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Title : Ferguson v Welsh

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Status:  Positive or Neutral Judicial Treatment

*1553  Ferguson v Welsh and Others

House of Lords

29 October 1987

[1987] 1 W.L.R. 1553

Lord Keith of Kinkel, Lord Brandon of Oakbrook, Lord Griffiths , Lord Oliver of Aylmerton and Lord
Goff of Chieveley

1987 July 6, 7; Oct. 29

Occupiers' Liability—Independent contractor—Contractor carrying out work on occupier's premises

—Unsafe system of work—Employee of contractor injured—Demolition work—Whether duty of
occupier to ensure safe system of work—Whether “construction” embraces demolition— Occupiers'
Liability Act 1957 (5 & 6 Eliz. 2, c. 31), s. 2(4)(b)
1

In July 1976 a district council accepted a tender from S. for the demolition of a building on a
site owned by them. The invitation to tender contained a clause prohibiting sub-contracting
without the council's consent. Subsequently S. made certain arrangements with the W.
brothers who regularly undertook demolition work, one of whom offered the plaintiff a job on
the demolition. Whilst engaged with one of the brothers in the work of demolition, which was
carried out in a dangerous manner, the plaintiff sustained serious injuries which had left him
partly paralysed. At the trial of the plaintiff's action for damages for personal injuries and
consequential loss, Staughton J. gave judgment for the plaintiff against the W. brothers, but
found that S. had not engaged or authorised them to carry out the demolition and was not
himself liable to the plaintiff. The claim of the plaintiff against the council was also dismissed.
On appeal by the plaintiff, the Court of Appeal allowed the appeal to the extent of ordering a
new trial as against S. in the light of new evidence adduced by the plaintiff which suggested
that S. might have sub-contracted the demolition to the brothers without permission.

On appeal by the plaintiff:—

Held, dismissing the appeal, that even on the assumption that there was evidence that was
capable of establishing that the plaintiff was an invitee of the council for the purpose of
demolishing the building, the plaintiff had no claim in the circumstances against the council
either under the Occupiers' Liability Act 1957 or at common law (post, pp. 1559B–C, E–F,
1561C–E, H–1562A, C–E, F–G, 1563E–G, H–1564A).

Per Lord Keith of Kinkel, Lord Brandon of Oakbrook and Lord Griffiths. Section 2(4)(b) of the
Occupiers' Liability Act 1957 is designed to afford some protection from liability to an occupier
who has engaged an independent contractor who has executed work in a faulty manner, and
on a broad and purposive interpretation of that provision the activity of demolition may
properly be considered to be embraced by the word “construction.” Further, the protection
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afforded covers liability from dangers created by a negligent act or omission by the contractor
in the course of his work on the occupier's property (post, pp. 1560D–F, 1562C–D, F–G). But
there may be circumstances where the occupier might be liable for something *1554  done or
omitted to be done by the independent contractor on the property if the occupier did not take
reasonable steps to satisfy himself that the contractor was competent and that the work was
being properly carried out (post, pp. 1560F–G, 1562C–D, F–G).

Per Lord Oliver of Aylmerton. The liability of the occupier to an injured employee of the
independent contractor in the postulated circumstances would be rather that of joint tortfeasor
than of an occupier (post, p. 1562E–F).

Per Lord Goff of Chieveley. The mere fact that an occupier may know or have reason to
suspect that the contractor carrying out work on his building may be using an unsafe system
of work cannot of itself be enough to impose upon him a liability under the Occupiers' Liability
Act 1957 or indeed at common law, to an employee of the contractor thereby injured, even if
the effect of using that unsafe system is to render the premises unsafe and thereby to cause
injury to the employee (post, p. 1564A–B).

Decision of the Court of Appeal affirmed.

The following case is referred to in their Lordships' opinions:

Ladd v. Marshall [1954] 1 W.L.R. 1489; [1954] 3 All E.R. 745, C.A.

