Rowe v Herman & Ors [1997] EWCA Civ 1633 (7th May, 1997)

LORD JUSTICE SIMON BROWN: This is an appeal by leave of the judge below against the order of Judge Viljoen made at the Barnet County Court on 19th September 1996 refusing the first defendant's application to strike out the plaintiff's claim against him on the ground that it discloses no cause of action. That application had succeeded before District Judge Karet on 18th July 1996. Judge Viljoen, however, allowed the plaintiff's appeal.

The plaintiff sues the first, second and third defendants in negligence. He also sues the fourth defendant Highway Authority for negligence and breach of statutory duty for failing to have the metal plates removed. The present appeal, however, is concerned only with the plaintiff's cause of action against the first defendant (although necessarily its outcome determines also the identical case against the second defendant).

The judge below held that there was a duty upon occupiers such as the first and second defendant "when the contractor withdraws from the works to ensure that there are no remaining hazards which could injure a third party." The question before us is whether that is a correct view of the law.

The starting point for consideration of this issue must be the basic principle that an employer is not liable for an independent contractor's negligence (provided always that the contractor employed is one reasonably supposed by the employer to be competent), a principle conveniently found stated in Widgery LJ's judgment in Salsbury v Woodland and Others [1970] 1 QB 324 at 336:

"It is trite law that an employer who employs an independent contractor is not vicariously responsible for the negligence of that contractor. He is not able to control the way in which the independent contractor does the work, and the vicarious obligation of a master for the negligence of his servant does not arise under the relationship of employer and independent contractor. I think that it is entirely accepted that those cases - and there are some - in which an employer has been held liable for injury done by the negligence of an independent contractor are in truth cases where the employer owes a direct duty to the person injured, a duty which he cannot delegate to the contractor on his behalf."

There are two main classes of case in which the employer is held to be under a non-delegable duty: first, cases where the work commissioned involves "extra-hazardous acts"; second, cases where danger is created by work on a highway. These are sometimes spoken of as exceptions to the general principle; sometimes as cases where, because the employer's duty is non-delegable, the contractor is to be regarded as his agent for performing the primary duty of care which lies upon the employer himself - although even then the employer is not liable for the contractor's casual or collateral negligence.

There was no question here of these works involving extra-hazardous acts. As to work on a highway, the judge below readily accepted the first defendant's contention that the work here was carried out on private land, not on the highway, and that it was entirely the contractor's idea to put down these metal plates. There was accordingly no liability on the first defendant as employer whilst the contractor was undertaking the contract work on site. The judge held, however, that once the contractor had left the site there then sprang up a duty upon the employer to ensure that no hazards had been left behind on the highway.

Although on its face the appeal before us was concerned solely with what I may call this springing duty, we saw great difficulty with such a notion and thought it right to consider also whether this case should properly be regarded as one involving a non-delegable duty on the employer akin to that arising in the highway cases. After all, if it was a necessary part of the contractor's fulfilment of his commission here that he should obstruct the public highway in this fashion, it is not immediately obvious why the mere fact that the actual contract work was being undertaken on private land should make a difference to the employer's liability for highway hazards.

We accordingly explored the true nature of the highway exception. An early illustration of it is to be found in Penny v The Wimbledon Urban District Council [1899] 2 QB 72. There the District Council had employed a contractor to repair a highway. In the course of their works the contractors negligently left a heap of soil unlighted and unprotected over which the plaintiff fell one night and was injured. In upholding Bruce J's finding of liability against the District Council, A.L. Smith LJ said this:

"Dealing with the facts [Bruce J says] 'the district council employed a contractor to do work upon the surface of a road which they knew was being used by the public, and they must have known that the works which were to be executed would cause some obstruction to the public, and some danger, unless means were taken to give due warning to the public.' Higher upon the same page he had stated, with regard to Pickard v Smith 10 CB (NS) 470: 'The principle of the decision, I think, is this, that when a person employs a contractor to do work in a place where the public are in the habit of passing, which work will, unless precautions are taken, cause danger to the public, an obligation is thrown upon the person who orders the work to be done to see that the necessary precautions are taken, and that, if the necessary precautions are not taken, he cannot escape liability by seeking to throw the blame on the contractor.' I agree with this entirely, but would add as an exception the case of mere casual or collateral acts of negligence, such as that given as an illustration during the argument - a workman employed on the work negligently leaving a pickaxe, or such like, in the road. I cannot hold that leaving heaps of soil in the road, which would by the very nature of the contract have to be dug up and dealt with, is an act either casual or collateral with reference to the contract."

"The second class of case, 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. [1899] 2 QB 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."

