Clark v Hosier & Dickson Ltd.

1. LORD JUSTICE KENNEDY: This is a second defendant's appeal against a decision of Judge Catlin who, on 13 March 2003, sitting in the county court at Reading, held that the first and second defendants were equally responsible for an accident which occurred on 13 February 1997 at 25 Short Street, London SE1 in which the claimant sustained injury. It had by that time been agreed that the claimant should recover £185,000. The second defendant contends that the judge should have found that the bulk of the responsibility lay with the first defendant and should have held that the second defendant was only one third to blame.

2. In 1996 the second defendants, a touring theatre company, were carrying out improvement works at their premises at 25 Short Street. As part of that work they commissioned the claimant to create and instal gates for the entrance to the site. That commission was embodied in a commission and sale contract which was ultimately signed on 11 October 1996. The building contract by that stage had already been awarded to the first defendants who were building contractors recommended by the architect. Their contract was signed on 14 June 1996. In that contract, the architect and the quantity surveyor were identified. Part of the work to be done, pursuant to the building contract, involved preparing the front entrance and driveway and laying down the concrete bases which, in due course, would receive the gate posts. That work was subcontracted by the first defendants to Parr Construction Limited, with whom, as Mr Freeman, for the respondents, has just pointed out, the first defendants had previously worked.

3. As a result of the findings of fact made by the judge, it is now clear that at some time between mid-September 1996 and mid-October 1996, whilst excavating to make room for the concrete bases, the first defendants or their subcontractors unearthed and then reburied a mains electric cable. On 21 October 1996 the first defendants went into liquidation and both the first defendants and their subcontractors then withdrew from the site.

4. In November 1996, another contractor, Kilby and Gayford Limited, was engaged by the second defendants to complete the work which they did in about January 1997. That left the way clear for the claimant, Mr Clark, to erect the gate posts and hang the gates. When the mains cable had been found, the men who found it drew it to the attention of Mr Williams, the executive director of the theatre company (the second defendants). His background was entirely theatrical and had nothing to do with the construction industry. His recollection was that he was told by the contractor's site manager that the cable could be redirected along an identified route and concreted over. Whether the person who told him was in fact a site manager may be open to question. Mr Williams said in evidence that his initial reaction was that the matter should be referred to the London Electricity Board but, in the event, he left it to the contractors. Mr Clark, who was on site from time to time, was told about the cable. Both he and Mr Williams were informed by an employee of the contractors where it was said the cable had been relaid, namely 200 millimetres from a wall and at a depth of 250 millimetres. That information must have been passed not later than mid-October 1996 because thereafter the contractors and their subcontractors were not on site. In so far as the judge found that the information was passed in January 1997, it was apparently an error on his part.

5. The fact that the information was passed in October 1996 was of itself of some significance because it shows that the information was passed soon after the cable had been reburied. Mr Clark was reassured by the information which was given to him because he did not intend to drill to a depth of 250 millimetres in order to hang his gates. He recorded what he had been told on a sketch plan.

6. There was no dispute about what happened on the day of the accident, 13 January 1997. Mr Clark began to drill, he hit the cable, there was a roaring noise and flames shot out of the hole. Almost immediately thereafter, Mr Williams signed Mr Clark's sketch plan. On that plan was written:

"We certify that Terrence Clark was abiding by the above drawing and drilling through the foundation block installed by Hosier & Dickinson Ltd at a distance in excess of 270 mm from the side wall."

Mr Williams and Mr Pettifer also signed the plan.

7. Plainly, the cable was not where Mr Clark was led to believe it would be; it was nearer to the wall, it was not so deep and it was unprotected. He was entitled to recover against both defendants and, once the judge found that the first defendants were responsible for uncovering and relaying the cable, the only live issue at the trial was the question of how liability should be apportioned as between the defendants.

8. The second defendants contend that the judge was wrong to apportion liability equally for a number of reasons. They accept that, even when the building contractors were on site, the owners remained occupiers for the purposes of the Occupiers Liability Act 1957 and, as such, owed to Mr Clark, as a visitor, the common duty of care. They also accept that, under their contract with the claimant, the appellants were obliged to carry out preparatory site works and, by inference, to do so through contractors with reasonable skill and care. But, as to the liability of the respondents (the first defendants), the second defendants point out, first, that the contractors (the first defendants) had contractual responsibilities under the building contract made between themselves, the contractors and the appellants. That contract is set out in the specification and schedule of works, the pre-tender health and safety plan and the building agreement. There can be found a number of specific causes which required the contractors, in summary, first, to check for existing services and to decide how to deal with them; secondly, to seek the advice of the project architect if any problem should arise; thirdly, to provide proper site supervision; and, fourthly, to accept responsibility for the work of any subcontractor. For the purposes of this judgment it is unnecessary to specify the individual contractual terms, but they are identified in the appellants' skeleton argument before this court.