The following additional cases were cited in argument:

Addie (Robert) & Sons (Collieries) Ltd. v. Dumbreck [1929] A.C. 358, H.L.(Sc.)
Brown v. Dean [1910] A.C. 373, H.L.(E.)
Edwards v. Railway Executive [1952] A.C. 737; [1952] 2 All E.R. 430, H.L.(E.)
Fisher v. C.H.T. Ltd. (No. 2) [1966] 2 Q.B. 475; [1966] 2 W.L.R. 391; [1966] 1 All E.R. 88,
C.A.
Herrington v. British Railways Board [1972] A.C. 877; [1972] 2 W.L.R. 537; [1972] 1 All E.R.
749, H.L.(E.)
Hunter v. Chief Constable of the West Midlands Police [1982] A.C. 529; [1981] 3 W.L.R. 906;
[1981] 3 All E.R. 727, H.L.(E.)
Pannett v. P. McGuinness & Co. Ltd. [1972] 2 Q.B. 599; [1972] 3 W.L.R. 386; [1972] 3 All
E.R. 137, C.A.
Roles v. Nathan [1963] 1 W.L.R. 1117; [1963] 2 All E.R. 908, C.A.
Rose v. Plenty [1976] 1 W.L.R. 141; [1976] 1 All E.R. 97, C.A.
Smith v. Littlewoods Organisation Ltd. [1987] A.C. 241; [1987] 2 W.L.R. 480; [1987] 1 All
E.R. 710, H.L.(E.)
Stone v. Taffe [1974] 1 W.L.R. 1575; [1974] 3 All E.R. 1016, C.A.

APPEAL from the Court of Appeal.

This was an appeal by leave of the House of Lords (Lord Bridge of Harwich, Lord Brandon of
Oakbrook and Lord Oliver of Aylmerton) by the plaintiff, Joseph Ferguson, from that part of the
judgment dated 16 September 1986 of the Court of Appeal (Lawton, Slade and Mustill L.JJ.)
affirming the order and judgment dated 25 May 1984 of Staughton J. dismissing the plaintiff's
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claim against the fourth defendant, Sedgefield District Council. By a writ issued on 6 July 1979
and an amended statement of claim served on 29 July 1982 the plaintiff claimed damages for
personal injuries and consequential loss arising from an accident which occurred on 16 July
1976 from the first defendant, James Welsh, the second defendant, Derek Welsh, the third
defendant, John George Spence and the fourth defendant. Staughton J. gave judgment for the
plaintiff against the first and second defendants in the sum of £150000, *1555  but dismissed
the claim against the third and fourth defendants. On appeal by the plaintiff, the Court of
Appeal ordered a retrial against the third defendant but affirmed the order of Staughton J.
dismissing the claim against the fourth defendant.

The facts are stated in the opinion of Lord Keith of Kinkel.

Representation

David Robson Q.C. and Philip Kramer for the plaintiff.

Simon Hawkesworth Q.C. and Esmond Faulks for the fourth defendant.

Lord Keith of Kinkel

Their Lordships took time for consideration.

29 October. My Lords, on 16 July 1976 the appellant (“Mr. Ferguson”) sustained an accident,
which left him paralysed from the waist downwards as a result of a broken back, while he was
engaged on demolition work on a building at West Cornforth in the County of Durham. The
building was on a site owned by the respondents, Sedgefield District Council, (“the council”)
who were engaged in carrying out, through their direct labour force, a scheme for providing
sheltered housing for the elderly. Work was well advanced on certain parts of the scheme, and
in order to make further progress it was necessary to demolish the building in question. The
council issued invitations to tender for the demolition work to a number of contractors on their
approved list including the third defendant (“Mr. Spence”).

The invitation to tender included the following condition:

“Prior approval must be obtained from the engineer for the time being of the council
before the employment of a sub-contractor upon site. Any approved sub-contractor
shall secure public liability insurance cover to the satisfaction of the council before
being engaged on site.”

The specification of the works to be carried out included the following clauses:

“2. All demolition works are to be carried out in accordance with ‘THE BRITISH
STANDARDS INSTITUTION’ — ‘CODE OF PRACTISE FOR DEMOLITION’ CP.94.

“3. Pulling down shall be carried out in such a manner as to cause as little
inconvenience as possible to adjoining owners or the public and the contractor will be
held responsible for any claims which may arise from the disregard of this clause. The
rubbish is to be sprinkled with water to prevent dust arising and all proper screens
and protection provided to the satisfaction of the engineer.

“10. Possession of the site will be given to the contractor immediately on signing the
contract and he shall proceed with the demolition and complete same as soon as
possible. It is essential that the whole of this work be completed at the earliest
possible moment..

