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Bottomley v Todmorden Cricket Club, Court of Appeal, 7 November 2003

17 November 2003
The issues

Occupiers Liability – independent contractor – dangerous activity – fireworks.

The facts

The Claimant went to a fundraising event at the Cricket Club on the 7th November 1997. The Second and Third Defendants, Messrs Hindle and Read “were conducting a pyrotechnic display”. Their display involved a bonfire and a conventional fireworks display. Mr Bottomley had been invited along by Messrs Hindle and Read to help them carry out their show. He was dealing with a pair of mortars and as he placed the gunpowder charge into the second mortar tube, the contents ignited exploding in his face and causing him severe burns and a broken arm. The claim was valued by his Solicitors or between £250,000.00 and £300,000.00.

The Club had appointed a Sub-Committee to be in charge of the bonfire event. They had dealt with Mr Hindle and Mr Read (known as “Chaos Encounter”) since 1995 when Mr Read had made two presentations. They had performed for the Club previously. Mr Bottomley had helped Mr Read and Mr Hindle before and had said in November 1997 that he would be willing to help them on a voluntary basis. He had been walked around the site by Mr Read and told what to do. A plan had been devised which the Judge commented upon and found that there were inherent dangers in it. In any event, things did not go according to plan. As far as the Club and the Committee were concerned, the person in charge of liaison with Chaos said that he was not aware that Mr Bottomley was present on that night. The Judge and Mr Crossley, an unsatisfactory witness, particularly with regard to inspection of Chaos’ liability insurance in 1995. The Judge accepted the Claimant’s expert’s evidence that the ignition of mortars was more dangerous than the ignition of fireworks and that the pyrotechnic display was potentially very dangerous. He noted that Mr Bottomley had no training or experience in the use of fireworks. He found that Chaos did not possess Public Liability cover, but that it was highly unlikely that Mr Read had ever claimed as far as the Club was concerned, that he did. He found that no one from the Club made a specific enquiry about insurance. He noted that Mr Read was entirely unaware of the Health and Safety Regulations covering the use of fireworks and that this threw light on Mr Read’s competence to carry out this sort of work. He found that the safety equipment for Mr Bottomley was inadequate. There was no formal contract between the Club and Chaos and that the Club had no clear idea of what Chaos was intending to do. He concludes that Chaos was an amateurish organisation operating in a field, which required the highest degree of professionalism. The Judge concluded that the Club and Chaos were liable to the Claimant but that Chaos were liable to contribute 100% to the Judgment against the Club. The Club appealed.

The decision

The Judge had rightly concluded that the Club had failed to take care when selecting Chaos. On the basis that a person who engages an independent contractor to carry out work is not liable for the negligence of the independent contractor provided that the person exercised reasonable care in engaging a reasonably competent contractor.

2. Occupiers usually escaped liability in cases like this because they could show that they had taken reasonable care to select competent and safe contractors and in those cases injured employees or agents could look no further than their own employer or principle for redress. However, the House of Lords had acknowledged in Ferguson -v- Welsh that there might be circumstances in which the occupier of the land who wished something dangerous done on his land for his benefit might be liable as well. The circumstances amounted to failure to select a reasonably competent contractor. The injuries suffered by the Claimant were foreseeable. There was no proper safety plan. There was the requisite proximity between the Club and Mr Bottomley who was lawfully on the premises. It was fair, just and reasonable to impose liability on the Club because it did not do what it ought to have done before it allowed a dangerous event to take place. The fact that on this occasion Chaos performed their services for no fee made no difference.

Appeal dismissed.

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