9. Mr McPherson, for the appellants, points out that the contractors (the respondents to this appeal) also owed a duty of care to the appellants and to any future users of the site. The respondents held themselves out as competent contractors capable of dealing safely and competently with any of the problems to which the work they undertook might give rise, such as the exposure of a main cable.

10. In dealing with the liability of the respondents, the judge said that they were negligent and in breach of duty at common law in:

(1) Failing to ascertain whether or not the cable they exposed was a live electricity cable or capable of being made live.

(2) By carrying out work connected or related to an electricity mains cable which was outside their competence.

(3) By devising an unsafe system in an attempt to protect a mains cable when they knew that drilling to fix the new gates was likely to take place in the vicinity of the hidden mains electricity cable.

(4) In all the circumstances failing to secure the position of the mains cable at a safe depth below the surface and in a safe position related to the drilling and, further, by failing to keep a precise written record of the exact position of the said electricity cable.

(5) By failing to consult with the London and Electricity Board or other suitable qualified contractor for advice as to how to deal with a mains electric cable in such a position.

Surprisingly, there is no reference there to consultation with the architect.

11. More particularly, Mr McPherson has pointed out that the list of shortcomings on the part of the respondents is incomplete because it fails to refer to the provision by the respondents or their subcontractors of inaccurate information as to where they had buried the cable. As Mr Justice Jacob pointed out during the course of argument, that omission was critical because, if accurate information had been provided, there would have been no accident. Mr McPherson further submits that, in order meet the case against them, the respondents relied only on the evidence of Mr Martin Stevens, their site agent. He had left the site in September 1996 before the cable was uncovered. His evidence did not suggest that before he left the respondents had done anything to check for existing services or to decide how to deal with them should they be uncovered.

12. After Mr Stevens left, there was no evidence that anyone on behalf of the contractors supervised the subcontractors, whose employee was clearly surprised, to some extent at least, by what he found. He should of course have contacted the architect and sought instructions. Instead he showed the cable to Mr Williams and told Mr Williams that it was not necessary to call the Electricity Board. He did not suggest sheathing the cable. He merely said he would deal with it by laying it along a defined path and concreting over it.

13. The workman who found the cable did not give evidence, but Mr Williams did. Part of his evidence reads thus:

"I was summoned by the site manager to the excavated hole. I was informed that no-one knew whether it was live or dead, and I took advice from the contractor as to how they suggested it should be dealt with.

Q. ... why did you not do something about it?

A. I asked the contractor to do something about it.

...

Q. Why did you not instruct somebody to place a shield over this cable?

A. It's not my technical competence. I asked the contractor to deal with the matter. I asked the contractor what they would do, and that is what they advised me to do. I asked also whether I should call London Electricity and they proposed this as the sort of solution that they would frequently follow.

Q. What was the solution they suggested?

A. To fix the cable in a path, a defined path."

14. Mr Stevens, who had been the site agent, accepted that if he had discovered the cable he would have notified the architect and would have expected the architect to instruct him to make it safe. The appellants therefore contend that the primary responsibility of the accident which befell the claimant was that of the respondents.

15. Mr Williams can be criticised because, at a time when he was to some extent disenchanted with the contractors, he was informed of the discovery of the cable and did not himself inform the Electricity Board or the architect. In relation to the appellants, the judge said that they were negligent and in breach of the common law duty of care in the following ways:

"1. When notified by the First Defendants of the existence of a mains electricity cable in an area where they knew drilling was to take place to fix the gates to the premises they failed to notify the London and Electricity Board of the existence of such a cable and failed to take advice from a person or body competent to give such advice as to what work was required to protect such a cable from the actions of a person unaware of its existence and position.

2. In all of the circumstances failed to notify and take appropriate advice from the Architect supervising the Contract.

3. Allowing the First Defendant to devise the method of protecting the cable which they knew or ought to have known as unsafe and in all of the circumstances potentially dangerous.

4. Failed to inspect or cause to be inspected this additional work carried out by the First Defendant.

5. Unreasonably relied on advice from the First Defendants who they knew or ought to have known were not competent to give such advice on electrical matters.

6. Failed further by producing a diagram or otherwise to give precise measurements to the Claimant when they knew that the Claimant was to drill in the vicinity of the buried mains electricity cable."

16. The criticism made at (3) does seem to suggest a degree of expertise on the part of the second defendants which, in the light of the evidence, is surprising. The criticism made at (5) is founded, it seems, on the general discontent which Mr Williams had begun to feel as to the activities of the contractors by the time that the cable was discovered.

17. Nevertheless, Mr McPherson does not seek to go behind those findings in totality. He simply points out that the appellants, who were not themselves undertaking any of the development work, had engaged the respondents to deal with problems of the kind which occurred and that the respondents had clearly held themselves out as competent to do so. As to the diagram all Mr Williams did was to receive information from the respondents' representative and to pass it on to the claimant. It was the respondents who, with knowledge of the reason why the information was required, had the means to ensure that it was accurate.