“17. Every contractor (other than an individual contractor, i.e. a person who performs
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personally the demolition operations without employing any workmen) must appoint
a competent person experienced in demolition operations to supervise the work.

“18. All practicable steps are to be taken, both before and during demolition works,
to prevent danger to persons employed *1556  from fire, or explosion through
leakage or accumulation of gas or vapour or flooding. Adjoining parts of the building
or structure being demolished must not be overloaded with debris. Precautions
against premature collapse must be taken and supervised by competent person, with
adequate experience in the operation specified:- (a) The actual demolition of a
building or structure or part thereof unless there is no reasonably foreseeable risk of
collapse so as to endanger persons employed. (b) The actual demolition of any part
of a building or structure where there is a special risk of collapse so as to endanger
persons employed.

“24. The following materials arising from the demolition are to remain the property of
the employer and are to be cleaned and stacked as noted where directed on the site
or otherwise disposed of as specifically stated. The remainder of the materials arising
from the demolition is to become the property of the contractor and is to be carted
away from the site to a place provided by the contractor and the contractor is to
make due allowance in his tender for the value of any sound materials so acquired or
residual scrap value arising.”

Mr. Spence put in a tender for the sum of £330, which was accepted. On 7 July 1976 the
council wrote to him confirming that work should begin on 12 July. On 11 July Mr. Spence
made certain arrangements by telephone with the first and second defendants (“the Welsh
brothers”), who regularly undertook demolition work. There was a conflict of evidence about
the nature of these arrangements, which will be discussed later. On 13 July 1976 one of the
Welsh brothers met Mr. Ferguson in a public house and offered him a job on demolition work,
starting next day. Mr. Ferguson accepted, and next morning the Welsh brothers collected him
in a van and took him to the building in West Cornforth which was the subject of Mr. Spence's
demolition contract with the council. One of the Welsh brothers, Mr. Ferguson, and another
man taken on by the Welsh brothers spent that day and the next day removing some valuable
articles from the building and then dismantling its interior, removing partition walls, pushing
down ceilings and sawing through and removing joists, and later, having been joined by
others, in taking off slates and dismantling the roof. Work continued on Friday, 16 July, and by
early afternoon the building was an empty shell except for some joists across the top of the
first floor rooms. Mr. Ferguson and one of the Welsh brothers were standing on a wall
preparing to remove joists when a collapse occurred and both men fell to the ground, Mr.
Ferguson suffering the injuries in respect of which he sues.

On 6 July 1979 Mr. Ferguson issued a writ in the Queen's Bench Division claiming damages
against the Welsh brothers, Mr. Spence, and the council. The writ was served on 8 August
1980 and defences were served by all the defendants. Trial of the action took place before
Staughton J. at Newcastle-upon-Tyne early in May 1984. Damages, if any should be awarded,
had previously been agreed at £150000. Staughton J. held that the Welsh brothers were liable
in damages to Mr. Ferguson but that Mr. Spence and the council were not. He found that the
system adopted by the Welsh brothers for demolition of the building was highly dangerous and
in breach of various of the Construction (Working Places) Regulations 1966 (S.I. 1966 No. 94)
and of the Construction (General Provisions) Regulations 1961 (S.I. 1961 No. *1557  1580).
For these breaches they were liable to Mr. Ferguson as their employee. As regards the case
against Mr. Spence, Staughton J. had to deal with a conflict of evidence between him and the
Welsh brothers. According to the latter, it was agreed with Mr. Spence that they should strip
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any valuable materials from the building and level the chimneys and gables to ceiling height.
Their reward was to be the value of the materials which they salved. Mr. Spence, on the other
hand, gave evidence that the agreement was to the effect that the Welsh brothers should take
away the rubbish when he himself had accomplished the demolition of the building and that
they should have the benefit of any saleable salvaged material; that demolition could not start
on 12 July because of restrictions imposed by the water authority which inhibited him from
using water to damp down dust; and that since the Welsh brothers had no other work on hand
they should, in the meantime, start by taking away rubbish in the back yard and any loose
materials inside the building. Staughton J. rejected the account given by the Welsh brothers
and accepted that of Mr. Spence, who he said in general impressed him as an honest and
truthful witness, whereas he could not regard the evidence of the Welsh brothers as reliable.
In that state of affairs he found that Mr. Spence was not carrying out any demolition work
himself, nor was he doing so vicariously through the Welsh brothers, whom he had not
engaged or authorised to demolish the building. He therefore held that Mr. Spence was not
liable for breach of any of the Regulations of 1961 because he was not performing any
operation to which these regulations applied. Staughton J. went on to consider a case levelled
against Mr. Spence on the ground that he owed to Mr. Ferguson the common duty of care
under the Occupiers' Liability Act 1957 . He held that Mr. Spence was an occupier of the
premises, but found that the purposes for which Mr. Ferguson had, through the Welsh
brothers, been invited to be there did not include the demolition of the building, in particular
the removal of joists at roof level. He expressed his finding in the alternative fashion that,
whereas Mr. Ferguson was a lawful visitor to the premises on Wednesday, 14 July for the
purpose of removing rubbish, he was not a lawful visitor on Friday, 16 July for the purpose of
demolition.

