High Court, Queen’s Bench Division: Nicol J
10 February 2014
The defendant did not owe a duty of care to the claimant after he fell from a tree suffering serious injury. The defendant had instructed a competent contractor, who the claimant worked for, to undertake work on their property.
The claimant, aged 22, together with two other colleagues had been instructed by their boss, Joe Jackman (Mr Jackman) to fell a horse chestnut tree sectionally on the defendant’s property. On 4 December 2009, the claimant climbed the tree using a rope and harness and was cutting off the branches with a chain saw, when he fell almost 50 feet to the ground. As a result, the claimant suffered a fracture dislocation at T10/T11 with a complete spinal cord injury, which rendered him permanently paraplegic. The claimant sued the defendant for negligence and under the Work at Height Regulations 2005. The preliminary issue for the court to determine was whether the defendant was liable for the claimant’s loss.
It was held, although the defendant did owe a duty of care to the claimant, as a lawful visitor to their property, under s 2(2) of the Occupiers’ Liability Act 1957 (the ‘1957 Act’), the claimant was not injured because of the state of the property but because of his activity as a tree surgeon. The defendant was not the claimant’s employer or exercising control over the work of the claimant for the Work at Height Regulations 2005 to impose any duty on the defendant.
The claimant’s case was that the defendant did owe him a relevant duty of care, when hiring Joe Jackman to take reasonable care to see that he and his work methods were competent and safe. The cases of Bottomley v Todmorden Cricket Club  EWCA Civ 1575 and Fairchild v Glenhaven Funeral Services  1 WLR 1052 were cited. The court held that tree felling is hazardous but simply not in the same league as the pyrotechnic display in Bottomley. It held that its hazardous nature is not such as to impose on the defendant a duty of care in the choice of its contractors to those contractors’ employees.
In dismissing the claimant’s claim, it was held that it was not ‘fair’ or ‘reasonable’ to impose a duty on the defendant. It was right that a failure to exercise reasonable care in the choice of an independent contractor might lead the defendant being liable to an ordinary visitor, since it could not then rely on s 2(4)(b) of the 1957 Act, however it would place a very much more onerous obligation on occupiers to extend that duty to the contractor’s employees or sub-contractors. That was because there is very much more scope for an employee to be injured than for an ordinary visitor.
Even if the defendant owed the claimant a duty of care in deciding to contract with Joe Jackman, it was not held to be in breach of that duty, in all the circumstances. The defendant had first contracted with Mr Jackman in May 2007, over the next 2½ years the defendant entered into 13 further contracts with Mr Jackman for work on over 60 trees. There had been no evidence that any of the earlier jobs gave rise to any problems.