Gwilliam v West Hertfordshire Hospitals NHS Trust [2003] QB 443

• Defendant 1 contracted Defendant 2 to set up a trampoline at a charity fundraiser. Defendant 2 had told Defendant 1 that it had public liability insurance, when in fact it did not.

• Plaintiff was injured because the trampoline was set up badly and settled with Defendant 2 for a lesser amount than he would have received had Defendant 2 had public liability insurance.

• Plaintiff claimed Defendant 1 had a duty of care to those attending to ensure that Defendant 2 had the liability insurance and therefore sued Defendant 1 for the amount it would have received had there been insurance, minus the amount it received in the settlement.

• CA denied the claim. 

Lord Woolf CJ (majority approach)

• This activity was “inherently risky” (extra-hazardous) and Defendant 1 had a duty to take reasonable care to ensure suitability of the contractor i.e. liable for Defendant 2’s negligence.

• However, upon being (falsely) told by Defendant 2 that the insurance existed, it would be unfair to expect Defendant 1 to actually check the document and Defendant 1 had fulfilled its duty.

• Majority say there is a duty to enquire into the insurance status of the independent contractors (IC).

Sedley LJ (minority approach)

• There is no duty to inquire as to the insurance of the IC - not fair, just and reasonable” to impose such a duty.

• Also if there is a duty to ensure safety of the participants, ensuring that there is adequate insurance could not possibly be a part of this. 

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Sedley LJ seems right: there is no precedent of a duty to check that there is insurance cover and if there is a duty of care owed by Defendant 1 it must be to ensure that the contractor has suitable safety standards, NOT to ensure that there will be compensation should those standards be breached.