Court of Appeal

Published November 21, 2008

Biffa Waste Services Ltd and Another v Maschinenfabrik Ernst Hese GmbH and Another

Before Lord Justice May, Lord Justice Rimer and Lord Justice Stanley Burnton

Judgment November 12, 2008

The principle which made an employer liable for the negligence of a subcontractor engaged to carry out extra-hazardous or dangerous operations was unsaisfactory and should be applied as narrowly as possible.

It should apply only where the operations concerned would be hazardous whatever precautions were taken. The principle did not apply to an activity such as welding, which was not inherently extra-hazardous when proper precautions were taken.

The Court of Appeal so held allowing an appeal from Mr Justice Ramsey in the Technology and Construction Court of the Queen’s Bench Division ([2008] EWHC 6 (TCC)) who gave judgment for the claimants, Biffa Waste Services Ltd and Biffa Leicester Ltd, and for the first defendants, Maschinenfabrik Ernst Hese GmbH, against the second defendant, Outocumpu Technology Wenmec AB, for damages to be assessed.

Mr David Allen, QC, for Outocumpu; Mr Ben Patten for Biffa.

LORD JUSTICE STANLEY BURNTON, giving the judgment of court, said the claim arose from a fire at a waste disposal depot being built by the claimants in Leicester. The fire had been caused by the negligence of welders engaged in installing a ball mill.

The first defendant was engaged to design and built the waste disposal plant. The first defendant engaged the second defendant to design the ball mill and the second defendant subcontracted the installation to a third party whose admitted negligence caused the fire.

His Lordship said the judge’s decision that the second defendant was vicariously liable for the third party’s negligence could not be sustained on the basis that it had borrowed the third party’s employees, making them what the authorities described as “employees pro hac vice”.

However, the judge had also held the second defendant liable on the basis that the third party’s activities were extra-hazardous, applying Honeywill and Stein Ltd v Larkin Brothers (London’s Commercial Photographers) Ltd ([1934] 1 KB 191). Although the subject of substantial criticism, that decision remained binding on the court.

Close examination of the authorities considered by the Court of Appeal in Honeywill showed that they did not support the ratio of the decision. The principle stated by the Court of Appeal in Honeywill was uncertain.

Much in life was inherently dangerous, even crossing the road, unless precautions were taken. Atiyah, Vicarious Liability in the Law of Torts (Butterworth 1967) (pages 371-3) had said of decisions imposing vicarious liability on a person who employed an independent contractor to do work that was inherently dangerous that they had given rise to some quite preposterous distinctions.

The principle had been abolished in Australia, but the Court of Appeal could not go that far.

In the court’s judgment, the doctrine enunciated in Honeywill was so unsatisfactory that its application should be kept as narrow as possible. It should be confined to activities which were exceptionally dangerous whatever precautions were taken.

The judge, understandably, given the unsatisfactory nature of the principle he was required to apply, had taken into account in assessing the dangerousness of the welding, factors which were not the second defendant’s responsibility, while leaving out of account factors that would and should have rendered it safe.

Solicitors: Ince & Co; Herbert Smith LLP

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