The Court of Appeal decided on 7 November 2003, in the case of Bottomley (Michael John) v Secretary & Members of Todmorden Cricket Club, that a cricket club which allowed a dangerous firework display to take place on its land owed a duty of care to a person who was lawfully on the land assisting the contractors conducting the display. The club, together with the contractors, was liable to that person when he was injured in an explosion because the contractors and the club had failed to take ordinary precautions.

The facts

The second and third defendants, Mark Hindle and David Read, were conducting a pyrotechnic display as members of a two-man stunt team called Chaos Encounter during the cricket club’s annual fundraising event at its premises in Burnley Road, Todmorden. Mr Hindle and Mr Read had invited the claimant, Mark Bottomley, along to assist them. He did so voluntarily.

The club’s action group, a sub-committee of the club which had a general responsibility for fundraising activities, was in charge of the bonfire event. The committee’s relationship with Chaos Encounter had started in 1995 when Mr Read made two presentations to members of the committee. There was an issue as to what was said at these meetings about the firm’s insurance position. However, it was agreed that Mr Read produced material and photographs showing various stunts, including work for TV. On the basis of these presentations, the committee engaged Chaos Encounter to perform a flame-throwing and fire-breathing act on 3 November 1995, which culminated in the lighting of the bonfire. Chaos Encounter was paid £50 for its services.

At the same event in November 1996, Chaos Encounter performed what Mr Read described as a ‘comedy action show’ which ended with an explosion of pyrotechnics on the bonfire and Mr Hindle jumping off the bonfire on to crash mats below. The committee agreed that Chaos Encounter could perform at the same event the following year on the basis that there would be no payment other than a sum raised independently, which would go towards expenses.

Some days before the event on 7 November 1997, Mr Read approached Mr Bottomley. He explained that he was doing the show and asked Mr Bottomley whether he would be prepared to help on a voluntary basis. Mr Bottomley agreed. Although he had helped Mr Read and Mr Hindle in the past to set up one of their pyrotechnic shows and had also videoed one of them, he had no detailed experience of stunt work or pyrotechnics. Mr Hindle and Mr Read did not have public liability insurance cover.

Mr Bottomley’s task at the material time was concerned with a pair of mortars. These mortars were metal tubes set into the ground which had been filled with petrol. His job was to prime the mortars by lowering gunpowder in a plastic bag into the mortar. The charge contained an electrical igniter that could be fired remotely by applying a voltage from a car battery across the end of the attached firing cable. As he was placing a gunpowder charge into the second mortar tube its contents ignited and exploded in his face causing him severe burns and a broken arm.

The judge’s findings of fact

After hearing witness and expert evidence, Simon J made the following findings of fact:

• Mr Bottomley had no training or experience in the use of pyrotechnics.
• The pyrotechnic display was potentially very dangerous.
• The club was aware before the event that Chaos Encounter intended to perform a dramatic night-time stunt involving pyrotechnics. This was confirmed by the safety equipment and fire suit worn on the night by Mr Read.
• Chaos Encounter did not possess public liability insurance cover. It was highly unlikely that Mr Read ever told anyone at the club that it did.
• Mr Read was entirely unaware of the Health and Safety Regulations governing the use of fireworks.
• The safety equipment provided to Mr Bottomley was inadequate. There were no goggles and no gloves.

There was no formal contract between the club and Chaos Encounter and the club had no clear idea of what Chaos Encounter was going to do on 7 November. Chaos Encounter was simply left to get on with its display. Mr Walters, the secretary of the committee, told the judge that he had no idea that Mr Bottomley was involved in the display and that if he had known he would not have allowed him anywhere near it. The judge considered that this was relevant to the extent of the club’s ignorance as to what was going on.

Mr Bottomley’s claim

Mr Bottomley’s case against the club on liability was put in three ways:

• That it had failed to take reasonable care to select a reasonably competent stunt operator.
• That it had failed to ascertain whether Mr Hindle and Mr Read were insured. This was described as a freestanding duty and as evidence of a failure to select a reasonably competent display operator.
• That it was vicariously liable for Mr Hindle and Mr Read’s negligence. Although they were independent contractors, it had employed them to perform an ‘extra-hazardous’ activity on the premises.

