Gray v Fire Alarm Fabrication Services Ltd and others: [2006] EWCA Civ 1496

CA: May, Gage and Hallett LJJ: 10 November 2006

The third defendants, a hotel company, appointed the second defendants as the main independent contractors to undertake electrical work at their hotel, but required them to appoint a named subcontractor, the first defendant, to install a new fire alarm system and paid the main contractors a premium for supervising the subcontract. Under the subcontract all work by the subcontractor was to be agreed and carried out in close liaison with the hotel company's contracts manager, in conformity with all reasonable directions by, and in compliance with the health and safety policy of, the company. The question arose whether to route the fire alarm cables within the building or externally along an existing cable run. The latter option necessitated access to a roof owned and occupied by R plc. In the event the subcontractor decided to route the cables externally and when carrying out the work one of its employees fell through a skylight window in the roof and died from his injuries. On his widow's claim for damages, the subcontractor admitted liability and, in Part 20 proceedings, sought a contribution from the main contractors and the hotel company. At the trial of the contribution claim, unchallenged evidence was adduced that at a meeting between the three parties the subcontractor agreed to investigate the different cabling options and report back for a final decision to be taken. The judge nevertheless found that main contractors and the hotel company knew that the subcontractor proposed to route the cable externally and that no one had forbidden that course. He held that, as the main contractors in overall charge of the electrical work, the second defendants owed a duty in the circumstances to take reasonable care for the deceased's safety; and that they were in breach of that duty in failing to obtain from the subcontractor a proper method statement or risk assessment of the work to be carried out. He further held that the hotel company knew that the subcontractor contemplated work which would require access to the roof and knew that R plc did not allow anyone to go onto the roof without a permit to work; that that was a "special circumstance" which gave rise to a duty of care owed to the deceased as the subcontractor's employee; and that the company were negligent in failing to pass on their special knowledge to the subcontractor. The judge found that the breaches were causative of the accident and he ordered the second and third defendants to contribute to the damages for which the subcontractor was liable in the main action.

The second and third defendants appealed.

The Court of Appeal held:
As a general rule an independent contractor and an occupier of a building did not owe a duty of care to the employee of a subcontractor, but a duty could exist in certain circumstances. It was unnecessary and unhelpful to formulate any specific test for deciding when such a duty would arise. (Per Gage and Hallett LJJ) the judge was entitled to hold that the main contractors' right to supervise work so as to ensure it was carried out safely imposed on them a duty of care to the deceased. But on the unchallenged evidence the judge had erred in finding that the second and third defendants knew that the subcontractor had decided to route the cable externally. Accordingly, whether or not the hotel company owed the deceased a duty of care, the judge was wrong in the circumstances to find that the second and third defendants were in breach of a duty of care to the deceased.
The appeals were allowed and the contribution claim dismissed.

Appearances: Martin Porter QC (Beachcroft Wansbroughs) for the second defendant; Colin McCaul QC (DLA Piper Rudnick Gray Cary UK LLP) for the third defendant; Derek Sweeting QC (Vizards Wyeth) for the first defendant.