Gwilliam v West Hertfordshire Hospitals NHS Trust
Court of Appeal
Citations:  EWCA Civ 1041;  QB 443;  3 WLR 1425;  PIQR P7; (2002) 99(38) LSG 34;  NPC 101.
The first defendant was a hospital who organised a fund-raising fair. They hired the second defendant to set up a ‘splat wall’ for the fair. Visitors would jump off a trampoline and stick themselves to the Velcro-covered wall. The first defendant agreed to pay the second defendant £100 to staff the splat wall. The second defendant told them this would allow them to take advantage of their public liability insurance. The first defendant was unaware that the second defendant’s insurance expired four days before the fair.
The second defendant was negligent in setting up the splat wall. As a result, the claimant was injured while using it. The second defendant and the claimant settled for £5000. The claimant sued the first defendant in negligence for the difference between this and the amount they would have gotten if the second defendant had been insured. They argued that the first defendant owed visitors a duty to exercise reasonable care in selecting independent contractors for the fair. They argued that this included ensuring that contractors had insurance or warning visitors if there was no insurance.
- Do occupiers owe visitors a duty to check the insurance position of independent contractors?
- If occupiers owe such a duty, how do they fulfil it?
The Court of Appeal held in favour of the first defendant. The first defendant owed the claimant a duty to see that she was reasonably safe in using the premises, under the Occupiers Liability Act 1957. On the facts, this included a duty to ask the second defendant about their insurance position. However, the first defendant fulfilled this duty by asking the second defendant about their insurance position. It was not reasonable to require them to go further and inspect the insurance policy document to check the validity dates.
This Case is Authority For…
Even where s 2(4)(b) of the Occupiers Liability Act 1957 is inapplicable (because the contractor is not engaging in construction, maintenance or repair), occupiers still owe visitors a duty to keep them reasonably safe from the contractor’s activities on the land. A similar test applies: the occupier must take reasonable steps to satisfy itself that the contractor is appropriate and competent.
In some cases, such as where the activity is risky and the defendant invites members of the general public to take part, the contractor’s insurance position is relevant to whether they are appropriate and competent. However, it will not normally be reasonable to expect the occupier to directly check the contractor’s insurance policy.
Sedley LJ agreed that the claim should fail. However, he disagreed with the other judges that this was because the first defendant had fulfilled their duty of care. Rather, Sedley LJ thought that the occupier’s duty to ensure that visitors are safe does not include a duty to check that contractors are insured.