EXTRA HAZARDOUS ACTIVITIES AND
RESPONSIBILITY FOR INDEPENDENT CONTRACTORS
William Norris QC, 39 Essex Street
INTRODUCTION AND SUMMARY
This article considers whether and, if so, to what extent a principal may be held liable
for the negligence of an independent contractor in relation to what has been called “extra
hazardous activities”1.
Particularly, I shall consider
(i)
whether English Courts should still recognise “extra hazardous activities” as
a special category in respect of which the principal cannot avoid or delegate
responsibility, and
(ii)
if so, the kind of activities which might (or might not) be characterised as
“extra hazardous” at the present time.
In doing so, I am revisiting an issue addressed by Professor Ewan McKendrick in an
article in Modern Law Review of 6th November 1990 and which arose directly in Rhodia
Consumer Specialities Ltd v Berk Chemicals Ltd and Others2. That was a case tried by
Douglas Brown J earlier this year but which settled during the course of closing speeches and
therefore the Judge was not asked to rule on any of the issues that we shall discuss3.
I begin by looking at the facts and legal issues arising in that litigation.
1
2
3
A category of activity best known from the decision of the Court of Appeal in Honeywill &
Stein v Larkin Bros [1934] 1 KB 191.
This was Part 2 of a case which had already been to the House of Lords sub nom Albright &
Wilson UK Ltd v Biachem Ltd and Others [2002] UKHL 37.
William Norris QC and Andrew Phillips (of Crown Office Chambers) instructed by Vizards
Wyeth, acted for Biachem, a Part 20 Defendant in that action. I gratefully acknowledge my
debt to AP for his help during the long history of this case and in the preparation of the legal
submissions which formed an important resource for this article.
1
THE FACTS OF THE CASE
Albright & Wilson (now called Rhodia but hereafter referred to as “A&W”) ran a
substantial chemical works at Avonmouth. They bought in chemicals from outside suppliers.
In September 1996 they placed an order for 23 metric tonnes of sodium chlorite from Berk
and an order for a similar quantity of epichlorohydrin from Biachem. 23 metric tonnes
constituted the contents of one load for a single road tanker. Both deliveries were to be made
on 3rd October 1996.
Berk acquired its consignment of sodium chlorite from an Italian company, Caffaro,
which instructed a Belgian transport company, Huktra, to make the delivery. Coincidentally,
that was the same company instructed by Biachem to deliver its consignment of
epichlorohydrin.
Huktra subcontracted the transportation of the consignment of sodium chlorite and of
the consignment of epichlorohydrin to an English firm, Stevens Transport.
Huktra mistakenly instructed Stevens to place Biachem’s delivery note (for
epichlorohydrin) with the tanker that in fact contained Berk/Caffaro’s consignment of sodium
chlorite. Stevens’ driver therefore arrived at Avonmouth on the morning of 3rd October 1996
with what was in fact a consignment of sodium chlorite but handed over Biachem’s delivery
note identifying the contents as epichlorohydrin.
Because it was thought to be Biachem’s delivery of epichlorohydrin, A&W directed
the tanker to be unloaded into storage tanks that already contained epichlorohydrin. The
unintended mixture resulted in what the scientists called an exothermic reaction. In ordinary
language, there was a very big bang indeed.
Because Huktra had realised their error and managed to telephone A&W whilst the
delivery was being unloaded, the consequences were not as appalling as might otherwise have
been the case. Nevertheless, the losses resulting from the explosion (mostly property damage
and business interruption but some personal injury claims) were estimated to be in the region
of £12 million.
2
A&W’s CONTRACT ACTION
A&W began an action in contract against Biachem and Berk alleging that the delivery
constituted defective performance by both parties. In a nutshell, Biachem was in breach for
delivering the wrong material and Berk was in breach because the paperwork accompanying
the delivery failed to identify/describe it properly.
On the trial of a preliminary issue, Eady J and the Court of Appeal found in A&W’s
favour.
The House of Lords, however, decided that the act of delivery could, in law,
constitute only performance by a single party and that it was necessary to decide which of the
two parties was responsible4. It held that what was decisive of that issue was the nature of the
material being delivered rather than what those involved in making or accepting delivery
thought the material was or how it was described5. In reaching those conclusions the House
of Lords was only deciding the preliminary issue of which contract was being performed.