Mr Bottomley’s advisers valued his claim between £250,000 and £300,000.

The judge’s conclusions on the law

With regard to the issue of vicarious liability, Simon J analysed the effect of five cases: Honeywell & Stein Ltd v Larkin Brothers Ltd [1934]; Salsbury v Woodland [1970]; Ferguson v Welsh [1987]; Fairchild v Glenhaven Funeral Services Ltd [2002]; and Gwilliam v West Hertfordshire Hospital NHS Trust [2002].

From these cases he drew the following principles:

• A person who engages an independent contractor to carry out work is not liable for the negligence of that independent contractor provided that person exercised reasonable care to engage a reasonably competent contractor.
• An occupier of the land does not owe a duty, either under the Occupiers’ Liability Act 1957 or common law, to a servant or agent of an independent contractor who is performing an activity on its land, where the servant or agent is injured as a result of the way in which the work has been carried out.
• Some activities are regarded by the law as being particularly hazardous or ‘extra-hazardous’. In such cases a duty is imposed on the employer to see that care is taken and the employer is vicariously liable for any negligence of the independent contractor.

Simon J considered that a pyrotechnic display for the entertainment of a crowd plainly fell into the category of ‘extra-hazardous’ activities. It was not necessary to decide whether the employer’s liability in respect of such activities extended to injury to the independent contractor’s employees. The rule applied to a person who was not employed by the independent contractor and who came onto the employer’s land pursuant to a general invitation. Consequently, the club was vicariously liable for the negligence of Mr Hindle and Mr Read.

On the second proposition, Simon J considered that he was bound by the Court of Appeal’s decision in Fairchild v Glenhaven which decided that there was no freestanding duty of care.

The judge also decided that if the club’s duty in the present case was limited to the exercise of reasonable care in the choice of a reasonably competent independent contractor, it had failed to exercise such care. The nature of the activity which it knew was going to be carried out required particular care in the choice of contractor. Although some thought had been given before Chaos Encounter was engaged for the first time, no proper or sufficient checks had been carried out. Such checks would have revealed that Chaos Encounter was inexperienced and largely ignorant of basic safety requirements for the discharge of pyrotechnics and that the firm had no public liability insurance. The existence of insurance cover was of very considerable relevance to Chaos Encounter’s experience, reliability and general suitability to carry out the pyrotechnic display.

The arguments on appeal

The club challenged the judge’s conclusions on the following grounds:

• That the principles laid down by the Court of Appeal in the decision of Honeywell v Larkin did not survive the enactment of the Occupiers’ Liability Act 1957.
• That even if those principles still remained good law, an occupier of land did not owe any relevant duty to the agent of an independent contractor who came onto the land for their principal’s purposes.
• That the judge should not, on the evidence, have found that the club failed to take reasonable care in its selection of a suitable contractor.
• That the judge should not have held that the club owed Mr Bottomley any relevant duty of care in and about this selection.

Brooke LJ gave the principal judgment in the Court of Appeal. He disposed of the first argument swiftly by referring to his judgment in the case of Fairchild v Glenhaven where he had drawn a clear distinction between the occupancy duties and the activity duties of an occupier. He determined that the Occupiers’ Liability Act 1957 was concerned only to replace the old common law rules relating to the occupancy duties of an occupier. Therefore, the 1957 Act did nothing to weaken the effect of the decision in Honeywell v Larkin, which was concerned with an occupier’s activity duty.

The issue of whether or not the club had failed to take reasonable care in its selection of a suitable contractor required consideration of the evidence put before Simon J. In Brooke LJ’s view, there was ample evidence to justify the judge’s conclusion on this issue. If the club had taken reasonable care to enquire into Chaos Encounter’s credentials it would have found that they were largely unaware of the basic safety requirements needed for an event of the kind, and that they would not have permitted the event to take place if they had.

