Ferguson v Welsh [1987] 1 WLR 1553

Key point

  • If an occupier had the actual, implied or ostensible authority of another occupier to give permission to enter, the entrant is a visitor vis-à-vis  both occupiers

Facts

  • District Council (D) contracted Spence for work
  • Despite an express condition on the tender that subcontracting is not permitted unless the Council gives permission, Spence hired Welsh to do the actual demolition
  • Ferguson (C), an employee of Welsh was injured due to unsafe demolition work when a wall collapsed on him
  • C sued D under the Occupier’s Liability Act 1957

Held (House of Lords)

  • D was not liable

Lord Keith

Does D owe C a common duty of care?

  • There is evidence capable of establishing Spence with ostensible authority from D invited the Welsh brothers
  • D therefore owes a common duty of care to C under the Occupiers Liability Act 1957

What should be the standard of care?

  • It is not ordinarily reasonable to expect an occupier, having engaged a contractor whom he reasonably believes to be competent, to supervise the contractor’s activities in order to ensure that he was implementing a safe work system
  • However, in special circumstances, where the occupier knows or reasonably suspects that the contractor is using an unsafe system of work, it might be reasonable for the occupier to supervise the contractor’s activities

Had D fallen below the standard?

  • Hence, the crux of the case is whether D knew or had reason to suspect that Spence was contravening his contract by bringing cowboy operators to demolish the building in an unsafe way
  • The evidence produced by C that Spence had an incompetent track record of subcontracting was related to decades before D came into existence, reorganisation in D could have prevented information on Spence from passing on

Lord Goff

Does D owe C a common duty of care?

  • An entrant can be a visitor to one occupier and a trespasser to another
  • Whether an entrant is a visitor depends on whether the occupier who authorised his entry had the actual, implied or ostensible authority of the other occupier
  • Ordinarily, the occupier who allows the third party to come on the land will have implied or ostensible authority from the other occupier, but not when the third party is aware that the building owner has expressly forbidden the builder (occupier) to allow him on the site
  • In this case Spence has ostensible authority from D to allow Welsh on the land

Had D breached his duty to C?

  • On the assumption that Ferguson was a lawful visitor of D, the D owed him a common duty of care but there is no basis of breach
  • F’s injury arose not from the use of the premises but from the manner in which he carried out his work on the premises

Commentary

  • Lord Keith and Lord Goff took two different approaches
  • Lord Keith: no liability as there was no any duty to supervise the contractor
  • Lord Goff: no liability as the danger comes from the work not use of the premises