A&W had brought no parallel claim in tort against Berk and Biachem. During the course of
the trial before Douglas Brown J, it was explained that there were two reasons for that
strategy. First, A&W wished to avoid any argument that they might be partly responsible for
their own loss6. Secondly, it was explained that there were concerns that Berk/ Biachem
might be able to rely on the principles governing responsibility for independent contractors.
THE ISSUE OF CAUSATION AND THE TORT ACTION
Having obtained a finding that Berk was responsible for contractual performance and
that it was in breach of contract, A&W sought to obtain judgement against Berk and to pursue
associated tort actions against the hauliers (Huktra NV) and subhauliers (Stevens).
Berk defended the action on the issue of causation contending that notwithstanding its
breach of contract, the real cause of the explosion and the consequential losses was A&W’s
4
5
6
Predictably, this was exactly what Berk and Biachem had been arguing throughout. Equally
predictably, each had contended that performance was by the other.
The House of Lords rejected A&W’s submission that what was important/decisive was the
fact that the delivery “purported “ to be made on behalf of Biachem.
The concept of contributory negligence having no application in contract.
3
own gross negligence in relation to the procedures that existed for accepting these chemicals
and in how those procedures were implemented by the personnel on the day7.
There were various Part 20 claims. Berk brought a Part 20 claim against Caffaro8.
However, Berk also brought Biachem back into the action as a Part 20 defendant on the basis
that A&W could have pursued Biachem successfully in tort so that it (Berk) was entitled to
contribution from Biachem pursuant to the provisions of the Civil Liability (Contribution) Act
1978.
BERK’S CLAIM AGAINST BIACHEM: BIACHEM’S DEFENCE IN SUMMARY
Berk claimed that Biachem was vicariously responsible for
(a)
Huktra’s negligent mistake on 2nd October when Huktra told Stevens to use
the Biachem delivery note for what was in fact Berk’s delivery of sodium
chlorite.
(b)
The negligence of Huktra and Stevens in making the delivery with the wrong
paperwork on 3rd October.
With regard to the claim in relation to the negligent mistakes of 2nd October, Biachem
argued that
(i)
at the time Huktra made its mistake it was acting for Berk rather than
Biachem;
(ii)
alternatively, Huktra was not acting as the agent of either Berk or Biachem in
the legal sense at that time;
(iii)
at that stage of the process Huktra in any case owed no actionable duty of
care in dealing with paperwork which was only incidental to the principal
obligation of delivery;
7
8
An issue that would have given rise to an extensive and interesting legal and factual debate but
which is outside the scope of the present article.
The issues in that claim have nothing to do with the subject of this article.
4
(iv)
it could not be liable for the negligence of an independent contractor and that
the activities upon which Huktra/Stevens were engaged were not extra
hazardous.
As regards 3rd October, Biachem argued that
(i)
the House of Lords’ judgement was decisive of who did what for whom on
3rd October;
(ii)
alternatively, Biachem could not be liable for the act of its independent
contractors.
It is only the independent contractor/extra hazardous activities issue which we
address in this article. It should be noted that at no stage of the litigation was it seriously
suggested that Huktra and Stevens were not apparently responsible and competent
independent contractors.
PRINCIPAL AND AGENT: THE GENERAL RULE
There is no general rule of law which imposes liability upon a principal for the tort of
his agent.
Insofar as the law recognises any liability in such cases it is only in long
established and narrowly defined activities.
There is ample authority in the textbooks to substantiate that proposition.
In Clerk and Lindsell (18th Edition) at paragraph 5-72 it is
“... submitted ... that with the exception of cases of fraud, there are no special rules in
the law of tort peculiar to ‘principal and agent’.”
Similarly, Professor Atiyah in “Vicarious Liability in the Law of Tort” (page 110)
says
5
“It seems, however, very hard either to explain or justify a general principle of
liability for agents in the face of the clear and universally accepted general principle
of no-liability for independent contractors. The law seems to have managed perfectly
well so far without imposing any general liability for agents and it is difficult to
believe that the practical advantage of imposing such liability would outweigh the
difficulties which would inevitably follow from doing so.”
