to a nuisance claim than a claim in negligence. Moreover, it was possible to see policy justifications for finding a non-delegable duty of support as between neighbours, which would not arise in situations of inherently dangerous operations. A non-delegable duty did therefore arise in such cases, irrespective of the difficulties now facing the separate exception relating to inherently dangerous operations: Biffa Waste Services Ltd v Maschinenfabrik Ernst Hese GmbH [2008] EWCA Civ 1257; [2008] PLSCS 306 considered.
However, in the present case, the claimant owed no such duty. The duty only arose as between owners of neighbouring land. The claimant was not the owner of the properties worked on: it was a building contractor. There was no reason to extend the non-delegable duty to main contractors who had engaged independent sub-contractors to carry out the works in question. Such a duty would mean that, provided that the works in question could be shown to be connected with the removal of support to neighbouring land, main contractors would be potentially liable in tort for procuring the careful performance of work delegated to independent sub-contractors. There was no authority in support of that potentially wide-ranging obligation. It was contradicted by the much narrower duty noted in D&F Estates Ltd v Church Commissioners for England [1989] AC 177.
(2) Even if the claimant did owe a non-delegable duty to procure the careful performance of the underpinning work to the party wall that it had delegated to the sub-contractor, such a duty would not be relevant to the allegations of contributory negligence which did not depend on the existence of any sort of duty. What mattered was the claimant’s failure to take reasonable care to look after itself which would not involve some form of strict liability/non-delegable duty owed to others arising out of the sub-contractor’s acts or omissions. Moreover, the duty alleged in this case was not relevant to the allegations of contributory negligence because any non-delegable duty would have been owed by the claimant not to the defendant but to the occupier of the adjoining property.
(3) In the circumstances, the amendments had no real prospect of success and should not be allowed. They were an ingenious but illegitimate attempt to render the main contractor vicariously liable for the acts or omissions of its independent sub-contractor. In any event, the amendments would not have been allowed given the late stage at which the application had been made just a few weeks before the trial, the probable need for further evidence to meet them and therefore the fatal risk to the trial date.
Joseph Sullivan (instructed by Kennedys) appeared for the claimant; Lynne McCafferty (instructed by Beale & Co) appeared for the defendant.
Eileen O’Grady, barrister
Click here to read transcript: Willmott Dixon Construction Ltd v Robert West Consulting Ltd