A relevant duty of care

The final question for determination was whether or not the club owed Mr Bottomley any relevant duty of care. The club argued that Mr Bottomley was in quite a different position to the people who had come along for this fund raising event because he was properly to be regarded as an agent of the independent contractors who were providing this dangerous entertainment.

The judge’s conclusions

Brooke J concluded that, on the facts of the present case, the club ought to have taken reasonable care in its selection of a suitable ‘contractor’ to conduct the dangerous pyrotechnics display on its land and that it failed to do so. The fact that Chaos Encounter performed its services for no fee made no difference. The club had allowed this dangerous event to take place on its land with no public liability insurance and no written safety plan; it neglected to take ordinary precautions to ensure that Chaos Encounter was competent in the field of pyrotechnics and insured. If the club had taken those precautions, either the event would not have taken place at all or Mr Read and Mr Hindle would have been obliged to show the club their safety plan, which would have required them to pay proper attention to Mr Bottomley’s safety.

In Brooke LJ’s judgement, this was a case where the occupier was liable because it wished something dangerous to be done on its land for its benefit. The injuries suffered by Mr Bottomley were foreseeable if there was no proper safety plan; there was the requisite proximity between the club and Mr Bottomley who was lawfully on their premises that evening; and it was fair, just and reasonable to impose liability on the club because it did not do what it ought to have done before it allowed the dangerous event to take place on its land.

Waller and Clark LJs concurred with Brooke LJ in dismissing the appeal.

Ferguson v Welsh

Brooke LJ, in the Court of Appeal, also considered the decision in Ferguson v Welsh in which a council had engaged a competent contractor to carry out demolition works on one of their sites. Unknown to the council, the contractor subcontracted the works to two brothers who carried them out in a highly dangerous manner. One of the brothers employed the claimant, Mr Ferguson, to help them, and Mr Ferguson sustained injuries when part of the building collapsed. The House of Lords decided that the council had a watertight defence under the Occupiers’ Liability Act 1957 because it had engaged a demolition contractor whom it had reasonable grounds for regarding as competent. Furthermore, there was no evidence to support any inference that the council or its responsible officers knew or ought to have known that its contractor was likely to contravene the prohibition on sub-contracting.

However, the House of Lords considered that an occupier might, in certain circumstances, be liable for something done or omitted to be done on their premises by an independent contractor if they did not take reasonable steps to satisfy themselves that the contractor was competent and that the work was being properly done, or if they actually knew through their opportunities of supervision that the independent contractor was operating a defective system.

Summary

The Court of Appeal’s decision in Bottomley can be summarised as follows:

• The Occupiers’ Liability Act 1957 only replaced the common law rules relating to the occupancy duties of an occupier and not those relating to the activity duties of an occupier.
• There was ample evidence to justify the judge’s conclusion that the club failed to take care when selecting Mr Hindle and Mr Read as contractors. The fact that Mr Hindle and Mr Read performed for no fee made no difference.
• The club did owe a duty of care to Mr Bottomley, even though he was an agent of Mr Hindle and Mr Read. The club was in breach of its duty to Mr Bottomley in allowing a dangerous event to take place on its land with no public liability insurance and no written safety plan. The injuries suffered by Mr Bottomley were foreseeable. There was the requisite proximity between the club and Mr Bottomley who was lawfully on the premises. It was reasonable to impose liability on the club because it had not prepared sufficiently for what was a dangerous event on its land.

Case references

Bottomley (Michael John) v Secretary & Members of Todmorden Cricket Club [2003] EWCA Civ 1575

Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052

Ferguson v Welsh [1987] 1 WLR 1553

Gwilliam v West Hertfordshire Hospital NHS Trust [2002] 3 WLR 1425

Honeywell & Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191

Salsbury v Woodland [1970] 1 QB 324

Louise Clark is a partner in the property litigation group at Charles Russell.

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