Bowstead and Reynolds on Agency at Article 92:8-177 say that:
“(2)
A principal is liable for loss or injury caused by the tort of his agent, whether
or not his servant, in the following cases:
(a)
the wrongful act was specifically instigated, authorised or ratified by the
principal;
(b)
if the wrongful act amounts to a breach by the principal of a duty personal to
himself, liability for non performance or non observance of which cannot be
avoided by delegation to another;
(c)
(perhaps) in the case of a statement made in the course of representing the
principal made within the actual or apparent authority of the agent: and for
such a statement the principal may be liable notwithstanding that it was made
for the benefit of the agent alone and not for that of the principal."
In Salmond on Torts (at paragraph 21.3 - page 434) the rule is stated thus:
“... When the agent is an independent contractor, his employer is not, in general,
answerable for the torts either of the contractor himself or of his servants. But when
the agent is a servant, his employer will answer for all torts committed in the course
of the employment, whether or not the employer has obtained any benefits thereby.
It is sometimes said there may be vicarious liability for the torts of agents, and the
cases in which car owners have been held liable for the negligence of drivers who
could not be described as servants in any normal sense of that term certainly support
this view. But the main reason why this view cannot be accepted is that it would
6
entail every independent contractor was an agent. In any event, both the House of
Lords9 and the Court of Appeal10have asserted that the long established difference
between the liability for the acts of a servant and the liability for the acts of an agent
has not been abrogated by social changes in the fields of car ownership and
industrial relations.
It is for Parliament and not for the Courts to change the
fundamental principles of the common law.”
A similar view is taken in Winfield and Jolowicz on Tort (16th Edition 2002 – at
20.19):
“...It has been said on high authority that, in principle, the law governing vicarious
liability for servants and agents ... depends upon the question ‘Was the servant or
agent acting on behalf of and within the scope of the authority conferred by the
master or principal.
The answer will often differ simply because the authority of a servant is usually more
general. Whatever the validity of this in the field of economic torts or for matters
such as fraud, it can hardly be true for liability for accidents, since it is clearly
established that the principal is not liable (except in certain isolated instances) for
accidents caused by the negligence of his independent contractors performing the
tasks entrusted to them ...”
PRINCIPAL’S RESPONSIBILITY FOR THE TORTS OF HIS AGENT: THE
RECOGNISED EXCEPTIONS
In his earlier article, Professor McKendrick said (at page 780) that English law is
“now firmly committed to the principle that vicarious liability is dependent upon the
commission of a tort by an employee in the course of his employment. Occasionally
one can find cases which are difficult to reconcile with the proposition that, for
liability to accrue, the employee must commit a tort but these are anomalous cases
decided on pragmatic grounds and they cannot be used as a foundation for the
9
10
Morgans v Launchbury [1973] A.C. 127.
Heaton’s Transport v T.G.W.G. [1972] 3 WLR 73 (not considered in H.L.).
7
argument that all vicarious liability cases should henceforth be treated as cases of
primary liability”.
It fair to say that there are probably three types of case in which vicarious liability for
the torts in which a principal’s vicarious liability for the torts of his agent have been
established. Those are
(i)
cases in which the owner of a car asks a friend to drive it for him: Morgans v
Launchbury [1973] AC 127 ;
(ii)
trade disputes cases: Heaton’s Transport v T.G.W.U. [1973] A.C. 15;
(iii)
the fraud cases discussed in Clerk & Lindsell at paragraph 5-72.
The anomaly in respect of the car cases is explained by and must be understood in the
context of the history of compulsory motor insurance11. Trades disputes cases are explicable
as a matter of public policy which developed in order to provide an effective means of dealing
with industrial unrest. They cannot be - and have not been - taken to lay down general
principles widely applicable to all cases whereunder a principal may be said to be liable for
his agent. The fraud cases are explicable upon the basis set out at paragraph 5.72 of Clerk and
Lindsell.
RESPONSIBILITY FOR INDEPENDENT CONTRACTORS: THE GENERAL RULE
In D & F Estates Ltd v Church Commissioners [1989] A.C. 177 Lord Bridge said this
at p 208:
“It is trite law that the employer of an independent contractor is, in general, not
liable for the negligence or other torts committed by the contractor in the course of
the execution of work.
