Ferguson v Welsh [1987] 3 All ER 777

• Defendant, a council, contracted S to demolish a building, who in turn, contrary to their contract with Defendant (there was a clause prohibiting sub-contracting), subcontracted to W, who employed Plaintiff.

• W’s negligence led to Plaintiff being injured and he sued W and was entitled to sue S.

• However HL said he was not entitled to sue Defendant under the Occupiers Liability Act 1957. 

Lord Keith (majority approach)

• Plaintiff WAS permitted by the council to be on the premises: even though there was a clause prohibiting sub-contracting, S had been given the ostensible authority by Defendant to invite people onto the premises. Therefore a common duty of care was owed within 2(1).

• The meaning of the words making a person “reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there” within s.2(2) covered not only the state of the premises themselves but also that Defendant should take reasonable care to ensure a safe system of work.

• S.2(4)(b) deals with the liability of the owner where the defect is caused by an IC: an occupier is not liable where he acted reasonably in entrusting the work to an IC and had taken steps as he reasonably ought to satisfy himself that IC was competent and that the work had been properly done (see above).

• In this case Defendant had taken reasonable steps to satisfy himself that S was reasonably competent and so could not be liable. 

Lord Goff (same conclusion by different route)

• He disagreed with the majority that s.2(2) covered the manner/system of work and really was only intended to apply to the use of the premises per se.

• In obiter, unopposed by the majority, Goff argued that mere knowledge by the occupier that the contractors were operating an unsafe system of work would not render the occupier in breach of his common duty of care, since it is not for occupiers to tell contractors how to do their job.