Ferguson v Welsh [1987] UKHL 14 (29 October 1987)

An employee of a demolition sub-contractor was injured by a collapsing wall. The main contractor had, before engaging the sub-contractor, negligently demolished an adjacent building, leaving the wall unsafe. The House of Lords held the main contractor owed a duty of care.

Facts

Mrs. Anderson engaged a main contractor, Mr. Spence (the second defender), to carry out work on her property, including the demolition of a small outbuilding. Subsequently, Durham City Council accepted Mr. Spence’s tender for the demolition of a block of four houses, one of which was adjacent to Mrs. Anderson’s outbuilding. Before the contract with the Council was formally concluded and without the Council’s authority, Mr. Spence proceeded to demolish three of the houses, leaving the gable end wall of the fourth house unsupported and in a dangerous condition. Mr. Spence then engaged Welsh Brothers (the first defenders) as sub-contractors to complete the demolition work. The pursuer, Mr. Ferguson, an employee of Welsh Brothers, was seriously injured when the unstable gable wall collapsed on him while he was working at its base.

Issues

The primary legal issue was whether a main contractor (Mr. Spence) owed a common law duty of care to ensure the safety of an employee of an independent sub-contractor (Welsh Brothers), in circumstances where the danger was created by the main contractor’s own positive act of negligence before the sub-contractor commenced work on site. A secondary issue was whether the main contractor could be liable for failing to provide a safe system of work for the sub-contractor’s employee.

Judgment

The House of Lords unanimously dismissed the appeal, holding that the main contractor, Mr. Spence, did owe a duty of care to the pursuer, Mr. Ferguson, and was liable for his injuries. Lord Keith of Kinkel delivered the leading speech. He distinguished the case from scenarios involving pure occupier’s liability for the static condition of premises. The court’s reasoning centred on the fact that the specific danger was not inherent in the state of the premises but was actively created by the main contractor’s prior negligent acts.

Reasoning of the Court

Lord Keith emphasised that the source of the danger was Mr. Spence’s own activity. He stated:

In the present case, however, the source of the danger to the pursuer was not the state of the premises as such but the activity of demolition which Mr. Spence had carried out there. That activity created a serious danger to persons who might thereafter come upon the site to do work in connection with the wall.

The court rejected the argument that the main contractor’s duty was discharged by engaging a competent sub-contractor. The duty arose from the general principles of negligence established in Donoghue v Stevenson. The fact that the pursuer’s direct employers were the sub-contractors did not absolve the main contractor of a duty of care concerning dangers he had himself created through a positive act of negligence. Lord Keith found it reasonably foreseeable that a workman engaged in the sub-contracted demolition work would be at risk from the unstable wall.

He further articulated the scope of the duty owed by a main contractor (as an employer in a broader sense) on a building site:

It would, in my opinion, be wholly unreasonable to exclude from the scope of an employer’s duty of care persons working on the site as employees of an independent contractor whom the employer has engaged to carry out part of the building operations.

The court thus affirmed the decision of the Second Division of the Court of Session, finding Mr. Spence 75% liable and Welsh Brothers 25% liable for the pursuer’s injuries.

Implications

The decision in Ferguson v Welsh is significant for clarifying the non-delegable duty of care owed by a main contractor to the employees of a sub-contractor, particularly where the main contractor has actively created a hazard on the worksite. It establishes that a main contractor cannot escape liability for their own antecedent negligence simply by entrusting the work to a supposedly competent sub-contractor. The case underscores that the duty of care in negligence is not confined by contractual relationships but extends to those who are foreseeably likely to be injured by one’s positive acts, reinforcing the ‘neighbour principle’ in the context of complex construction site relationships.

Verdict: The appeal was dismissed, and the interlocutor of the Second Division of the Court of Session was affirmed.

Source: Ferguson v Welsh [1987] UKHL 14 (29 October 1987)