To this general rule there are certain well-established
exceptions or apparent exceptions .... But it has rightly been said that the so-called
exceptions
11
This is also the opinion of Winfield and Jolowicz - see p 727.
8
‘Are not true exceptions (at least so far as the theoretical nature of the
employer’s liability is concerned) for they are dependent upon a finding that
the employer is, himself, in breach of some duty which he personally owes to
the plaintiff. The liability is thus not truly a vicarious liability and is to be
distinguished from the vicarious liability of a master for his servant:’
See Clerk & Lindsell on Torts, 15th ed. (1982) para. 3-37, p 185.”
The principle has been recently restated by the Court of Appeal in similar terms in
Bottomley v Todmorden CC [2003] EWCA Civ 1575. At paragraph 20, Brooke LJ approved
the principle that Simon J had identified at first instance:
“(i)
A person who engages an independent contractor to carry out work is not
liable for the negligence of the independent contractor provided that person exercised
reasonable care to engage a reasonably competent contractor.”
RECOGNISED EXCEPTIONS TO THE GENERAL RULE
In Bottomley, also at paragraph 20, Brooke LJ identified and approved a third
principle:
“(iii)
Some activities are regarded by the law as being particularly hazardous or
“extra-hazardous”. In such cases, a duty is imposed on the employer to see that care
is taken; and the employer is vicariously liable for any negligence of the independent
contractor.”
A useful summary of the recognised exceptions to the general principle can be found
in the judgement of the Court of Appeal in Alcock v Wraith [59 B.L.R. 20 and [1991]
E.G.C.S. 137. Neill LJ said:
“…. It is therefore necessary to consider some of the exceptions to the general
principle12. The main exceptions to the principle fall into the following categories:
12
“That where someone employed as an independent contractor to do work on his behalf is not
in the ordinary way responsible for any tort committed by the contractor in the course of the
execution of the work."
9
(a)
Cases where the employer is under some statutory duty which he
cannot delegate.
(b)
Cases involving the withdrawal of support from neighbouring land.
(c)
Cases involving the escape of fire.
(d)
Cases involving the escape of substances, such as explosives, which
have been brought onto the land and which are likely to do damage if
they escape; liability will attach under the rule in Rylands v Fletcher
(1868) LR3 HL 33013.
(e)
Cases involving operations on the highway which may cause danger
to persons using the highway.
(f)
Cases involving non-delegable duties of an employer for the safety of
his employees.
(g)
Cases involving extra-hazardous acts.”
EXTRA HAZARDOUS ACTIVITIES: HONEYWILL & STEIN V LARKIN BROS
This exceptional category of extra hazardous activities depends on the decision of the
Court of Appeal in Honeywill. The principle is probably best expressed as follows: an
employer who instructs an independent contractor to carry out an operation which is
inherently exceptionally dangerous owes a personal duty to those who might be injured by it
which cannot be delegated. Slessor LJ (at page 197) referred to “acts which, in their very
nature involve in the eyes of the law special danger to others”.
13
Note that the scope of liability under this rule was reviewed by the House of Lords in Transco
plc v Stockport MBC – Opinions delivered 19th November 2003.
10
Despite academic14 and judicial15 misgivings, Honeywill continues to be treated as
binding at least in the Court of Appeal. For example, it was expressly recognised as such by
Brooke LJ in Bottomley (see particularly paragraph 31).
A CATEGORY OF NON-DELEGABLE DUTY?
As was explained by Professor McKendrick in his article (at pages 772-773) extra
hazardous activities, the highway cases and employers’ liability cases are probably best
regarded as examples of non-delegable duties - that is, as cases in which the principal is
directly liable rather than being liable only because of vicarious liability.
Despite the respect accorded to Honeywill by Brooke LJ in Bottomley, it is noticeable
that the English Courts do not ordinarily rely directly upon Honeywill.
Instead, Honeywill is usually circumvented upon the basis that the defendant is held
to have been under a non-delegable duty. A very good example is Salsbury v Woodland 1971
QB 324 in which Widgery LJ referred to “extra hazardous acts” as constituting a class of case
in which there is a “direct and primary duty to see that care is taken” (see page 338). In
Bottomley, for example, Brooke LJ (at paragraphs 49-50) recognised that these days, it “may
well be” that the House of Lords “would prefer to avoid subtle distinctions” between what is
and what is not extra hazardous but would prefer to concentrate on whether a duty existed
(and was non-delegable) and on the standard of care.
