- within Environment topic(s)
Jamie Yates v The National Trust, High Court, 2014
Facts
The claimant was a tree surgeon, employed by an independent contractor to fell a diseased tree on National Trust property. Whilst positioned in a rope harness, he fell roughly 50 metres from the tree and was left paraplegic.
He claimed that the National Trust owed him a duty of care in negligence, in failing to choose a reasonably competent independent contractor or by failing to ensure that a safe system of work was in place. It was also alleged that because of this the Trust had breach of its duty under the Occupiers Liability Act.
Held
The court found that although the Trust did owe a duty of care to the claimant as a legal visitor to the property under the Occupiers Liability Act (OLA), this was not the relevant duty as the Claimant was not injured due to the state of the premises but because of his activity as a tree surgeon.
So, if a cowboy contractor whose gross negligence had allowed a branch to fall on a visitor, that visitor may be able to sue the Trust. But here, the claimant was injured in the course of the work that his employer was contracted to perform. Responsibility for that lay between the claimant and his employer but not the claimant and the Trust.
In respect of the common law duty of care, as the claimant was not employed by the Trust but through an independent contractor, the activity undertaken by the claimant must be particularly dangerous to create a duty of care between the Trust and the claimant. The hazardous nature of tree surgery is not sufficient to impose on the Trust a duty of care in the choice of its contractors to those contractors' employees. An imposition of a duty of care was not considered fair or reasonable in this case.
It was unfortunate that the claimant's employer did not have effective employers' liability insurance to allow the Claimant to claim against.
What can we learn?
- Authorities must still take care. The judgment suggests that if a cowboy contractor comes onto land and injures a visitor strolling through a park when tending to a tree, then the occupier could be liable under the common duty of care owed under the OLA
- There is therefore the odd situation that the worker who falls from the tree cannot gain compensation, as the claimant here, but a workmate upon whom he or she falls, can
- The land owner will owe a duty to the contractor as a visitor of the land under the OLA
- Clients instructing contractors should ensure that they carry the relevant insurance. An assessment of the competency of the contractor should also be made
- Occupiers may owe a duty of care to a contractor's employee when the activity was so hazardous that it would be fair and reasonable to impose a duty
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