Occupiers' liability - Liability for independent contractors

Learning Outcomes

This article explains the specific rules governing an occupier's liability for dangers created by independent contractors working on their premises. After reading this article, you should understand the conditions under section 2(4)(b) of the Occupiers’ Liability Act 1957 which allow an occupier to potentially discharge their common duty of care in these circumstances. You will be able to identify the requirements regarding the reasonableness of entrusting work, selecting competent contractors, and inspecting completed work, using relevant case law examples to apply these principles to SQE1-style scenarios.

SQE1 Syllabus

For SQE1, you are required to understand how the common duty of care owed by an occupier under the Occupiers’ Liability Act 1957 applies when harm results from the work of an independent contractor. You need to be able to analyse factual scenarios and apply the statutory conditions under which an occupier might discharge this duty.

As you work through this article, focus your revision on:

• The general duty of care owed by occupiers to visitors under the Occupiers’ Liability Act 1957.
• The specific provision in section 2(4)(b) regarding independent contractors.
• The conditions an occupier must satisfy to potentially avoid liability for a contractor's faulty work:
  • Reasonableness of entrusting the work.
  • Taking reasonable steps to select a competent contractor.
  • Taking reasonable steps to inspect the work.
• How the complexity of the work affects the occupier's duty to inspect.
• Relevant case law illustrating these principles.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Under which section of the Occupiers' Liability Act 1957 are the rules regarding an occupier's liability for independent contractors primarily found?
   1. s.2(1)
   2. s.2(2)
   3. s.2(3)(b)
   4. s.2(4)(b)
2. An occupier hires an independent contractor to repair a complex piece of machinery. The contractor performs the repair negligently, causing injury to a visitor. Which factor is LEAST likely to be relevant when determining if the occupier discharged their duty?
   1. Whether the occupier checked the contractor's qualifications.
   2. Whether the occupier supervised the contractor's work minute-by-minute.
   3. Whether it was reasonable to hire a specialist contractor for this task.
   4. Whether the occupier had reason to doubt the contractor's competence.

3. True or False: If an occupier hires a competent independent contractor to perform non-technical work (e.g., clearing snow from steps), the occupier generally has no duty to check the work afterwards.

Introduction

Occupiers owe a common duty of care to ensure their visitors are reasonably safe when using the premises (Occupiers’ Liability Act 1957 (OLA 1957), s.2(2)). However, occupiers frequently employ independent contractors to carry out work, such as construction, maintenance, or repairs. What happens if a visitor is injured due to the faulty work of such a contractor? Is the occupier automatically liable, or can they pass the responsibility onto the contractor?

This article examines section 2(4)(b) of the OLA 1957, which provides specific conditions under which an occupier might discharge their duty of care in relation to dangers created by independent contractors. Understanding these conditions is essential for advising clients and answering SQE1 questions accurately.

The Duty Regarding Independent Contractors (OLA 1957, s.2(4)(b))

The general principle under the OLA 1957 is that an occupier is not liable for damage caused to a visitor by a danger resulting from the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, provided the occupier acted reasonably in all the circumstances. Section 2(4)(b) outlines three key requirements that an occupier must generally satisfy to show they acted reasonably and potentially discharge their duty.

Key Term: Independent Contractor
A self-employed individual or company engaged by the occupier to perform specific work, over whom the occupier does not generally exercise detailed day-to-day control regarding how the work is done (as distinct from an employee).

Key Term: Common Duty of Care
The duty defined in s.2(2) OLA 1957 requiring an occupier to take such care as in all the circumstances is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which they are invited or permitted to be there.

Failure to meet these conditions means the occupier may remain liable for the visitor's injuries, despite the fault lying with the contractor.

Conditions for Discharging the Duty

Section 2(4)(b) requires the occupier to demonstrate that they acted reasonably in:

1. Entrusting the work to an independent contractor: The occupier must show it was reasonable to hire an external contractor for the specific task. Generally, the more technical or specialized the work (e.g., lift maintenance, electrical rewiring), the more reasonable it is to engage a specialist contractor rather than attempting the work themselves or using unqualified staff.

2. Selecting the contractor: The occupier must have taken reasonable steps to satisfy themselves that the contractor chosen was competent to do the work. This involves more than simply accepting the contractor's word. Reasonable steps might include checking qualifications, seeking references, reviewing previous work, or confirming their membership in relevant trade associations. Failure to make reasonable enquiries into competence can prevent the occupier from discharging their duty.