That was certainly the approach of Widgery LJ in Salsbury v Woodland. At pages
336-337 he held that:
“It is trite law that an employer who employs an independent contractor is not
vicariously responsible for the negligence of that contractor. He is not able to
control the way in which the independent contractor does the work, and the vicarious
obligation of a master for the negligence of his servant does not arise under the
14
15
As to which see, for example, Professor McKendrick’s earlier article.
Particularly by the High Court of Australia in Stevens v Brodribb Sawmilling Co Proprietary
Ltd [1985-1986 - 160 C.L.R. 16] where the High Court of Australia held that the ““notion that
a principal is liable for the negligence of an independent contractor on the basis that the
activities he was engaged to perform were extra-hazardous has no place in Australian law” Headnote at p 17.
11
relationship of employer and independent contractor.
I think that it is entirely
accepted that in those cases - and there are some - in which an employer has been
held liable for injury done by the negligence of an independent contractor are in truth
cases where the employer owes a direct duty to the person injured, a duty which he
cannot delegate to the contractor on his behalf. The whole question here is whether
the occupier is to be judged by the general rule, which would result in no liability, or
whether he comes within one of the somewhat special exceptions - cases in which a
direct duty to see that care is taken rests upon the employer throughout the
operation.”
Widgery LJ went on to adopt and approve a statement of principle from Salmond on
Torts in the following terms:
“ ... The mere fact that the work entrusted to the contractor is of a character which
may cause damage to others unless precautions are taken is not sufficient to impose
liability on the employer. There are few operations entrusted to an agent which are
not capable, if due precautions are not observed, of being sources of danger and
mischief to others; and if the principal was responsible for this reason alone, the
distinction between servants and independent contractors would be practically
eliminated from the law.”
At page 338, Widgery LJ continued as follows:
“In truth, according to the authorities, there are a number of well-determined classes
of case in which this direct and primary duty upon an employer to see that care is
taken exists. Two such classes are directly relevant for consideration in the present
case.
The first class considers what have sometimes been described as "extra-
hazardous acts” - acts commissioned by an employer which are so hazardous in their
character that the law has thought it proper to impose this direct obligation on the
employer to see that care is taken. An example of such a case is Honeywill & Stein v
Larkin. Other cases which one can find in the books are cases where the activity
commissioned by the employer is the keeping of dangerous things within the rule in
Rylands v Fletcher and where liability is not dependent on negligence at all.
12
I do not propose to add to the wealth of authority on this topic by attempting further
to define the meaning of “extra-hazardous acts”; but I am confident that the act
commissioned in this present case16 cannot come within that category. The act
commissioned in the present case, if done with ordinary elementary caution by skilled
men, presented no hazard to anyone at all.
It may be noted that the category of extra-hazardous activities referred to in
Honeywill & Stein v Larkin Bros is recognised in the United States albeit the
Restatement (2d) Torts, Vol 3 (1977), s519 replaces the word “ultra hazardous”
which was initially used with “abnormally dangerous”.”
It should, however, be borne in mind that the English Courts have demonstrated a
continuing unwillingness to extend the scope of the employer’s own primary duty in relation
to the activities of his sub-contractors or to impose vicarious responsibility in relation to those
activities.
This has been demonstrated recently by the decision of the Court of Appeal in
Naylor v Payling [2004] EWCA Civ 560.
IS HONEYWILL IN ANY CASE INCONSISTENT WITH HIGHER AUTHORITY?
Whilst Honeywill was affirmed, for example, in Salsbury v Woodland and in
Bottomley, the doctrine of non-delegable responsibility for extra hazardous activities has
never received the blessing of the House of Lords. Indeed, it is arguably inconsistent with at
least four of its decisions.
In Hughes v Percival (1883) 8 App. Cas. At p 446 Lord Blackburn restricted liability
for the actions of an independent contractor to circumstances where a duty exists on the part
of the person employing the contractor which cannot be discharged by the employment of
someone else. That is an earlier exposition of concept of the “non-delegable duty” to which
Widgery LJ was referring at p 337 of Salsbury v Woodland.