As to the case against the council, Staughton J. found that the council were not a contractor in
relation to the building nor were they an employer of workmen, and accordingly held that Mr.
Ferguson had no valid claim against them under the Regulations of 1966 nor under those of
1961. He held that although the council were an occupier of the premises along with Mr.
Spence, the claim against them under the Act of 1957 failed because they had issued no
invitation to Mr. Ferguson to be on the premises and had not delegated to Mr. Spence the right
to invite him. If Mr. Ferguson was not a lawful visitor of Mr. Spence, he was not a lawful visitor
of the council.

Mr. Ferguson appealed to the Court of Appeal. Before the appeal came on for hearing he
discovered a number of things which he considered would have had an important influence on
the result of the action if they had been in evidence at the trial. In the first place, he obtained
affidavits from four persons to the effect that on various occasions before Mr. Ferguson's
accident they had acted as or worked for sub-contractors to Mr. Spence for demolition work,
the work being carried out according to the same dangerous system as that adopted in the
present case. The precise locations of the work carried out were not *1558  stated in the
affidavits, but in one case at least it seemed likely that Mr. Spence's demolition contract must
have been with the council or their predecessors, Spennymoor Urban District Council. In the
second place, he obtained information from the Northumbrian Water Authority that at the time
of the accident there were no restrictions at all on the use of water for industrial purposes such
as damping down dust in the course of demolition work. In the third place, Mr. Spence was on
29 January 1985 convicted of conspiracy to steal at Teesside Crown Court and sentenced to
four months' imprisonment, the evidence indicating that his dishonest activities had been
carried on over a period which spanned the dates of the trial before Staughton J. The first of
these matters was important because at the trial Mr. Spence had given evidence that he had
never sub-contracted any demolition work for which he had contracted with the council. The
second was important because of Mr. Spence's evidence that he could not begin the demolition
work on 12 July because of the shortage of water for damping down. The third tended to cast
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doubt upon Mr. Spence's general honesty and credibility.

Before the Court of Appeal Mr. Ferguson conducted his own case. He sought leave to adduce
further evidence about the three matters mentioned above, with a view to a new trial being
ordered against both Mr. Spence and the council. On 16 September 1986 the Court of Appeal
(Lawton, Slade and Mustill L.JJ.) gave judgment allowing a new trial as against Mr. Spence but
not as against the council. The leading judgment was given by Lawton L.J. He expressed
doubts as to whether the evidence about Mr. Spence's conviction should be admitted, but
found it unnecessary to decide that because in his view the evidence about water shortage and
about Mr. Spence's practice of employing sub-contractors appeared credible and likely to have
an important effect on the result of the action against Mr. Spence and could not with
reasonable diligence have been obtained for use at the original trial: Ladd v. Marshall [1954] 1
W.L.R. 1489 . Its importance was, of course, that it tended to indicate that Mr. Spence's
evidence about the terms of his arrangement with the Welsh brothers was untrue and the
evidence of the latter was true. In that situation Mr. Spence would be liable to Mr. Ferguson
for breaches of the Regulations of 1961. As regards the position of the council, Lawton L.J.
expressed the opinion that, contrary to the submission by their counsel, Staughton J. was right
to hold that they were occupiers of the building along with Mr. Spence. In his view, however,
Mr. Ferguson could not be said to have been a lawful visitor of the council on the premises
within the meaning of the Act of 1957. They did not want him there and he was there against
their wishes. Accordingly, even on the new evidence, Mr. Ferguson would have no prospect of
establishing a case against them under the Act of 1957.

