Contractors’ liability in tort for independent sub-contractors

The Technology and Construction Court’s (TCC) decision in Wilmott Dixon Construction Ltd -v- Robert West Consulting Ltd [2016] EWHC 3291 (TCC) serves as a reminder that the Courts will only depart from the general rule, that a contractor is not liable for the negligence of (or other torts committed by) its independent sub-contractors, in exceptional circumstances.

Facts

An engineer was appointed to design the underpinning to a party wall between two terraced houses. During the works, the main contractor instructed an independent sub-contractor, who subsequently caused damage to the party wall. The main contractor alleged that the damage was caused by the engineer's defective design of the underpinning. In response, the engineer argued that the main contractor was liable for the negligent work of its independent sub-contractor on the party wall because the works were (i) undertaken in a foreseeably dangerous way and (ii) condoned by the main contractor.

The decision

The Court held that in the following exceptional circumstances, a contractor could be held to owe a non-delegable duty in respect of the acts or omissions of its independent sub-contractor:

1.  If the works were "exceptionally or unusually dangerous, no matter what precautions are taken" – the TCC held that such a definition did not extend to the works undertaken on this party wall; or
2.  Where there is a withdrawal of structural support by the owner of one property which causes damage to an adjoining property – the TCC concluded that this duty only arose between neighbouring land owners. The court found there was no basis to extend that duty to contractors who engage independent sub-contractors to carry out works.

The court emphasised that the above exceptions will be applied narrowly and should be treated as two separate and distinct concepts.

So, where, for whatever reason,  there is no contractual entitlement to bring a claim against a main contractor for its sub-contractor’s work, the law of tort is unlikely to help an employer.

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