In Daniel v Directors of the Metropolitan Railway Co (1871) 5 LRHL 45, the
Claimant had been injured when a heavy iron girder fell onto a train in which he was
16
One defendant engaged another to remove a large hawthorn tree in his front garden which
adjoined the highway. The contractor did so carelessly, telephone wires were broken and fell
into the road causing an obstruction.
13
travelling. The girder was being installed by contractors engaged by the City of London
adjacent to the line.
As the High Court of Australia observed in Stevens v Brodribb
Sawmilling Co Proprietary Ltd [1985-1986 - 160 C.L.R. 16]17, the House of Lords in Daniel
held that the respondents were not liable for the negligence of their independent contractor in
the performance of what “on any view was an inherently dangerous operation of slinging iron
girders over a railway line” (per Wilson J/Dawson J at p 42 of Stevens).
Instead, the House proceeded on the basis that it did not matter whether the
contractors had been engaged directly by the railway company or by the City. At page 61
Lord Westbury said:
“... the ordinary business of life could not go on if we had not a right to rely upon
things being properly done when we have committed and entrusted them to persons
whose duty it is to do things of that nature, and who are selected for the purpose with
prudence and care, as being experienced in the matter, and are held responsible for
the execution of the work. My Lords, undoubtedly it would cause confusion in all
things if you were to say that the man who employs others for the execution of such a
work, or the man who is a party to the employment, has no right whatever to believe
that the thing will be done carefully and well, having selected, with all prudence,
proper persons to perform the work, but that he is still under an obligation to do that
which, to him, in many cases, would be impossible - namely, to interpose from time to
time in order to ascertain that that was done correctly and properly, the business of
doing which he had rightfully and properly committed to other persons.”
In Rainham Chemical Works v Belvedere Fish Guano [1921] 2 AC 465 an explosion
occurred at a plant manufacturing explosives. The plant was operated by a company set up by
two individuals who had obtained a contract to supply explosives to the Minister of
Munitions. It is hard to imagine a more hazardous activity. The company was held liable
under the principles propounded in Rylands v Fletcher and one of the questions for the House
of Lords was whether the individuals were also liable. Lord Buckmaster said this at p 477:
17
The High Court of Australia in that case held that the “notion that a principal is liable for the
negligence of an independent contractor on the basis that the activities he was engaged to
perform were extra-hazardous has no place in Australian law” - Headnote at p 17.
14
“The circumstances in which a contractor is liable for a subcontractor’s act may not
be capable of a definition which can be applied to test every variety of circumstance,
but I do not think any circumstances establishing liability under this head are proved
to exist in the present case.
Having contracted for the manufacture of munitions, which in itself involves the
possibility of explosion, it does not appear to me that liability could not be displaced
by the introduction of an independent contractor. If, for example, there had been no
restriction placed upon Messrs Feldman and Partridge’s power to assign or enter
into the contracts, and they had contracted with a well known firm of munition
makers to execute the order in whole or in part upon their premises, it would, I think,
be difficult to say that an explosion that took place upon those works would be an
explosion for which Messrs Feldman and Partridge would have been responsible,
and, for the purpose of testing liability, it does not appear to me that the restriction to
which they were subject is a relevant matter.”
After considering cases in which employers of independent contractors had been
found liable for the acts of those contractors, Lord Parmoor says this at p 490:
“A common factor in all these cases was some antecedent duty towards the plaintiff
which could not be displaced by the employment of an independent contractor, but I
agree with Younger LJ that the appellants individually owed no duty to the
respondents in respect of the care of the DNP after deposit, assuming that the
company were independent contractors, and that by reasonable care on their behalf
danger might have been avoided.”
In Read v J Lyons & Co Ltd [1947] AC 156 the plaintiff inspector of munitions was
injured in an explosion at a munitions factory. Again, this operation might seem very well
described by the words “extra hazardous”.
