Drawing a line - Duty of Care to Independent Contractors

In this article we examine the case of Yates v National Trust [10.02.14], which concluded that an Occupier of land was not liable when a tree surgeon sustained catastrophic injuries whilst felling a tree on their land, and that there was no relevant duty of care owed to the Claimant.

Background

The Claimant alleged that the NT owed him a duty of care. He relied in particular on the Court of Appeal decision of Bottomley. In that case the Defendant had hired a stunt team to conduct a pyrotechnic display on their land. The stunt team asked the Claimant to help them. In the course of the display the Claimant suffered serious burns. The Court of Appeal held that the Defendant owed the Claimant a duty of care.

Decision

In Yates Mr Justice Nicol dismissed the claim, finding that although the NT owed the Claimant a duty of care under s.2(2) Occupiers' Liability Act 1957, the NT did not breach that duty because the Claimant was not injured as a result of the condition of the premises but because of his activity as a tree surgeon.

Further, even if the Act had applied, s.2(3)(b) would have been relevant. This provides that an occupier "may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it." The risks presented by this tree were the risks ordinarily incident to the calling of a tree surgeon that was climbing a tree with a chainsaw.

The circumstances in Bottomley were distinguished as in that case the pyrotechnics display was an exceptionally dangerous operation, not only to the Claimant but to all visitors to the Defendant's event. Whilst tree felling is dangerous, its hazardous nature was not comparable with the pyrotechnic display in Bottomley and therefore did not impose on the NT a duty of care in its choice of independent contractor. Even if such a duty existed, on the evidence available at that time, the NT was entitled to regard the independent contractor they selected as competent.

Implications

This is a helpful decision for Defendants as the Court refused to extend the scope of the duty owed by the National Trust ("NT") to the contractor's team, who were engaged in felling a diseased tree. It was during the task that the Claimant fell and suffered serious injury.

For a duty of care to exist, the imposition of liability must be just and reasonable - established by the House of Lords in Caparo Industries Plc v Dickman [1990].

To extend that duty to a contractor's employees or sub-contractors would place too onerous a burden on Occupiers and require them to take into account matters that would be considerably greater than the burden already imposed as employers and occupiers, and therefore not fair or reasonable.