| Date | 23 May 1996 |
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| Judgment | Periquito Hotels Ltd -v- HPH Services and Others 25 March 1996; 18 |
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| The Issue | Employer's liability for the negligence of its independent contractor. |
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| Implication |
Soldering of pipe joints provides no exception to the rule that a person is not liable for negligence of his independent contractor. In any event liability for the negligence of as independent contractor is owed to third parties only. |
printThere is a well known rule of law that a person is, in general. not liable for the negligence of his independent contractor. As always this principle is subject to exceptions. One exception is that where an independent contractor is employed to do work which of its very nature involves a risk of damage to a third party, the employer will remain responsible to the third party in the event of such damage occurring. This principle was first enunciated in the 1934 case of Honeywill and Stein Limited -v- Larkin Brothers Limited where it was held that a party could not delegate the normal duty of care towards third parties where the work involved ''extra-hazardous' activities. Honeywill had completed engineering work in a cinema and engaged Larkin to take photographs of the interior. Larkin used a flashlight which involved the ignition of magnesium powder within a metal tray. The camera was placed too close to a curtain on the stage and the entire theatre caught fire. The Court of Appeal held that the taking of photographs in this way was an 'extra-hazardous' activity for which Honeywill could not delegate responsibility to the photographer, and thus remained liable to the owners of the cinema for the damage caused. The principle of 'extra-hazardous' activity was also examined in the case of Salsbury -v- Woodland in 1970. The story behind this case proves that fact is often much stranger than fiction. The owner of a house employed a tree-felling contractor to remove a large hawthorn tree standing in his front garden. Owing to the negligent manner in which the contractor removed the tree, it broke a pair of telephone wires running across the front garden as a result of which the wires fell into the road causing an obstruction. Salsbury, who was watching out of curiosity, went into the road to remove the wires when a car (the driver was to become the third defendant in the subsequent action) approached at speed. Salsbury, realising that a collision was inevitable, threw himself onto the grass verge adjoining the road but his fall caused a tumour in his spine to bleed which brought about paralysis. Salsbury sued the house owner, the tree contractor and the car driver. The Court of Appeal held that the general rule should apply; namely that the householder should not be liable for the negligence of the tree contractor who was an independent contractor. The removal of the tree was not work of an inherently dangerous nature and could not be treated as an exception to the rule within the meaning of the Honeywill doctrine. These issues have once again been examined in the case of Periquito Hotels Limited -v- H P H Services and Others. Periquito engaged a main contractor for refurbishment works in its hotel. The main contractor sub-contracted the design and installation of a central heating system to HPH who, in turn, entered into a sub-sub-contract for the plumbing works. Whilst soldering capillary joints with a blow torch, the plumber caused a fire which extensively damaged the hotel. Were HPH to be held liable for the negligent acts of its independent plumbing subcontractor? Two questions were to be asked. Firstly, was the soldering of joints in the circumstances of this case an 'extra-hazardous' activity within the meaning of the Honeywill doctrine? Richard Fernyhough QC, sitting as an Official Referee, held that he did not believe the activity to be inherently dangerous. He held that evidence showed that joints were soldered in existing buildings millions of times per year, up and down the country, and yet accidents and resulting fires were extremely rare. He considered that the work was well within the capability of the ordinary DIY enthusiast and the precautions needed to avoid fires or other damage to property were well known and universally agreed. Since these activities were not to be considered 'extra-hazardous', there could be no exception to the general rule that HPH were not liable for the acts or omissions of its independent subcontractor. Having answered this question in favour of HPH, the second question appeared academic but nonetheless opened an important insight into the Honeywill doctrine. If the activity had been judged 'extra-hazardous', and HPH could not delegate responsibility for it, to whom would this non-delegable duty be owed? Counsel for HPH argued that the rationale of the Honeywill doctrine was to protect the outside world from dangers caused by the execution of hazardous activities in circumstances where third parties have no means of protecting themselves. He argued that the circumstances of this case were quite different and that the duty should not, in principle, be owed to an employer at whose instructions the so-called hazardous activities were being carried out. Mr Fernyhough was particularly swayed by these arguments and once again held in favour of the HPH. Even if the activity in question had been considered to be 'extra-hazardous', and HPH unable to delegate responsibility for negligence, the duty owed would be to third parties whose person or property might be damaged as a result of the activity. Such a duty would not be owed to the principal employer who had instigated the activity and who was able to protect himself either by the terms of the contract made with the main contractor or by insurance.
CJ-9619
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