   • Case Example: Bottomley v Todmorden Cricket Club [2003] - The club was liable for injuries caused by an incompetent stunt team hired for a fireworks display, partly because they failed to check if the team had safety plans or insurance.

3. Checking the work: The occupier must have taken reasonable steps (if any) to satisfy themselves that the work was properly done. The extent of this duty depends heavily on the nature of the work.

   • Technical Work: If the work is highly technical (e.g., lift mechanics, complex electrical installations), the occupier may not be expected to personally inspect or supervise it, provided they hired a seemingly competent specialist. It may be reasonable to rely on the contractor's specialized knowledge.
     • Case Example: Haseldine v Daw & Son Ltd [1941] - Occupier not liable for negligent lift repair by specialist engineers, as the work was technical and beyond the occupier's capacity to check.
   • Non-Technical Work: If the work is straightforward and any defects would be obvious to a layperson (e.g., clearing ice from steps, simple repairs), the occupier may be expected to check the work. Failure to spot an obvious danger created by the contractor could mean the occupier remains liable.
     • Case Example: Woodward v Mayor of Hastings [1945] - School governors liable when a child slipped on icy steps negligently cleared by a contractor; the danger was obvious and easily checkable.

Worked Example 1.1

Ahmed owns a small office building. He hires 'Sparky Electrics', a local firm recommended by a friend but whose qualifications he doesn't verify, to install new lighting. Sparky Electrics performs the work negligently, leaving a live wire exposed near a light switch. A visiting client receives an electric shock. Can Ahmed rely on s.2(4)(b) OLA 1957?

Answer: Likely no. While entrusting electrical work to a contractor is reasonable (Condition 1), Ahmed failed to take reasonable steps to satisfy himself that Sparky Electrics was competent (Condition 2). Relying solely on a friend's recommendation without verifying qualifications or reputation may not be considered sufficient. Therefore, Ahmed likely remains liable for the visitor's injury.

Worked Example 1.2

A hotel hires 'LiftsRUS', a nationally recognized and highly reputable lift engineering company with excellent references, to perform annual maintenance on its elevators. Due to an engineer's hidden error during maintenance, a lift malfunctions, trapping but not injuring a guest. The hotel management had no way of detecting the internal mechanical fault. Has the hotel discharged its duty under s.2(4)(b)?

Answer: Likely yes. (1) Entrusting lift maintenance to a specialist is reasonable. (2) The hotel took reasonable steps to select a competent contractor (nationally recognized, reputable, good references). (3) The work was highly technical, and the fault was hidden; it was reasonable for the hotel to rely on the specialist contractor and unreasonable to expect the hotel management to detect such a fault. The hotel likely discharged its duty regarding this danger.

Exam Warning

Do not assume that simply hiring a contractor automatically absolves the occupier of liability. All three conditions under s.2(4)(b) must be considered in light of the specific facts. Pay particular attention to the steps taken (or not taken) by the occupier to check the contractor's competence and, where appropriate, the completed work. The nature of the work (technical vs. non-technical) is often key.

Revision Tip

When analysing a problem question involving an independent contractor, structure your answer by addressing each of the three conditions in s.2(4)(b) separately. Use the case law (like Haseldine and Woodward) to illustrate how the duty to check work varies with the task's complexity.

Key Point Checklist

This article has covered the following key knowledge points:

• Occupiers owe visitors a common duty of care under OLA 1957.
• OLA 1957 s.2(4)(b) deals specifically with liability for dangers created by independent contractors carrying out construction, maintenance, or repair work.
• An occupier is generally not liable for a contractor's faulty work if the occupier acted reasonably.
• To discharge the duty, the occupier must generally show it was reasonable to entrust the work to a contractor.
• The occupier must show they took reasonable steps to ensure the contractor was competent.
• The occupier must show they took reasonable steps (if any were reasonably practicable) to check the work was done properly.
• The duty to check work is less stringent for highly technical tasks compared to simple tasks with obvious risks.
• Case law like Haseldine v Daw and Woodward v Mayor of Hastings provides guidance on the duty to inspect.

Key Terms and Concepts

• Independent Contractor
• Common Duty of Care