Scottish Court of Session Decisions

[1] Ian Burgess was a "bouncer". As at 15 May 1999, he worked at the Jaffa Nightclub in Edinburgh and that night, he assaulted the pursuer by throwing him out of the nightclub onto the street outside, where he hit his head on the pavement and sustained severe injuries. Mr Burgess had assaulted another customer of the nightclub on 25 April 1999. The owners and operators of the nightclub (the second defenders) did not employ Mr Burgess. He was employed by Stephen Allan (the fourth defender), with whom the second defenders had a contract for the provision of security services at the Jaffa Nightclub. Other security staff employed by the fourth defender had, on several occasions over the two years prior to May 1999, assaulted members of the public there and the police had attended to investigate. Prior to contracting with the fourth defender, the second defenders had not made any checks as to his competency as a provider of such services. Nor had they made any enquiries as to whether or not he had public liability insurance. He did not have any such insurance.

[2] The foregoing is a summary of the pursuer's averments of fact regarding the merits of his case which came before me on the procedure roll on the second defenders' plea to the relevancy. Mr Burgess is the first defender in the action.

[3] In his pleadings, the pursuer seeks to advance a case against the second defenders to the effect that they were in breach of their common law duty of care and in breach of their duties under the Occupiers' Liability (Scotland) Act 1960. In Article 4 of Condescendence, he avers:

[4] Mr Murphy moved me to dismiss the action. The averments regarding occasions during the two years prior to May 1999 when members of the public had been assaulted were vague and inspecific. The conviction of the first defender for committing an assault at the nightclub on 25 April 1999, post-dated the events complained of, as was evident from the extract previous conviction which was lodged (6/3 of process ). The reliance on an occupier's duty under the Occupiers' Liability (Scotland) Act was irrelevant as was the common law case.

[5] The pursuer's case was, it was said, predicated on there being a duty on an occupier to prevent a visitor from being deliberately assaulted by a third party but no such general legal duty existed. Nor was there any duty in law to ascertain if an independent contractor held public liability insurance; the finding of the existence of any such duty would involve an unacceptable extension in the law of delict. The averment that the second defenders knew or ought to have known that security staff might assault members of the public was unsupported by relevant and specific averments. Regarding the alleged duty to enquire as to the contractor's competence, there were no averments as to what questions required to be asked or that if any such enquiries had been made they would, in this case, have produced a different result.

[6] It was submitted further that there was no power or duty in law to supervise or regulate the conduct of an independent contractor or to regulate the conduct of his staff.

[7] Mr Murphy submitted, under reference to the Occupiers' Liability ( Scotland) Act, that the incident founded on by the pursuer had nothing to do with the state of the premises and there were no special circumstances relied on by the pursuer so as to make the statutory case relevant (Dorset Yacht Company [1970] AC 1004; Maloco v Littlewoods 1987 SC (HL) 37). He also referred to three English authorities in which the question of whether an occupier had a duty to check the insurance position of an independent contractor arose (Gwilliam v West Hertfordshire Hospitals NHS Trust & Ors [2003] QB 443; Bottomley v Todmorden Cricket Club [2004] P. I. Q. R. P 18; and Naylor (t/a Mainstreet) v Payling [2004] P. I. Q. R. P 36) and submitted that they were not authority for the proposition that there was any free standing duty incumbent on occupiers, even under the English legislation (Occupiers' Liability Act 1957) to enquire as to a contractor's insurance position albeit that the view there was that the duty could arise in special circumstances. No such circumstances were relied on by the pursuer in the present case though.

[8] Mr Woolman submitted that the pursuer's averments were sufficiently specific and relevant and a proof before answer should be allowed. The case was a straightforward one in which the pursuer alleged that the second defenders had failed in their duty to take reasonable care for his safety in their nightclub. The failure was that they had employed an independent security contractor without satisfying themselves as to his competence. If no checks as to the insurance position of such a contractor were made, it was difficult to see how they could have fulfilled their duty to the public. The case of Gwilliam should be regarded as highly persuasive and to the effect that a person in the position of the second defenders had a duty to check the competence of the independent contractor.

