Legal Update - Duty of Care: Tree surgeon fall case dismissed in High Court in duty of care clarification

A decision was handed down in the High Court on 10 February in Yates v National Trust, which clarifies the duty of care owed by occupiers to the employees of their contractors.

The claimant sought to argue a duty of care was owed to him, as the employee of a contractor, by the defendant as occupier. The defendant engaged the services of a contractor to carry out tree works at one of its properties. The tree work involved the felling of a diseased horse-chestnut tree.

While engaged in the preliminary task of climbing the tree and taking out the horizontal branches, the claimant fell from a height of about 50 feet, as a result of which he sustained a fractured spine that rendered him paraplegic.

The Work at Height Regulations 2005 imposes a duty even on a
non-employer to take care to see that those working at height are safe. That duty is, however, dependent on the non-employer – namely the defendant in this case – exercising control over the system of work to be carried out.

In this case, the defendant did not exercise any control over the tree works other than to say they wished the work to be carried out safely. The system of work to be undertaken was a matter for the contractor and his men. The claimant looked exclusively to his employer – the contractor – for instructions.

The Occupiers Liability Act 1957 could not assist the claimant either, as he was not injured due to the state of the premises but because of his activity as a tree surgeon. Even had the Act applied, the defendant was entitled to expect the claimant to guard against the risks ordinarily incident to his occupation.

The claimant’s single argument at trial was that the defendant as occupier owed him a duty of care in negligence to ensure the contractor (his employer) was competent. Throughout the case it was argued that the contractor was not competent and that the claimant was too inexperienced to carry out the work in the tree.

Onerous obligation
It was held that the defendant owed no such duty of care to the claimant. It would not be fair or reasonable to impose a duty which would place a more onerous obligation on occupiers to their contractor’s employees than they owed to their visitors (under the Occupiers Liability Act 1957).

There was far more scope for an employee to be injured than for an ordinary visitor, and the range of matters an occupier would have to take into account in order to discharge this wider duty would be considerably greater.

The judge distinguished the Court of Appeal decision in Bottomley v Todmorden Cricket Club, whereby the defendant cricket club hired a two man stunt team called Chaos Encounter to conduct a pyrotechnic display, part of which involved a pair of mortars filled with petrol into which would be lowered bags filled with gunpowder. The claimant was injured while assisting the stunt team.

While a duty of care was held to be owed by the club to the claimant, the decision is best understood on the basis the activity was extra hazardous, not only to the claimant but to all visitors. The judge found that while tree climbing is hazardous –
as is most working at height – it is simply not in the same league as the pyrotechnic display in Bottomley.

The judge also held that even assuming a duty of care was owed by the defendant to the employees of the contractor to select a competent contractor, the defendant was not in breach of that duty as it was entitled to regard the contractor as a reasonably competent contractor.

Had the claimant succeeded, the implications for any person – private or corporate – who engaged the services of a contractor would have been transformed. An occupier would have been expected to possess an equivalent level of skill to the contractor to ensure the work was being done safely. By analogy, this would have applied to a householder appointing a window cleaner, only for the window cleaner’s apprentice to fall from the ladder.

A key feature of this case was that the contractor possessed public liability insurance but not employer’s liability insurance, as he regarded the claimant as self-employed. His PL insurers disagreed – quite rightly – and this absence of relevant insurance led the claimant to focus his attention elsewhere. One can only speculate whether the claimant would have pursued the defendant had EL insurance existed.

Insurers have, therefore, nothing to fear from such cases involving occupiers and falls from height in circumstances where the occupier exerts no control over the operation of their contractors. Occupiers will understandably make representations, but this is to be distinguished from control of the operation itself, which remains the remit of the contractor.

Where a degree of control is exerted over the operation, then the scope of any duty under the Work at Height Regulations or in negligence will be limited to the extent of that control. That duty will then be discharged if the occupier has acted reasonably.

Nicholas Thorne, partner, Berrymans Lace Mawer

This article was published in the 27 March edition of Post magazine.