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Clark v (First Defendant) Hosier & Dickinson Ltd (Second Defendant) Method & Madness, Court of Appeal, 14 October 2003

22 October 2003
The issues

Blameworthiness – cable – subcontractor – apportionment.

The facts

The Claimant had had an accident working on premises, which were owned and occupied by the Second Defendant. The First Defendant had a contract with the Second Defendant to carry out building works. The sub-contractor employed by the First Defendant found a mains electricity cable. The cable was near the entrance to the premises and where the Second Defendant had agreed with the Claimant for the Claimant to install entrance gates at the end of the building works. The Second Defendant had a General Manager, who knew nothing of construction work and left the question of what to do with the cable to be dealt with by the sub-contractor. The Claimant was told that the cable would be re-directed and began drilling in what he thought was a safe place. He struck the cable and was injured. The cable was not where the Claimant had been told it was re-directed to. The Judge found the First Defendant and Second Defendant liable to the extent of 50% each. The Second Defendant appealed.

The decision

The apportionment of blame by the Judge was plainly wrong.

2. The finding of the cable was not an unexpected hazard but was something that was inherent in a project of this type. The First Defendant had been engaged by the Second Defendant as a contractor to carry out the project and under the terms of the contract an Architect had been appointed for the First Defendant to consult if necessary.

3. The First Defendant should have ensured that when something of this nature happened, people knew what to do or who to consult. No such process was in operation in this case and the First Defendant was in breach of contract and negligent.

4. The sub-contractor had re-buried the cable too near the surface and had given the wrong information as to where it had been re-laid. He had created the hazard.

5. The Second Defendant had misgivings about the competence of the sub-contractor and should have done more but the Second Defendant’s blameworthiness did not match that of the First Defendant. The liability would be re-apportioned two-thirds to the First Defendant and one third to the Second Defendant.

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