Mr. Ferguson now appeals to Your Lordships' House, with leave given here, against that part of
the order of the Court of Appeal which refused a new trial as against the council. The
importance to him of success is manifest. The Welsh brothers are men of straw, and the
prospects of Mr. Spence (who had no relevant insurance at the time of the accident) being
able to satisfy an award of damages against him to the tune of £150000 are probably remote.

The principal argument for Mr. Ferguson was related to the application of the Occupiers'
Liability Act 1957. It was accepted on behalf of the council that, for the purposes of the Act,
they were *1559  occupiers of the building along with Mr. Spence. Section 1(1) of the Act of
1957 provides:

“The rules enacted by the two next following sections shall have effect, in place of the
rules of the common law, to regulate the duty which an occupier of premises owes to
his visitors in respect of dangers due to the state of the premises or to things done or
omitted to be done on them.”

Subsection (2) provides, inter alia, that for the purposes of the rules so enacted the persons
who are to be treated as an occupier's visitors are the same (subject to an immaterial
exception) as the persons who would at common law be his invitees or licensees. So the first
matter for consideration is whether in relation to the council Mr. Ferguson was their visitor. It
is to be considered in the light of the prospect that at a new trial it would be established that
Mr. Spence sub-contracted the demolition to the Welsh brothers, so that he invited the latter
to come onto the premises with persons employed by them such as Mr. Ferguson, so as to
make Mr. Ferguson his visitor. The contract between the council and Mr. Spence prohibited
sub-contracting without the consent of the council. No consent for the sub-contract for the
Welsh brothers was asked for or given, and counsel for Mr. Ferguson did not suggest that the
council knew that Mr. Spence had unlawfully sub-contracted. It was maintained, however, that
by putting Mr. Spence into occupation of the building for purposes of demolition the council
had clothed him with apparent or ostensible authority to invite other persons onto the
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premises, including sub-contractors and their employees. Such persons would know nothing of
the limitation on Mr. Spence's actual authority, and were not reasonably to be treated as
trespassers in a question with the council. In my opinion, there is evidence capable of
establishing that Mr. Spence had ostensible authority from the council to invite the Welsh
brothers and their employees onto the site. Mr. Spence was placed in control of the site for
demolition purposes, and to one who had no knowledge of the council's policy of prohibiting
sub-contracts this would indicate that he was entitled to invite whomsoever he pleased onto
the site for the purpose of carrying out demolition.

The next question is whether the council were in breach of the common duty of care owed to
visitors under the Act of 1957, which is thus expressed in section 2(2) :

“The common duty of care is a duty to take such care as in all the circumstances of
the case is reasonable to see that the visitor will be reasonably safe in using the
premises for the purposes for which he is invited or permitted by the occupier to be
there.”

The safety referred to is safety not only from dangers due to the state of the premises but
also known dangers due to things done or omitted to be done on them.

A problem at once arises as to the purposes for which the council is to be taken as having
invited Mr. Ferguson to be on the premises, and as to whether in taking part in the demolition
of the building he was using the premises for these purposes. I consider that the council,
having put Mr. Spence into occupation of the premises and thus put him into a position to
invite the Welsh brothers and their employees onto them for the purpose of demolishing the
building, must be taken to have invited Mr. Ferguson in for that purpose. It is more difficult to
hold *1560  that Mr. Ferguson was, within the meaning of the subsection, using the premises
for the purpose of demolishing the building, but, assuming that he was, the question remains
whether the absence of reasonable safety which resulted in the accident arose out of his use of
the premises. The absence of safety arose directly out of the system of work adopted by the
Welsh brothers, and the nature of the instructions given by them to Mr. Ferguson as to how he
should go about performing his work for them. It would be going a very long way to hold that
an occupier of premises is liable to the employee of an independent contractor engaged to do
work on the premises in respect of dangers arising not from the physical state of the premises
but from an unsafe system of work adopted by the contractor. In this connection, however, it
is necessary to consider section 2(4)(b) of the Act, which provides:

“where damage is caused to a visitor by a danger due to the faulty execution of any
work of construction, maintenance or repair by an independent contractor employed
by the occupier, the occupier is not to be treated without more as answerable for the
danger if in all the circumstances he had acted reasonably in entrusting the work to
an independent contractor and had taken such steps (if any) as he reasonably ought
in order to satisfy himself that the contractor was competent and that the work had
been properly done.”

