Sub-contractors ruling could have 'major impact'

Lawyers this week claimed that a court decision, which ruled that a firm was responsible for the actions of a sub-contractor, could have a 'major impact' on businesses.

Personal injury lawyer, John Davis - a partner at Irwin Mitchell - outlined the ruling, which found that a nightclub was responsible for the actions of sub-contracted bouncers who caused serious head injuries to a man after he was ejected from the premises.

He claimed the case "could have a major impact on any business which uses independent contractors."

Mr David explained: "The 39-year old man was on a Christmas night out at the time of the incident in December 1999 when he was ejected by bouncers carrying out security duties at a nightclub in Rotherham, causing injuries so severe that attending police officers did not expect the man to survive.

"The nightclub's defence was that the club was not responsible for the actions of those people not directly in its employ, as the security staff had been sub-contracted to the nightclub by an independent firm.

"However, his Honour Judge Murphy at Sheffield County Court held that the nightclub owner did have a duty to customers, which could have been delegated to an independent security company as long as the club took adequate steps to check that the supplier was suitable and competent."

The lawyer added that: "In particular the nightclub should have checked that the independent security firm had adequate insurance to cover its liabilities."

He said that that not only had the nightclub failed to carry out such checks, but that the firm involved in supplying the bouncers was trading without any insurance and was also trading illegally, having been struck off the Companies Register some two years earlier for failing to file annual returns.

John Davis from the Newcastle office of Irwin Mitchell, who represented the injured man, said: "This judgment carries significant implications with it over the issue of liability, not just for nightclubs and their sub-contracted security staff, but also for any business which uses an independent contractor to do work on their behalf.

"One of the steps the managers of the nightclub should have taken was to satisfy themselves that the independent security company was suitable and competent in their role. They should have enquired about the existence of adequate insurance to cover liability for any acts of negligence by the independent bouncers.

"Because the nightclub failed to do this, the club itself has now been held both liable and responsible for my client's injuries," he added.

Contractors and common sense
On the wider issue, Norwich Union's casualty risk manager, Phil Grace, explained how legal opinion concerning responsibility for the actions of contractors had changed considerably over the past three decades.

He told us: "Thirty years ago it was generally seen that a contractor would set up a 'virtual factory' within the main business and that they were responsible for their actions, and the main business for theirs.

"The Health and Safety at Work Act changed this by also focussing on 'harm to those not in your employment'. There have been several cases over the years highlighting these issues."

Phil Grace went on to describe an incident involving a 35 year-old farm worker who fractured his spine when he fell nine metres through a fragile skylight on a barn roof. The HSE investigation revealed that the farm worker had been instructed by his employer to assist a contractor who was replacing a broken skylight in the roof of the farm building.

It emerged that neither the contractor or the farm worker was experienced in roof work and the farm worker had not been trained how to gain access and work safely on a fragile roof. There was no working platform or other safety equipment provided, nor was there a written risk assessment or any instructions given about the safe way to perform the job.

"The farming company had assumed that the contractor knew how to carry out roof repairs safely and made no check on his experience or on the equipment being used," said Phil Grace. "No-one asked for a method statement to agree how the work would be done and the farming company did not recognise their responsibility to check that the contractor would work safely. The farming company was prosecuted."

He added: "As well as the obvious failings this case highlights the need for anyone employing contractors to take reasonable steps to ensure the work is done safely, whoever is involved. The law requires it, common sense demands it."

Norwich Union's health and safety expert added that businesses can sometimes "get confused" over what sort of checks should be carried out on contractors and/or sub-contractors.

"Aside from making sure they have adequate insurance, it's worth checking if they are members of a recognised trade body and asking a few other simple questions to satisfy yourself that they are up to the job. Turning a blind-eye is simply no longer acceptable."

More free advice
The Health and Safety Executive (HSE) has produced some useful and straightforward guidance covering the use of contractors. Its leaflet "Use of contractors, a joint responsibility" can be downloaded for free from the HSE website (see above right) and includes information on legal responsibilities as well as management and supervision.

The leaflet states: "In any client/contractor relationship, both parties will have duties under health and safety law. Similarly, if the contractor employs sub-contractors to carry out some or all of the work, all parties will have some health and safety responsibilities. The extent of the responsibilities of each party will depend on the circumstances."

It also offers advice on how to determine a contractor's competence. Questions to ask include:

> What their health and safety policies and practices are?
> What's their recent health and safety performance like (number of accidents etc)?
> What qualifications and skills they have?
> What is their selection procedure for sub-contractors?
> Do they have a safety method statement (Ask to see it)?
> What health and safety training and supervision do they provide?
> What are their arrangements for consulting their workforce?
> Do they have any independent assessment of their competence?
> Whether they or their employees hold a 'passport' in health and safety training?

Johnny Thomson