[9] There were, it was said, two aspects to the pursuer's case: selection and supervision. These aspects arose against a background of the second defenders' having knowledge of the allegation that the first defender had committed an assault at the nightclub on 25 April 1999. That gave rise to a further duty to scrutinise the operation of the contract by the fourth defender. Here, the second defenders accepted that they made no checks as to the fourth defender's competence or insurance. That was enough for a prima facie case.

[10] Regarding the case under the Occupiers' Liability (Scotland) Act, Mr Woolman submitted that it was relevant in respect that persons attending the second defenders' nightclub were being controlled in some measure by a person who had demonstrated that he was unfit for the task. The "danger" relied on that brought the case within the statutory provisions was the first defender himself.

[11] Parties are agreed that the first defender, who for present purposes can be taken to have been employed by the fourth defender, assaulted the pursuer and that the fourth defender had, at that time, no insurance to cover the injuries sustained by the pursuer as a result. The second defenders contracted with the fourth defender at some unspecified date but apparently prior to April 1997, given the narrative contained in Article 2 of Condescendence. Parties are also agreed that the second defenders made no enquiries as to the fourth defender's competence prior to contracting with him nor did they make any enquiries as to his insurance position. No doubt the pursuer feels aggrieved that there is no insurance company standing behind the first defender's employer to compensate him in respect of his loss, injury and damage. But do these circumstances demonstrate that the second defenders owed and breached any duty of care to the pursuer ? I am not satisfied that they do.

[12] Firstly, as was accepted by the pursuer, the law does not normally impose on a person vicarious liability for the delicts of an independent contractor. It was not suggested that the circumstances of the present case were so hazardous as to involve a departure from that normal rule. The second defenders could not, it was accepted, simply be held vicariously liable for the first defender's assault on the pursuer.

[13] Secondly, looking next at the pursuer's case under the Occupiers' Liability (Scotland) Act, it is, in my view irrelevant. The relevant provisions of sections 1 and 2 of that Act are as follows:

[14] The statutory provisions thus apply to dangers arising from the physical state of the premises and also to dangers that arise from activities carried on there. An example of a danger due to the state of the premises would be where a wooden staircase is rotten and at risk of collapse. An example of a danger due to something done or omitted to be done on premises would be where dangerous animals are kept there or hazardous substances are handled in laboratory premises without appropriate protections being in place. The focus, in the case of the latter category, is on activities carried on within premises, their nature and the way in which they are carried on.

[15] There is no suggestion that there was a danger due to the state of the premises in this case. That leaves the question of whether the pursuer's pleadings advance any case that there was a danger due to something being done or not done on them. Even were it to be accepted that, the first defender having been involved in one incidence of violence on 25 April 1999, there was a risk that he would become involved in another such incident, that would not amount to a danger due to something being done or omitted to be done on the premises. No activity was being carried on there which either of itself or because of some omission in the way in which it was being conducted, gave rise to danger. I do not accept senior counsel for the pursuer's submission that the first defender himself was a danger even less that he was a danger arising because of something done or not done in the nightclub premises.

[16] I turn next to the pursuer's common law case, characterised as being a matter of both selection and supervision. Regarding selection, although the pursuer avers, as a generality, that the second defender made no enquiries as to the competence of the fourth defender, he does not say what would have happened if such enquiries had been made nor is it suggested that the fact of the assaults committed by the first defender in April and May 1999 demonstrated that the fourth defender was, at the time of contracting, an incompetent contractor. There is no suggestion that the second defenders would have discovered anything relevant to an assessment of competence nor, more fundamentally, that any such discovery would have led to the second defenders refraining from contracting with the fourth defender at the time they did which was, as I have noted, over two years prior to the assault on the pursuer. What the pursuer's case regarding selection really amounts to is that the second defenders should, at the time of selecting the fourth defender, have enquired whether he had public liability insurance. There are, however, also fundamental problems in that approach.