The enactment is designed to afford some protection from liability to an occupier who has
engaged an independent contractor who has executed the work in a faulty manner. It is to be
observed that it does not specifically refer to demolition, but a broad and purposive
interpretation may properly lead to the conclusion that demolition is embraced by the word
“construction.” Further the pluperfect tense employed in the last words of the paragraph “the
work had been properly done” might suggest that there is in contemplation only the situation
26/12/2019 Delivery | Westlaw India Page  9

where the work has been completed, but has been done in such a way that there exists a
danger related to the state of the premises. That would, however, in my opinion, be an unduly
strict construction, and there is no good reason for narrowing the protection afforded so as not
to cover liability from dangers created by a negligent act or omission by the contractor in the
course of his work on the premises. It cannot have been intended not to cover, for example,
dangers to visitors from falling masonry or other objects brought about by the negligence of
the contractor. It may therefore be inferred that an occupier might, in certain circumstances,
be liable for something done or omitted to be done on his premises by an independent
contractor if he did not take reasonable steps to satisfy himself that the contractor was
competent and that the work was being properly done. It would not ordinarily be reasonable to
expect an occupier of premises having engaged a contractor whom he has reasonable grounds
for regarding as competent, to supervise the contractor's activities in order to ensure that he
was discharging his duty to his employees to observe a safe system of work. In reasonable
steps to satisfy himself that the contractor was competent and that the work was being
properly done.

It would not ordinarily be reasonable to expect an occupier of premises having engaged a

contractor whom he has reasonable grounds for regarding as competent, to supervise the
contractor's activities in order to ensure that he was discharging his duty to his employees to
observe a safe system of work. In special circumstances, on the other hand, where the
occupier knows or has reason to suspect that the contractor is using an unsafe system of
work, it might well be reasonable for the occupier to take steps to see that the system was
made safe.

The crux of the present case therefore, is whether the council knew or had reason to suspect
that Mr. Spence, in contravention of the terms of his contract, was bringing in cowboy
operators who would proceed to *1561  demolish the building in a thoroughly unsafe way.
The thrust of the affidavit evidence admitted by the Court of Appeal was that Mr. Spence had
long been in the habit of sub-contracting his demolition work to persons who proceeded to
execute it by the unsafe method of working from the bottom up. If the evidence went the
length of indicating that the council knew or ought to have known that this was Mr. Spence's
usual practice, there would be much to be said for the view that they should be liable to Mr.
Ferguson. No responsible council should countenance the unsafe working methods of cowboy
operators. It should be clearly foreseeable that such methods exposed the employees of such
operators to very serious dangers. It is entirely reasonable that a council occupying premises
where demolition work is to be executed should take steps to see that the work is carried out
by reputable and careful contractors. Here, however, the council did contract with Mr. Spence
subject to the condition that sub-contracting without their consent was prohibited. The fresh
evidence sought to be adduced by Mr. Ferguson does not go the length of supporting any
inference that the council or their responsible officers knew or ought to have known that Mr.
Spence was likely to contravene this prohibition. The evidence related largely to the late sixties
and early seventies, before the respondent council came into existence. It is common
knowledge that the local authorities which came into existence as a result of the reorganisation
of 1974 did not by any means correspond precisely to those which existed previously, and also
that there were far-reaching transfers of personnel and considerable confusion. While some of
Mr. Spence's earlier demolition activities may have been carried out for Spennymoor Urban
District Council, it does not follow that the present respondents had any reason to suspect his
competence or honesty at the material time. I conclude that the evidence in question would
not be likely to have an important effect on the result of the action so far as directed against
the council.

