Biffa Waste Services Ltd & Anor v Maschinenfabrik Ernst Hese GmbH & Ors

Facts

Biffa engaged Maschinenfabrik Ernst Hese GmbH (MEH) to design and construct plant at a waste recycling facility. Part of the work was carried out by a subcontractor engaged in the chain below MEH, whose workers carried out welding. Their negligence in carrying out the hot work caused a fire which caused extensive damage to the facility. Biffa sought to make MEH liable for the fire on the basis, among others, that the welding was an extra-hazardous activity giving rise to a non-delegable duty, so that MEH was answerable for the negligence of those carrying it out.

History

The trial judge in the Technology and Construction Court held MEH liable, applying the extra-hazardous activities doctrine. MEH appealed.

Issue

Whether the employer of an independent contractor is liable for the negligence of that contractor in carrying out hot work such as welding, under the doctrine of non-delegable duty for extra-hazardous activities derived from Honeywill and Stein Ltd v Larkin Bros Ltd [1934] 1 KB 191.

Held

Appeal allowed on this issue. MEH was not liable for the fire under the extra-hazardous activities doctrine.

Ratio

• The general rule is that a person is not liable for the negligence of an independent contractor; the exception for extra-hazardous activities established in Honeywill and Stein v Larkin Bros is anomalous and is confined to activities which are exceptionally dangerous whatever precautions are taken, so that it does not apply to work, such as welding, which is safe if carried out with reasonable care.

Key reasoning

• Honeywill concerned the taking of flash photographs with magnesium powder inside a cinema, an activity regarded at the time as inherently dangerous; the principle has been widely criticised as anomalous.
• Since it is in tension with the general rule that there is no liability for the negligence of independent contractors, and since the policy concerns it addresses can be met by ordinary negligence principles, the doctrine should be restricted to its narrowest scope rather than extended.
• Many activities carry a risk of serious harm if done negligently; that does not make them extra-hazardous, otherwise the exception would swallow the rule; the relevant question is whether the activity is exceptionally dangerous even when carried out with all reasonable precautions.
• Welding near combustible material is dangerous only if reasonable precautions are not taken, so it fell outside the exception.

Where it fits in the module

On non-delegable duties, Biffa marks the outer limit of one of the traditional categories in which an employer is liable for the negligence of independent contractors. It is read with Woodland, decided later, to show the courts structuring non-delegable duties around assumption of responsibility to vulnerable claimants rather than the danger of the activity, and it feeds into the debate about whether non-delegable duty is a coherent concept or a disguised form of strict or vicarious liability.

Criticisms

• The test of activities dangerous whatever precautions are taken leaves very little room for the doctrine, raising the question whether it should simply be abolished rather than nominally retained.
• The line between exceptionally dangerous activities and those merely dangerous if done carelessly is difficult to draw and invites inconsistent results.
• It may be argued that those who commission high-risk work should bear the cost of harm it causes to others, which the narrowing of the doctrine leaves to negligence and insurance.