Ferguson v Welsh
| Jurisdiction | England & Wales |
| Judge | Lord Keith of Kinkel,Lord Brandon of Oakbrook,Lord Griffiths,Lord Oliver of Aylmerton,Lord Goff of Chieveley |
| Judgment Date | 29 October 1987 |
| Judgment citation (vLex) | [1987] UKHL J1029-1 |
| Date | 29 October 1987 |
| Court | House of Lords |
[1987] UKHL J1029-1
House of Lords
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Griffiths
Lord Oliver of Aylmerton
Lord Goff of Chieveley
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 carred 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 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.
…
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 £150,000. 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. 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 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 stated in the affidavits, but in one case at least it seemed likely that Mr. Spence's demolition contract...
To continue reading
Request your trial
-
Francois Maartens Heynike (Executor of the Estate of David Hill, Deceased) v (1) 00222648 Ltd (Formerly Birlec Ltd)
...of the work being done by the deceased and their duties in respect of supervision and control. Reliance was placed upon the case of Ferguson v Welsh [1987] 1 WLR 1553 and upon the observations of the Court of Appeal in the case of Fairchild v Glenhaven Funeral Services Ltd [2002] 1 WLR 1052......
-
Mohd bin Sapri v Soil-Build (Pte) Ltd and another appeal
...Rather, the accident occurred because of the unsafe work practice adopted. In the words of Lord Keith in Ferguson v Welsh & Ors [1987] 3 All ER 777 (at p 783): It would not ordinarily be reasonable to expect an occupier of premises having engaged a contractor whom he has reasonable grounds ......
-
Gray v Fire Alarm Fabrication Services Ltd and Others
...supervision over the activities of an apparently competent contractor or subcontractor. That proposition is firmly established by Ferguson v Welsh and others [1987] 1 WLR 1553 HL and has been followed in subsequent cases such as McCook v Lobo [2003] ICR 89 CA. 38 Mr Ford for FAFS wisely doe......
- Consolidated Hotels Ltd and Another; Mohd Sainudin bin Ahmad
-
The site
...him. See also Gaskin v Ollerenshaw [2010] NSWSC 791. 476 Green v Fibreglass Ltd [1958] 2 QB 245 at 249, per pearson J; Ferguson v Welsh [1987] 1 WLr 1553 at 1560, per Lord Keith, at 1564, per Lord Gof. See also EH Humphries (Norton) Ltd v Fire Alarm Fabrication Services Ltd [2006] EWCa Civ ......