Counsel for Mr. Ferguson relied also on certain documents which after the hearing before the
Court of Appeal became available from the office of the council's architects. At the trial there
26/12/2019 Delivery | Westlaw India Page  10

was evidence that on the second day of the demolition activity two persons, who it was
suggested were officials of the council, appeared on the site and complained about the raising
of dust which was damaging new paintwork in adjoining houses under construction. This
evidence was sought to be used for the purpose of establishing knowledge on the part of the
council of the manner in which the building was being demolished. The documents in question
consisted of two works progress reports by a clerk of works employed by the architects, one of
which made reference to nuisance from dust caused by the demolition, and a letter from the
architects to the council, dated 23 July 1976, complaining about the same matter. The
documents tend to identify the clerk of works and one of the architects as being the persons
who visited the site and complained about dust, but do not otherwise carry matters further.
The architects were independent contractors and there is no evidence that they or anyone in
their employment informed the council, before the accident, about anything which they
observed in the course of the site visit.

In my opinion, Mr. Ferguson has not demonstrated sufficient grounds for reopening the case
against the council so far as based on the Act of 1957. His alternative case, based on the
ordinary common law duty of *1562  care does not raise any considerations of a different
nature to those applicable to the statutory case.

It was argued for the council that the fresh evidence about Mr. Spence's earlier demolition
activities could with reasonable diligence have been discovered before the trial, and should
have been because it was directly relevant to Mr. Ferguson's pleaded case that the council
negligently employed an incompetent contractor, a case which was dropped at the conclusion
of the trial. Accordingly, the evidence should on that ground not be admitted as against the
council. I consider that there is much force in that submission, but the Court of Appeal having
in the exercise of their discretion decided to admit the evidence as against Mr. Spence, on the
basis that there had been no lack of due diligence in discovering it, I would not be disposed to
take a different view in relation to the case against the council.

My Lords, for these reasons I would dismiss the appeal.

Lord Brandon of Oakbrook

My Lords, I have had the advantage of reading in draft the speech prepared by my noble and
learned friend, Lord Keith of Kinkel. I agree with it, and for the reasons which he gives I would
dismiss the appeal.

Lord Griffiths

My Lords, I have had the advantage of reading in draft the speech prepared by my noble and
learned friend, Lord Keith of Kinkel. I agree that the appeal should be dismissed for the
reasons which he has given.

Lord Oliver of Aylmerton

My Lords, I have had the advantage of reading in draft the speech prepared by my noble and
learned friend, Lord Keith of Kinkel. It is possible to envisage circumstances in which an
occupier of property engaging the services of an independent contractor to carry out work on
his premises may, as a result of his state of knowledge and opportunities of supervision,
render himself liable to an employee of the contractor who is injured as a result of the
defective system of work adopted by the employer. But I incline to think that his liability in
such case would be rather that of joint tortfeasor than of an occupier. Whether or not that is
so, however, the additional evidence in the instant case is quite insufficient to lead to the
conclusion that such a claim against the respondent council could be supported. I agree,
therefore, that the appeal should be dismissed for the reasons which my noble and learned
26/12/2019 Delivery | Westlaw India Page  11

friend has given.

Lord Goff of Chieveley

My Lords, the question on this appeal is whether, in the light of the fresh evidence now
available which persuaded the Court of Appeal to order a new trial as against Mr. Spence, a
new trial should likewise be ordered as against the respondent council. The principal
submission advanced on behalf of Mr. Ferguson was that such a new trial should be ordered,
on the basis that the council might be held liable under the Occupiers' Liability Act 1957 . Like
my noble and learned friend, Lord Keith of Kinkel, I am unable to accept this submission,
though I have reached that conclusion by a rather different route.

I, for myself, can see no difficulty in law in reaching a conclusion that Mr. Ferguson may have
been a lawful visitor in relation to Mr.

*1563

Spence but a trespasser in relation to the council. Once it is accepted that two persons may be
in occupation of the same land, it seems to me inevitable that on certain facts such a
conclusion may have to be reached. If it be the case that one only of such occupiers authorises
a third person to come onto the land, then plainly the third person is, vis-a-vis that occupier, a
lawful visitor. But he may not be a lawful visitor vis-a-vis the other occupier. Whether he is so
or not must, in my opinion, depend upon the question whether the occupier who authorised
him to enter had authority, actual (express or implied) or ostensible, from the other occupier
to allow the third party onto the land. If he had, then the third party will be, vis-a-vis that
other occupier, a lawful visitor; if he had not, then the third party will be, vis-a-vis that other
occupier, a trespasser. No doubt, in the ordinary circumstances of life, the occupier who allows
the third party to come onto the land will frequently have implied or ostensible authority so to
do on behalf of the other occupier — as will, I think, usually be the case when the first
occupier is a builder, in occupation of a building site with the authority of the building owner,
who authorises a servant or independent contractor to come onto the site. But this may not
always be so, as for example where the third party is aware that the building owner has
expressly forbidden the builder to allow him on the site. These problems have, as I see it, to
be solved by the application of the ordinary principles of agency law.