18. In his oral submissions to us, Mr McPherson submitted that the respondents can be criticised at each of four stages:

1. Prior to discovery of the cable they apparently did nothing to check the location of services or at least to have in position an action plan to follow when services were discovered. What was required was a procedure which required the discovery to be referred to the architect. That was all made clear in the contractual provisions to which the judge seems to have given very little weight.

2. On discovery of the cable, the clear contractual and common law duty of the respondents was to act responsibly. If the workman did not know what to do, he should at least have been aware of his own ignorance or confessed to it, and known where to go for advice -- in reality to his superiors who should then have involved the architect. It was no use telling an unqualified representative of the building owners and then reassuring that same representative that he did know how to proceed.

3. As to the burial of the cable, the same points can be made. It was wrong, it was causative of the subsequent accident and it was not in any way down to the activities of Mr Williams; he did not suggest that particular course.

4. As to the preparation of the plan, on any view the information came from the respondents or their subcontractors and it was wrong. That four-fold indictment of the respondents cannot, Mr McPherson submits, be equated with the shortcomings of the appellants who, as Mr McPherson put it, did not more than fail to pick up on the fact that the respondents had not done their job properly.

19. Mr Freeman invited our attention to observations made in other cases about the reluctance of this court to interfere with the discretion of a trial judge as to the apportionment of liability. But, where it is plain that the responsibility of two defendants is not equal, this court should not, and has not ever, hesitated to intervene. Mr Freeman submitted that the learned judge did give appropriate weight to the contract between the appellants and the respondents. It is referred to in the judgment at the beginning and briefly thereafter. He submits that the appellants themselves had contractual duties, namely, their contractual responsibilities under their contract with the claimant. When the cable was discovered, Mr Williams was informed, so at that stage the appellants were in as good a position as the respondents in terms of knowledge. They could easily have phoned the architect or the London Electricity Board and they did not do so, even though Mr Williams knew what was going to happen later at about that place. Mr Freeman submits that it was wrong for the appellants to have accepted the assurance of the contractors or their subcontractors in whom, as the appellant said, they had diminishing trust. They were warned and they should have acted upon the warning. When the time came for Mr Clark to seek information as to where the cable had been buried, they were not able to provide him with accurate information as to that because the information which they themselves had obtained was apparently inaccurate and incomplete.

20. Mr Freeman submits that the judge was right to say that both parties had equal knowledge of a potential hazard and had had it for many months. They both knew that it would have been prudent to move or disconnect the cable and, in the circumstances, the judge was entitled to decide that they were both equally to blame. The appellants, he submits, may have known more than the respondents as to what precisely it was that Mr Clark proposed to do. Therefore, they may have had a greater reason to seek accuracy as to where precisely the cable had been buried.

21. In my judgment, the apportionment of liability reached by the trial judge was plainly wrong and cannot be sustained. The reality was that the appellants, like any householder, engaged contractors to carry out a building project and engaged a project architect to whom the contractors could refer if any problem arose. What happened thereafter demonstrated not only breach of contract, hut also incompetence and negligence on the part of the contractors and their chosen subcontractors. First, they should have taken steps in advance to locate existing services and decide how to deal with them. This was not an unexpected hazard. It was something inherent in a project of this kind. If the precise position of the services could not readily be located in advance, it was all the more important that the respondents, as contractors, ensured that, when services were exposed, those who exposed them knew what to do next. That meant complying with contractual obligations to provide proper supervision and being ready to contact the architect or the service provider when the need arose.

22. Secondly, the employee who uncovered the cable purported to he able to deal with the problem safely and competently. In fact he was unable to do so. He reburied it close to the surface and failed to record precisely where it was. He thereby created the very hazard which caused the claimant's accident. It was perhaps fortuitous that he told Mr Williams what he found and what he proposed to do. Had he not done so, it is difficult to see how, at the end of the day, the appellants could have failed to obtain from the respondents a complete indemnity.

23. As Mr Williams was told at a time when he may well have realised that the respondents and their subcontractors had no adequate supervision on the site and had some misgivings as to their competence, I accept that he should have done more than he did. In reality, he should have contacted the architect or the Electricity Board or insisted that the subcontractor's employee took that step. That is why the appellants were rightly found to be negligent and in breach of the common duty of care. But their blameworthiness does not in any way match that of the respondents. In my judgment, the respondent should be held to be two-thirds responsible for the claimant's accident.

24. To that extent I would allow this appeal.

25. MR JUSTICE JACOBS: I agree.

Order: Appeal allowed on the basis recorded in Section 9 of the Appellant's Notice. Respondents to pay the appellants' costs of the appeal.