Gwilliam v West Hertfordshire Hospitals NHS Trust and Others: CA 24 Jul 2002

The claimant sought damages. She had been injured after the negligent erection of a stand which was known to be potentially hazardous. The contractor was uninsured, and the claimant sought damages from the Hospital which had arranged the fair in its grounds to raise funds.
Held: The hospital was liable under the Act. A splat wall, where people bounced off a trampoline to be stuck to a wall by Velcro. The hospital should have known this was dangerous. They could avoid liability by employing a reputable and competent contractor. They had requested sight of his insurance but did not know it had expired before the day. The hospital had a duty to the claimant, but had not fulfilled it. The actual claim was the difference between what had been recovered and what would have been recoverable if the contractor had been insured. The claim was therefore one of economic loss.
Lord Woolf categorised the claim not as one for economic loss but as a claim for damages for personal injury. The hospital owed the claimant a duty of care under s 2 of the Occupiers’ Liability Act 1957 to take reasonable care for her safety in using the premises to which she had been invited. That included a duty to take reasonable care to satisfy itself as to the competence of the supplier of the splat-wall. In order to discharge that duty the hospital ought to have asked him about his insurance position as evidence which was relevant to whether or not he was likely to be competent. Having asked the question, it was reasonable for the hospital to accept the supplier’s answer.
Waller LJ considered that on the particular facts of the case the occupier’s duty of care to its visitors required it to take reasonable steps to satisfy itself as to the supplier’s financial viability to meet any claim against it, whether by insurance or otherwise. He agreed with Lord Woolf that the hospital was under no duty to verify the supplier’s statement about his insurance position by requiring to see a copy of the policy.
Sedley LJ said that there was a difference in principle between harm to a person or property and insurance against inability to recover damages for such harm. The occupier owed a duty to take reasonable care to use only competent contractors, but he did not consider that the occupier owed any duty of care to its visitors to take steps to ensure that its independent contractors would be insured or otherwise able to meet any claim for damages for negligence. He expressed concern about the ramifications if the court were to impose such a duty on a public institution which invited people into its grounds. He asked rhetorically: ‘What is there, in a legal system which offers equality before the law by seeking to treat like cases alike, to contain this case in a category peculiar to its own facts? If the ambit of a public institution’s duty to its visitors embraces an obligation to check on contractors’ insurance, why will a private person whose garden is used for a local fete not equally be liable to pay a sum representing full personal injury damages to a visitor injured, perhaps badly, by the negligent supervision of a coconut shy or a greasy pole by an uninsured stall holder? Or why will a householder who fails to check that his or her builder is insured not have to pay heavy damages to a neighbour who has been unable to make a worthwhile claim against the builder when a nail through a water pipe brings the neighbour’s ceiling down or a carelessly handled blow torch burns their house down?’
Lord Woolf, Lord Chief Justice, Lord Justice Waller and Lord Justice Sedley
Times 07-Aug-2002, Gazette 03-Oct-2002, [2002] EWCA Civ 1041, [2002] 3 WLR 1425, [2003] QB 443
Bailii
Occupiers’ Liability Act 1957 2(4)(b)
England and Wales
Citing:
CitedCaparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .

Cited by:
CitedBottomley v Todmorden Cricket Club CA 7-Nov-2003
The claimant was very badly injured at a bonfire organised by the defendants. He had been asked to help with a part of the display, organised by sub-contractors, which exploded as he was filling it.
Held: The nature of the activity to be . .
CitedNaylor (T/A Mainstreet) v Payling CA 7-May-2004
The claimant was injured by a door attendant employed as an independent contractor by the defendant.
Held: The defendant’s duty in selecting an independent contractor was limited to assessing the competence of the contractor. The duties of . .
CitedGlaister and Others v Appelby-In-Westmorland Town Council CA 9-Dec-2009
The claimant was injured when at a horse fair. A loose horse kicked him causing injury. They claimed in negligence against the council for licensing the fair without ensuring that public liability insurance. The Council now appealed agaiinst a . .

These lists may be incomplete.
Updated: 08 January 2021; Ref: scu.174703