I am content to assume, for the purposes of the present appeal, that there is evidence capable
of establishing that Mr. Spence did have the ostensible authority of the council to allow the
Welsh brothers (and, through them, Mr. Ferguson) onto the land. Even so, in my judgment Mr.
Ferguson's action against the council must fail because I cannot see how the council could be
held liable to him, in particular under the Occupiers' Liability Act 1957.

On the assumption that Mr. Ferguson was the lawful visitor of the council on the land, the
council owed to him the common duty of care, i.e. a duty “to take such care as in all the
circumstances of the case is reasonable to see that the visitor will be reasonably safe in using
the premises for the purposes for which he is invited or permitted by the occupier to be there:”
see section 2(2) of the Act. I have emphasised the words “in using the premises” because it
seems to me that the key to the problem in the present case lies in those words. I can see no
basis, even on the evidence now available, for holding that Mr. Ferguson's injury arose from
any breach by the council of that duty. There can, no doubt, be cases in which an independent
contractor does work on premises which result in such premises becoming unsafe for a lawful
visitor coming upon them, as when a brick falls from a building under repair onto the head of a
postman delivering the mail. In such circumstances the occupier may be held liable to the
postman, though in considering whether he is in breach of the common duty of care there
would have to be considered, inter alia, the circumstances specified in section 2(4)(b) of the
Act. But if I ask myself, in relation to the facts of the present case, whether it can be said that
26/12/2019 Delivery | Westlaw India Page  12

Mr. Ferguson's injury arose from a failure by the council to take reasonable care to see that
persons in his position would be reasonably safe in using the premises for the relevant
purposes, the answer must, I think, be no. There is no question as, I see it, of Mr. Ferguson's
injury arising from any such failure; for it arose not from his use of the premises but from the
*1564  manner in which he carried out his work on the premises. For this simple reason, I do
not consider that the Occupiers' Liability Act 1957 has anything to do with the present case.

I wish to add that I do not, with all respect, subscribe to the opinion that the mere fact that an
occupier may know or have reason to suspect that the contractor carrying out work on his
building may be using an unsafe system of work can of itself be enough to impose upon him a
liability under the Occupiers' Liability Act 1957, or indeed in negligence at common law, to an
employee of the contractor who is thereby injured, even if the effect of using that unsafe
system is to render the premises unsafe and thereby to cause the injury to the employee. I
have only to think of the ordinary householder who calls in an electrician; and the electrician
sends in a man who, using an unsafe system established by his employer, creates a danger in
the premises which results in his suffering injury from burns. I cannot see that, in ordinary
circumstances, the householder should be held liable under the Occupiers' Liability Act 1957,
or even in negligence, for failing to tell the man how he should be doing his work. I recognise
that there may be special circumstances which may render another person liable to the injured
man together with his employer, as when they are, for some reason, joint tortfeasors; but
such a situation appears to me to be quite different.

On the evidence in the present case, I can see no special circumstances by reason of which the
council, as occupier, might be held liable to Mr. Ferguson under the Act of 1957. Nor can I see
any other basis upon which the council might be held liable to him. In these circumstances,
though I feel great sympathy for Mr. Ferguson, I agree that his appeal must be dismissed.

J. A. G.

Representation

Solicitors: Dibb & Clegg Benyon & Co. for V. Bradley Stephens & McDonald, Blaydon-on-Tyne;
Berrymans for Crutes, Newcastle-upon- Tyne.

Appeal dismissed. Costs of the respondents incurred from 23 March 1987 to be paid out of the
Legal Aid Fund, pursuant to section 13 of the Legal Aid Act 1974. Order to be suspended for four
weeks to allow for objection by the Law Society if so wish.

______________________________________________________________________________________________

1.   Occupiers' Liability Act 1957, s. 2(4)(b) : post, p. 1560C–D.

(c) Incorporated Council of Law Reporting for England & Wales

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