[17] Firstly, in his pleadings the pursuer appears to found only on an absence of insurance as at 15 May 1999. There is no averment as to whether or not the fourth defender had insurance at the time the second defenders contracted with him and, accordingly, no case pled that if the second defenders had checked whether the fourth defender had appropriate insurance prior to contracting, they would have discovered that he did not. Nor is there any case pled that any discovery of the absence of insurance would or should have led the second defenders to conclude that the fourth defender was not a competent contractor. I note, in passing, that the pursuer does not specify any particular level of or type of cover other than that the cover required to be "public liability cover". It would, accordingly, seem that the pursuer's case is that it would be enough for the contractor to have minimal cover which might not be sufficient in the case of a substantial claim. The fact of some cover prior to the time of contracting would seem to be enough for the pursuer's case, even if that cover was inadequate, or if it subsequently lapsed.

[18] Secondly, even if the pleadings can be interpreted as amounting to a case that the second defenders should have regularly checked the insurance position (and I consider that that would be an indulgence too far), that would not, in my view, amount to a relevant case. There is no Scottish authority to the effect that an occupier who enters into a contract with an independent contractor to perform some activity within his premises owes the duty founded on by the pursuer, namely a duty to persons who enter onto those premises to check the insurance position of an independent contractor at any time. If such a duty exists, it would involve being satisfied that the duty to take reasonable care for a person's safety includes a duty to take reasonable care to see that they will be compensated in the event of an independent contractor negligently injuring them. It is trite that the imposition by the law of delict of the duty to take reasonable care for the safety of others is concerned with the prevention of injury. The availability of compensation, however, presupposes injury and is not directed towards its prevention. To suggest that there should be a duty to see to it that insurance is in place is, in effect, to say that occupiers have a duty to see that persons who come onto their premises are cushioned from the impact of risks created and imposed on them by others over whom they have no control. In short, a far reaching proposition that does not, at present, seem to have any basis in law nor would it be obviously fair, just or reasonable to create a place for it there.

[19] Although made in the context of the particular duty to take steps to be satisfied as to the competence of an independent contractor imposed by the English legislation, some of the comments of Lord Justice Sedley in Gwilliam at p.460 are instructive. He was considering what he saw as the critical question of whether the hospital's duty in that case to keep its visitors reasonably safe included a duty to take steps to check that its outside contractors had public liability insurance:

He carries on and explains that he rejects the proposition that there is a duty to check insurance because:

As to whether Gwilliam, in which Lord Justice Sedley was in the minority on the question of whether there was a duty to enquire about insurance, or the other English authorities to which I was referred should persuade me that such a duty exists at common law, I would make the following observations. In Gwilliam there had been a trial and two of the occupier's employees had given evidence to the effect that they realised it was important when employing a small firm that they should be insured and that the fact of insurance would go to their competence; if the firm did not hold themselves out as being insured then that would, it was accepted by those witnesses, suggest that they were not reputable and ought not to be trusted. That evidence was given in the context of a case based on s.2(4) of the Occupiers' Liability Act 1957 which, unlike the Occupiers' Liability (Scotland) Act, specifically requires occupiers to take reasonable steps to satisfy themselves that independent contractors carrying out works on their premises are competent. It is, given that evidence, perhaps possible to understand why the majority view was that, to comply with the English

statute, the enquiry should have been made. As Lord Woolf CJ said, at p.449, under reference to the particular facts of the case:

[20] Gwilliam also illustrates how the establishment of the existence of the duty could be a pyrrhic victory for a pursuer since there, the enquiry had been made and wrongly answered in the affirmative. It was, I note, held that it was enough to have enquired. The duty had been discharged by the asking of the question. Yet discharge of the duty did not, as a matter of fact, produce a situation whereby the injurious event was covered by any insurance at all. The court determined that it was not incumbent on the hospital to check the insurance certificate which had, as a matter of fact, expired by the time of the event during which the plaintiff was injured. It was only, it seems, looking for an occupier to check that a contractor held himself out as being insured, to use Lord Woolf's terminology, not looking for him to see to it that a contractor is actually insured. It is, of course, not difficult to envisage the sort of difficulties that could arise if occupiers were required to check certificates. They would, for instance, have no knowledge as to whether the insured had made any representations or acted or failed to act in a manner which would give the insurance company grounds for avoiding liability under the policy.

