By Colin Richmond
In this case Mr Justice Nichol held that an occupier was not liable when a tree surgeon suffered serious injury whilst felling a tree. A significant part of the judgment related to whether or not a duty of care was owed.
The Defendant, N, engaged the Claimant, J, to cut down diseased trees. J’s team included Y, who was to remove branches. Y climbed the tree using a rope and harness and began work. He fell from a height of 50 metres and suffered a spinal fracture which rendered him paraplegic. It was unclear if J’s public liability insurance would cover his employees and there was some confusion as to whether or not the safety certificates held by Y were sufficient to cover the work that he was doing.
Y’s Case Against N
Y’s case was that N owed him a duty of care because, when hiring J, it had not taken reasonable care to ensure that he and his work methods were competent and safe. He further contended that N had been negligent in choosing J as a contractor as he did not hold the appropriate qualifications to carry out the dismantling work.
Although it was held that N owed a duty to Y under s.2(2) Occupiers’ Liability Act 1957, that was irrelevant as J was not injured due to the state of the premises but due to his work as a tree surgeon.
Having found that N was entitled to regard J as a competent contractor, Nichol J went on to say:
In those circumstances it would be exceptional to find that the NT as occupier owed a duty of care to its contractors’ employees to see that the work which they had commissioned was carried out safely. The reason is that the hirer can expect an independent contractor (certainly one who appears to be reasonably competent) to choose appropriate and safe means for its employees to carry out their tasks.
Further, even though the Work at Height Regulations 2005 imposed a duty, even on a non-employer, to take care to see that those working at height were safe, that duty was dependent on exercising control over the worker and the occupier did not have control over the contractor’s employees.
The claim was dismissed.
In Caparo Industries plc v Dickman  2 AC 605 it was held that for a duty of care to exist it must be just and reasonable to impose such a liability. To do so in this case would place an unacceptably onerous burden on the occupier. Accordingly, such a duty should not be imposed.
To expect an occupier to guard against the sort of problem that occurred here, when it involved a contractor’s employees or sub-contractors, would be unjust, as the number of matters that the occupier would potentially have to take into account to discharge the duty would be too great.