"The second exception is a special one - that of work on the highway. There, liability for independent contractors arises because those who have statutory authority to dig up a highway themselves owe a duty to the public using that highway, and the fact that they have a statutory authority to excavate does not absolve them from that duty, even though they employ an independent contractor to do the work. It is not a vicarious liability at all but a direct one; and this explains Penny v Wimbledon Urban District Council [1899] 2 QB 72 on which the judge relied."

"[The categories] include another where the dangers are created by work done upon a public highway, whether by a public authority or others; and this is a category discussed under that precise and limited heading in Salmond on Torts, 14 ed. (1965), p 691. It is there treated as being a separate and narrow category, and rightly so to my mind - on the assumption, of course, that the phrase 'upon a highway' or 'in a highway' includes the air space above it and the ground below it."

Mr Iwi, whilst not principally concerned to address the situation arising here before the contractor left the site, nevertheless seeks to place considerable reliance upon Penny. There is, he points out, a marked similarity between the accident here and the accident there. Both involve the plaintiff walking at night into an unlit and unprotected obstacle on the highway, there a heap of soil, here a metal plate. The act here was no more casual or collateral than there. There should, he submits, be liability here just as there.

In my judgment, however, there are two critical differences between this case and Penny (and, indeed, the other highway cases). First, the highway cases all involve obstruction to the highway as a result of work being carried out under statutory powers. The category is, as Sachs LJ says, "a separate and narrow category." Second, the obstruction (or other event giving rise to the loss, for example the breaking of the gas-main during the construction of a sewer in Hardaker v Idle District Council [1896] 1 QB 335) arose in those cases directly from the work which the employer himself was required to do and was integral to it. In Penny, the soil "would by the very nature of the contract have to be dug up"; or, as Vaughan Williams LJ put it in the same case: "the act which occasions the injury is one which the employer is employed to do."

Here, by contrast, not merely were the first and second defendants not obliged to build a garage in the first place, but there is no suggestion (no evidence and no pleaded allegation) that it was in fact a necessary part of the garage construction to obstruct the footway outside No 246 in this way. There is no reason to suppose that the garage could not have been constructed and the plant and materials delivered to site without these metal plates being put down to protect the footway. Given, moreover, that they constituted a hazard (as the claim postulates) one might suppose that the highway authority's permission was required for them, as for a builder's skip - see section 139 of the Highways Act 1980. If permission was required and not obtained, it is impossible to regard the laying of these plates as a necessary part of the contract work. And if permission was obtained, it seems to me likely to have been granted subject to conditions to promote safety and no doubt (as with builders' skips - see section 139 (2)(f)) a condition also as to removal at the end of the period of permission. Although the point was not argued before us, I find it difficult to suppose that an occupier would be legally liable for, say, an injury caused by his builder's negligently unlit skip.

I entertain no doubt, therefore, that had the plaintiff's accident occurred during the course of the contract works, the first and second defendants as occupiers could not have been held liable for it. Why, then, should they suddenly come under a duty once their contractor leaves the site? If they are not responsible for these plates even whilst they are being used (whether as a matter of necessity or not) for the purpose of building their garage, why should they be responsible for them afterwards? The question appears to me unanswerable.

By the same token that the employer has no control over the manner in which his independent contractor carries out his work -the reasoning underlying the general rule - so too he has no control over the way his independent contractor clears up. Even had the first defendant here, perhaps out of a sense of civic duty, telephoned the third defendants at some point (precisely when is this duty said to arise?) to suggest that they should now remove these plates, he could not have compelled them to do so. Should he then have removed them himself? That would be to impose upon him a duty to take active steps to remedy a danger not created by him, and for the creation of which he was not in law responsible. An occupier is, of course, responsible for any dangers created or left on his own land. He is not, however, to be treated, as the judge's order below in effect does treat him, for all the world as if he were the occupier also of the adjacent highway.

ORDER: Appeal allowed; plaintiff's claim against first defendant be struct out; plaintiff do pay the first defendant's costs of both actions, to include the costs of this appeal and the hearing before His Honour Judge Vilgoen, to be taxed if not agreed; the determination of the plaintiff's liability for costs, to which section 17 of the Legal Aid Act 1988 applies, be adjourned pursuant to regulation 127 of the Civil Legal Aid (General) Regulations 1989; legal aid taxation of the costs of plaintiff and first defendant; liberty for first defendant to apply hereafter for his costs to be paid by other defendants; leave to appeal to the House of Lords refused.

England and Wales Court of Appeal (Civil Division) Decisions

ROWE v. HERMAN and ORS [1997] EWCA Civ 1633 (7th May, 1997)

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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Rowe v Herman & Ors [1997] EWCA Civ 1633 (7th May, 1997) URL: http://www.bailii.org/ew/cases/EWCA/Civ/1997/1633.html Cite as: [1997] EWCA Civ 1633, [1997] WLR 1390, [1997] 1 WLR 1390