Despite the close proximity of the two jurisdictions, it is perhaps surprising that property liability law is not always mirrored north and south of the border. An example of this arises in relation to whether an employer is liable for the damage caused by an independent contractor to another's property.
The general rule in England and Scotland is that an employer is not liable. However, it does not follow that each jurisdiction takes the same approach in recognising the exceptions to the general rule, and this can be seen in the context of the English rules on fire spread which are not followed in Scotland.
The English approach
The rules governing fire liability in England are such that no action can be brought against a person where a fire started in their premises "accidentally." The courts have interpreted this as meaning "without negligence" and an occupier remains liable for an escape of fire whenever negligence by him or his servants or even independent contractors have permitted the escape. These issues arose in the case of Balfour v Barty King 2 WLR 84 following a fire that started as the result of the negligent use of a blow torch by an independent contractor, damaging the plaintiff's property. The use of fire had, therefore, been deliberate. The plaintiff argued that "'If negligence be shown, it matters not against whom, the fire is not accidental."
The claim succeeded. The existence of negligence by the defendant's agent was enough to set aside the operation of the Fire Prevention (Metropolis) Act 1774. Lord Goddard said: "The precise meaning to be attached to 'accidentally' has not been determined, but it is clear from these last two cited cases that where the fire is caused by negligence it is not to be regarded as accidental. Although there is a difference of opinion among eminent text writers whether at common law the liability was absolute or depended on negligence, at the present day it can safely be said that a person in whose house a fire is caused by negligence is liable if it spreads to that of his neighbour, and this is true whether the negligence is his own or that of his servant or his guest, but he is not liable if the fire is caused by a stranger. Who, then, is a stranger? Clearly a trespasser would be in that category, but if a man is liable for the negligent act of his guest, it is, indeed, difficult to see why he is not liable for the act of a contractor whom he has invited to his house to do work on it, and who does the work in a negligent manner.'
Therefore, in the context of fire spread, an employer of an independent contractor has a non-delegable duty of care where the independent contractor causes damage to the property of another when negligence can be shown.
The Scottish position
In Scotland, while there are no direct comparable fire spread cases that mirror Barty King, it can be seen that the scope of the Scottish exception is rather more limited. Indeed, it could be argued that the exception to the general rule in England would not be followed in Scotland.
The case of Stewart v Malik 2009 SC 65, which relates to structural damage as opposed to fire spread, gives an indication as to how the Scottish courts might view the liability of an employer for an independent contractor who subsequently causes negligent damage to the property of others, through the carrying out of inherently hazardous operations.
The facts of Stewart are relatively straightforward. The ground floor proprietors in a tenement instructed independent contractors to demolish a load bearing wall in their flat. The wall was removed without the construction of a central support column. There was insufficient support to the walls of the flat and this caused damage to the pursuers' property above. It was argued that the removal of the load bearing wall, and the insertion of new support beams and a central supporting column was to be properly classed as an "inherently hazardous operation," which would trigger an exception to the general rule.
At debate (a hearing on the legal basis of the claim) the defender (defendant) argued that the pursuer's (claimant's) case was irrelevant and that a distinction had to be made between operations which were inherently hazardous or particularly dangerous, and operations which could be carried out safely, but which only became dangerous or hazardous if not carried out properly by competent contractors. In the latter case, there was no personal liability on the employer. The works were not per se particularly dangerous or inherently hazardous and they only became hazardous when they were not carried out properly.
On appeal, it was held that the defender owed a duty of support to the flat above him under the Scots law of tenement. The law of tenement imposed a positive duty on the defender in carrying out works, which might affect support. The defender should have avoided endangering the pursuers' property. The duty was personal to him and could not be elided by the instruction of an independent contractor to execute the works.
Whilst the court discussed the existence of an exception to the general rule at length, they adopted a cautious approach by making reference to the law of the tenement rather than invoking the exception in respect of extra-hazardous activities. The fact they chose not to confirm the existence of an exception to the general rule has until very recently created doubt as to whether it does exist in Scots law.
The scope of the exception to the general rule was again considered in the recent case of Esso Petroleum v Scottish Ministers  CSOH 15. The pursuer contended that as a result of negligent works carried out by the defenders in relation to the construction of the M74 Completion, its property was now subject to contamination. The defenders argued that as employer, they had no liability for the acts and omissions of a competent independent subcontractor. Lord Tyre considered whether Scots law recognises an exception where the operations instructed by the employer are "inherently hazardous". He observed that the `difficulty with an "inherently hazardous operation" exception is that it is extremely unclear what it means. Any operation which might result in injury to person or property unless appropriate precautions are taken might be said to be inherently hazardous.' He held that it is `clear from Stewart v Malik that Scots law does in certain circumstances recognise an exception from the general rule that an employer is not liable for negligence of or nuisance caused by
an independent contractor. It seems to me, however, that some further basis in principle must be identified for the application of the exception than simply restricting it to cases involving interference with rights of support.' On the facts of the case, it was found that the presence of contaminants in the land had the potential to create a risk to human health. The operations were therefore categorised as inherently hazardous "as that expression is used in Scots law." The defenders, as employer of the independent contractors, were therefore not relieved of liability.
While the general rule in England and Scotland is that an employer is not liable to third parties for the fault of an independent contractor, the cases of Barty King, Stewart, and Esso Petroleum suggest that the two jurisdictions might well take different approaches in recognising the exceptions to the general rule. In the context of fire spread, an English court will hold an employer liable for the actings of an independent contractor so long as negligence can be shown. While Esso Petroleum has to a certain extent removed some of the doubt about the exception to the general rule that remained following Stewart, it has extended the scope of what might be properly categorised as "inherently hazardous." It remains doubtful that Scotland would go as far as England in this area of the law. Indeed, Esso Petroleum confirms that if there is to be an exception to the general rule it will still have to involve something more than negligence.
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