She was unable to show negligence and sought to recover in respect of her personal
injuries on the basis of the doctrine in Rylands v Fletcher. Her central argument was that
there should be strict liability in respect of dangerous activities such as the manufacture of
munitions. The ratio of the decision of the House of Lords was that for there to be liability
under Rylands v Fletcher principles there had to be an escape from the defendant’s land as
15
well as non-natural use of that land (see Lord MacMillan at p 173-174). The plaintiff
therefore failed. The importance of the case must lie in the House of Lords’ rejection of the
idea that there should be strict liability in respect of very dangerous activities.
Lord
MacMillan (at page 172) said that:
“In truth it is a matter of degree. Every activity in which man engages is fraught with
some possible element of danger to others. Experience shows that even from acts
apparently innocuous injury to others may result. The more dangerous the act the
greater is the care that must be taken in performing it. This relates itself to the
principle in the modern law of tort that liability exists only for consequences which a
reasonable man would have foreseen. One who engages in obviously dangerous
operations must be taken to know that if he does not take special precautions injury to
others may very well result. In my opinion it will be impractical to frame a legal
classification of things as things dangerous and things not dangerous, attaching
absolute liability in the case of the former but not in the case of the latter. In a
progressive world things which at one time were reckoned highly dangerous come to
be regarded as reasonably safe.
The first experimental flight of aviators was
certainly dangerous but we are now assured that travel by air is little if at all more
dangerous than a railway journey. Accordingly I am unable to accept the proposition
that in law the manufacturer of high explosive shells is a dangerous operation which
imposes on the manufacturer an absolute liability for any personal injuries which
may be sustained in consequence of his operations. Strict liability, if you will, is
imposed upon him in the sense that he must exercise a high degree of care, but that is
all. The sound view, in my opinion, is that the law in all cases exacts a degree of care
commensurate with the risk created. It was suggested that some operations are so
intrinsically dangerous that no degree of care however scrupulous can prevent
occurrence of accidents and that those who choose for their own ends to carry on
such operations ought to be held to do so at their peril. If this was so, many
industries would have a serious liability imposed upon them. Should it be thought
that this is a reasonable liability to impose in the public interests it is for Parliament
so to enact. In my opinion it is not the present law of England.”
16
Further, Lord Simons (at p 181) said that
“... I would reject the idea that, if a man carries on a so-called ultra hazardous
activity on his premises, the line must be drawn so as to bring him within the limit of
strict liability for its consequences to all men everywhere. On the contrary, I would
say that his obligation to those lawfully his premises is to be ultra cautious in
carrying on his ultra hazardous activity but that it will be the task of the injured
person to show that the defendant owed to him a duty of care and did not fulfil it ...”
It was upon that line of authority that the High Court of Australia relied when
declining to follow Honeywill in its decision in Stevens v Brodribb Sawmilling Company 160
CLR 160.
It remains to be seen whether the House of Lords would follow that lead.
Nevertheless, it does appear clear that there will at the very least be no judicial enthusiasm for
expanding this category. If it survives, we expect it to be defined narrowly and restrictively.
WHAT IS MEANT BY “EXTRA HAZARDOUS” IN THIS CONTEXT?
In Honeywill, Slessor LJ (at p 200) articulated the general principle governing “extra
hazardous or dangerous operations” thus;
“Even of these, it may be predicated that if carefully and skillfully performed, no
harm will follow; as instances of such operations may be given those of removing
support from adjoining houses, doing dangerous work on the highway, or creating
fire or explosion: hence it may be said, in one sense, that such operations are not
necessarily attended with risk. But the rule of liability for independent contractors’
acts attaches to these operations, because they are inherently dangerous and hence
are done at principal employers’ peril.”
We have already seen that the issue of liability in Rainham Chemicals or Read v
Lyons did not depend on the fact that the manufacture of explosives was inherently
dangerous.
In Honeywill, on the other hand, the independent contractors were taking
photographs of the interior of the theatre by using magnesium flash powder. That was
regarded as extra hazardous.
17
The difficulties of definition are only too apparent. As Slessor LJ made clear in
Honeywill, an act which is otherwise extra hazardous does not cease to be so simply because
it will not cause damage if carefully and skillfully performed. He therefore concentrated upon
“acts which, in their very nature, involve in the eyes of the law special danger to others; of
such acts the causing of fire and explosion are obvious and established instances”. But this
was not a sufficient basis for liability in Rainham Chemicals or Read v Lyons.