[21] In the circumstances, I doubt whether Gwilliam could be relied on as authority for the proposition that an occupier could never be regarded as having taken reasonable steps to satisfy himself as to the competence of an independent contractor if he had not checked his insurance position. If that were the law, it would seem harsh to an occupier who checks on the quality and reliability of the contractor by other means whether by word of mouth, references, prior experience of contracting with him or otherwise and is thereby reassured as to the contractor's competence but does not check the insurance position. Gwilliam does, however, appear to turn on its own facts and it remains uncertain what the view of the majority would have been had the evidential concessions to which I have referred not been made although, judging by the later decision in Naylor, it seems that it would not have been supportive of the position advanced on behalf of the pursuer in the present case.

[22] As regards the case of Bottomley, I see no reason to regard it as persuasive of the proposition that Scots Law has embraced the duty for which the pursuer contends. It too concerned a decision as to the nature of the obligations imposed by the English legislation. Insofar as it holds that there are circumstances where an occupier could be held vicariously liable for the acts of an independent contractor, such circumstances, namely where an extra hazardous activity is to be carried on, do not apply in the present case. On the matter of insurance, the issue that arises here did not arise in Bottomley since the judge at first instance had taken the view that there was no authority for the proposition that there was a free standing duty to ensure that there was insurance in place and the point does not appear to have been argued on appeal. There would, it seems, have been little point in doing so since the evidence in that case disclosed a series of factors pointing to the amateurish incompetence of the contractor of which their lack of insurance was seen as but one.

[23] As regards the case of Naylor, a case which involved a plaintiff sustaining injury when he was ejected from a nightclub by a doorman, the Court of Appeal clearly determined that there was no "stand alone" duty to ensure that the independent contractor who employed the doorman was insured. Whilst there had been no check on the insurance position of the contractor by the nightclub owner, there was no evidence that the lack of insurance in the case would or should have caused him to doubt the contractor's competence. Lord Justice Waller, who had also sat in the case of Gwilliam said that the job of acting as a bouncer did not fall within the type of hazardous activity which was under consideration in either Gwilliam or Bottomley.

[24] Finally as regards the English authorities, they all involve consideration of the nature and extent of an occupier's duty in the light of the English legislation which, as I have noted, is in different terms and involves an express obligation for an occupier to take reasonable steps to satisfy himself as to the competence of an independent contractor. However, even against that background, properly analysed, they do not support the proposition that an occupier has, as it was referred to in Naylor, a "free-standing" duty on an occupier to take any steps to satisfy himself that an independent contractor has insurance cover. Thus, even were I persuaded that I should follow them, that would be of no assistance to the pursuer. In my view, the pursuer's case regarding the selection of the second defenders, both that based on the Occupiers' Liability (Scotland) Act and that which is advanced at common law, are irrelevant.

[25] Turning to the pursuer's case based on a breach by the second defenders of what was summarised by Mr Woolman as a duty of supervision, firstly, the weaker alternative rule requires to be applied to the pursuer's averments which means that his case amounts to no more than that the second defenders had, in the circumstances, a duty to supervise the behaviour of the fourth defenders' staff so as to minimise the risk of further assaults. Little attempt was made to defend this aspect of the pursuer's case, perhaps in recognition of its inherent weaknesses. It seems to me that what the pursuer is suggesting here is that the second defenders, as occupiers, had a duty to seek to impose a fresh contractual condition on the fourth defender after the commencement of the contract, in the light of the way in which the fourth defender's employees were conducting themselves. I was not referred to any authority for the proposition that the common law imposes such a duty nor do I see how such a duty could, reasonably, be imposed. In the event that an occupier considers that a contract he has entered into is not being performed in conformity with its conditions whether express or implied, he can certainly take steps to seek a remedy for breach of contract whether by seeking damages or by terminating the contract in the event that the breach is material. He is, however, in no position to make any demands of the contractor with regard to matters that are not already covered by the terms of their contract. The pursuer's case under this head is also, in my view, irrelevant.

[26] In these circumstances, I will sustain the first plea-in-law for the second defenders and dismiss the action insofar as it is directed against them.