Legal
A claimant slipped upon a combination of petals and water outside the flower shop on a station concourse. This was owned and occupied by Chiltern. The duty of care applying to the owner of the shop (Lark Stock) had to be measured in the context of the large numbers of people passing the shop everyday. Lark Stock had been engaged in a purely reactive system in which steps were only taken when something was brought to its attention. That was considered to be insufficient and a more proactive system was required. However, Chiltern, as the occupier of the location, had not been in breach of duty, as it had discharged its common duty of care because it had supervised the activities of Lark Stock and had recommended that warnings should be given to members of the public by Lark Stock about the intermittent slippery conditions and spillages. It could also rely upon a contractual indemnity. The occupier is also not responsible
for the default of the contractor if the work was of a particularly technical nature. However, this may not be the case if the work could easily have been done by the occupier itself or if the occupier could have checked whether it had been done properly, for example misplaced warning signs/ bunting or failure to ensure that the contractor had in place and implemented a satisfactory system for post- works clean up. Where the occupier has engaged a subcontractor to
carry out potentially hazardous activities, it is important to ascertain that the contractor is insured. In deciding whether a contractor is competent, the court may consider the nature of the task that the contractor in question was required to perform. Insurance is relevant for the purpose of considering its competence. Occupiers should check there are proper safety plans, risk assessments and methods of work in place. There is a higher duty upon the site occupier to check that all insurance and paperwork is in order if they are undertaking particularly hazardous operations posing a risk to the public.
Travel services contractors A Toc may engage the services of other transport companies when services are interrupted by planned or emergency closures. If a member of the public suffers an accident while completing their journey on a replacement bus, the question arises whether the Toc would carry some share of the liability? Such journeys for domestic travel are covered by the National Rail Conditions of Carriage. Condition 7 states that the train
PAGE 26 DECEMBER 2012
company’s responsibilities are that the train company whose train the passenger has the right to use, or which has agreed to provide the passenger with any goods or services, is responsible for providing the goods or services it has agreed to provide. The train company or its agents are not responsible for ‘any losses which occur while travelling on any other train company’s trains’. The train operator, or its agent, is
required to help a passenger if a claim is to be made in connection with a journey by passing the claim onto the appropriate company or other body and the conditions apply to passengers travelling by the temporary use of road vehicles. Under Condition 63, claims against
a train company in respect of personal injury, loss or damage, should be notified initially to the train company or alternatively, to the Claims Allocation and Handling Agreement (CAHA) registrar. Claimants may also pursue a claim for breach of contract or implied conditions
Summary of principles • Ordinarily, a Toc will not have liability in negligence for the acts/omissions of an independent contractor
• The Occupiers Liability Act 1957 provides an independent contractor defence only if reasonable steps were taken to ensure the contractor was competent and the work was properly done.
In practice this means ensuring compliance with basic health and safety criteria (risk assessments, method statements, for example); ensuring the contractor is insured against its own fault; and checking that wide indemnity (specifically including liability of death and injury and costs) is in place
• Just because a contractor is working within the Toc’s premises, does not relieve the Toc of its duty in occupiers’ liability legislation for obvious hazards, so the usual inspection regimes should be maintained • Exposure to tortious liability is more limited for contractors who provide travel services because ‘shared occupancy’ risks do not apply and the Toc has no control over the driver. However, contractual liability may prove a problem because liability may attach if the service does not meet reasonable standards, irrespective of the question of foreseeability or the blameworthiness of the Toc. Therefore, it is essential to ensure insurance is in
attaching to the purchase of the rail ticket or under common law negligence. In those cases, the Toc should attempt to obtain a full indemnity/contribution from the contractor, particularly in circumstances where a road traffic accident has occurred and a bus or taxi, being operated by or under the control of the sub contractor, was driven by its own employee. The Toc would not be liable for the
negligent acts or omissions of the driver, as they are not the driver’s employer and have no control over him or her. However, the Toc could potentially be exposed if the contractor had no insurance. In that situation, the train operator may be criticised for failing to select a competent contractor, particularly if the contractor has subsequently ceased to operate. Furthermore the Motor Insurers’
Bureau may force pursuit of the Toc to avoid its own liability. Similar arguments might be raised
if the Toc had knowledge of a previous course of negligent driving or where they were aware that a contractor had repair and maintenance issues, if causative of the accident.
place, to cover liability for both the contractor and the Toc.
Practical steps
It is important to ensure that an appropriate and competent contractor is selected. There should be a clear selection process that examines the contractor’s operating procedures, health and safety procedures, risk assessment, and existence of relevant insurance. It is imperative to take reasonable care to supervise and check that work is done safely and ascertain that the contractor has works properly cordoned off, warnings in place and is not endangering the public. Tocs should pass on accident reports to the contractor concerned as soon as possible – often the injured party reports not to the contractor, but to the Toc. Given the prevalence of CCTV it is vital to take steps to secure relevant footage to assist in defending claims. By putting into place these good working practices, Tocs should be placed in a better position when faced by claims involving their sub- contractors.
Chris Price is a partner at Langleys LLP
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