In The Pass of Ballater [1942] P.112 at page 117 Langton J spoke of implements or
substances which were “dangerous in themselves”. It is doubtful whether this illuminates the
principle or the meaning of the words any further.
It may fairly be concluded that the difficulties of definition provide a very good
explanation why so few decided cases have depended upon their qualification as cases of
“extra hazardous activities”.
But what of the instant case? Should the movement of
dangerous chemicals be so described?
Although the matter was never judicially determined, the view of the authors is that it
would be very difficult to characterise transportation activities, even of dangerous chemicals,
as inherently hazardous. Were it otherwise, that description would probably also be applicable
to familiar activities such as the transport of fuel oil or petroleum which would be a surprising
outcome.
Simply because these are activities which if, inexpertly performed, could result in
major danger does not make the activities themselves inherently hazardous. The actual
process of working with highly volatile chemicals18 might be a different matter. What is
important, we suggest, is to look at the job for which the independent contractor has been
made responsible and to consider whether the accident demonstrates that the activity was
unusually dangerous or, rather, whether it simply results from the careless execution of
something that could ordinarily be done reasonably safely.
18
As a matter of evidence, epichlorohydrin was not a particularly dangerous chemical to handle
notwithstanding that it constituted a hazardous (toxic) load for the purposes of the national and
international transport regulations. On the facts of the case, the real hazard arose once the site
operator used it as an ingredient of a lethal cocktail.
18
On that basis, one would say that the transportation of chemicals and, a fortiori, the
use of paperwork incidental to that transportation, was not inherently hazardous.
CONCLUSIONS
It is clear that there is no judicial enthusiasm for extending the categories on which a
party is strictly liable for operations of high risk. And where such liability is imposed, it is
usually upon the basis that the party undertook a non-delegable duty.
This trend is clearly apparent in the opinions of the House of Lords in Cambridge
Water v Eastern Counties [1994] 2 AC 264. At p 305, Lord Goff said:
“Like the judge in the present case, I incline to the opinion that, as a general rule, it
is more appropriate for strict liability in respect of operations of high risk to be
imposed by Parliament, than by the courts. If such liability is imposed by statute, the
relevant activities can be identified, and those concerned can know where they stand.
Furthermore, statute can where appropriate lay down precise criteria establishing
the incidence and scope of such liability.
It is of particular relevance that the present case is concerned with environmental
pollution. The protection and preservation of the environment is….of crucial
importance….public bodies, national and international, are taking significant steps
towards the establishment of legislation….But it does not follow from these
developments that a common law principle, such as the rule in Rylands v Fletcher,
should be developed or rendered more strict to provide for liability in respect of such
pollution. On the contrary, given that so much well-informed and carefully structured
legislation19 is now being put in place for this purpose, there is less need for the
courts to develop a common law principle to achieve the same end, and indeed it may
well be undesirable that they should do so.”
19
It is clear from Marcic v Thames Water [2003] 3 WLR 163 that the Courts are reluctant to
impose or extend common law principles of liability where there already exists a satisfactory
regulatory regime.
19
Naylor v Payling [2004] EWCA Civ 560 and A and B v Ministry of Defence [2004]
EWCA Civ 641 similarly demonstrate how there needs to be a special reason of policy before
the Courts will impose a non-delegable duty.
“Extra hazardous activities” as a discrete category may well not survive close analysis
should the issue come before the House of Lords although they did decline to follow the
Australian example20 and treat the rule in Rylands v Fletcher as entirely absorbed within the
law of negligence when the point was argued in Transco plc v Stockport MBC21.
Whatever the House of Lords does, it is the view of the author that the scope of this
category is now so limited that it is very unlikely that any future English case will be decided
solely upon the basis that the activity in question can be described as “extra hazardous”. It is
very much more likely that the Courts will prefer to base their decisions upon concepts of
direct responsibility for occupancy or activity duties or on those arising out of a relationship
of employer and employee.
20
21
The decision of the majority in the High Court of Australia in Bernie Port Authority v General
Jones Property (1994) 120 ALR 42
Notwithstanding that there appears to have been no reported case in the last 50 years where a
claimant has succeeded solely under the rule in Rylands v Fletcher.
20