Need Work Done? Know Your Obligations
Andrew A. Martin · December 3rd, 2007
I do not have a head for heights. I marvel at people who work on building sites and who casually stand on the edge of a sheer drop. Or walk like cats along steel beams with as little concern. Or climb to the top of one of those large cranes that operate all around town.
I have never seen any of these heroic figures wearing a safety line or harness. It seems miraculous to me that I never hear of anyone falling off and injuring themselves.
This idle thought put me in mind of what my own responsibility might be the next time I hire a painter or a builder or a plumber to do some work at my home. I did some digging and uncovered some good news and some bad news.
The good news is that, as an ordinary householder, I would not generally be classed as an 'employer' for the purposes of the Health and Safety Regulations 1986. I might fall into this category if I undertook substantial building works and engaged sub-contractors directly.
The bad news is that I do have an exposure to liability as an 'occupier' under the Occupiers' and Highway Authorities' Liability Act 1978.
Under that Act, an occupier (who may be an owner or a tenant) owes "a common duty of care" to lawful visitors to ensure that the premises are reasonably safe and to warn visitors of any dangers inherent in the premises or on the site.
A general warning like "watch out for potholes" is apparently not enough. It has to be specific enough to enable the visitor to avoid injury.
The common duty of care extends to workmen, tradesmen and contractors who come on to premises to carry out work for you. There are numerous situations where occupiers have been held liable for injuries sustained by workmen on site, or for failing to supervise the use of equipment provided by the occupier, or for providing faulty equipment for the use of a workman or contractor (letting the contractor use your faulty power washer or dodgy ladder, for instance).
Ordinary Risk
This exposure is subject to a general limitation that a workman or contractor has to take reasonable precautions against the "ordinary risks of his trade." However, the risk must be normally associated with the contractor's trade, not a risk that derives from the premises or to the equipment provided by the homeowner/occupier.
For example, if a painter is injured by falling through a weak roof, or an electrician is injured falling through a defective ceiling, or a plumber is injured falling through a pit-top or septic tank covering, these would not be risks the contractor assumed when coming on the site to do the work.
An occupier may even be liable for the conduct of third parties on their premises. The fact that it was the independent contractor you hired that caused the injury to someone else does not mean that you are in the clear. In order to avoid liability, you have to show that you exercised reasonable care in the selection and supervision of the contractor.
Most small jobs are undertaken without written contracts setting out the terms or expressing any limitations of liability. On big jobs, it might be more usual to have a detailed contract. But the standard form building contract commonly used does not limit the occupier's liability, and you cannot exclude liability in the contract with the general contractor for the men who come onto the site as 'strangers'.
So, what happens if things go wrong? A phone call to five local insurance companies who provide household insurance revealed that two of them do cover householder's liability for injury sustained to visitors, while on the premises, two said no, and one said "it depends."
A serious injury to a contractor sustained by falling through the roof or down the stairs will likely result in a substantial financial claim. It is easy to be wise after the event. Check your policy before you engage a contractor or handyman to take on a job of any significance to see if you have cover.
If you don't, get an endorsement to cover you before the work begins, or get a written waiver of liability from your contractor, and warn him or her of any risks which you know or suspect may be lurking on the premises.