Ferguson v Welsh, [1987] 1 W.L.R.

1553 (1987)

For educational use only

*1553 Ferguson v Welsh and Others
Positive/Neutral Judicial Consideration

Court
House of Lords

Judgment Date
29 October 1987

Report Citation
[1987] 1 W.L.R. 1553

House of Lords

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)

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

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Ferguson v Welsh, [1987] 1 W.L.R. 1553 (1987)

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 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 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.

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Ferguson v Welsh, [1987] 1 W.L.R. 1553 (1987)

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 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.

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Ferguson v Welsh, [1987] 1 W.L.R. 1553 (1987)

“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
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

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Ferguson v Welsh, [1987] 1 W.L.R. 1553 (1987)

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 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.”

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Ferguson v Welsh, [1987] 1 W.L.R. 1553 (1987)

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 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

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that there is in contemplation only the situation 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 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.

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Ferguson v Welsh, [1987] 1 W.L.R. 1553 (1987)

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 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

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Ferguson v Welsh, [1987] 1 W.L.R. 1553 (1987)

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 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

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Ferguson v Welsh, [1987] 1 W.L.R. 1553 (1987)

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.

Footnotes

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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