A recent case has reinforced the legal position that there are only limited situations where a contractor would be liable in tort for the actions and omissions of its subcontractors.
To what extent is a contractor responsible for its subcontractors’ work?
In a contractual claim, the answer will depend on the terms of the main contract, but the contractor will generally be fully responsible for the acts and omissions of its subcontractors insofar as they relate to the main contractor’s contractual obligations.
However, the position in a tortious claim has been less clear cut. Tortious claims in negligence can potentially be made even when the parties have no contractual relationship. Some clarity in this regard has been provided by the recent decision in Willmott Dixon Construction Limited v Robert West Consulting Limited  EWHC 3291 (TCC).
Facts of the case
The claimant contractor claimed the defendant engineer had carried out the design of the underpinning of a gable wall negligently and that this caused damage to a party wall that delayed the project, and therefore caused the claimant to suffer loss and damage.
As part of its defence, the defendant alleged contributory negligence arising out of the works carried out around the party wall by the claimant’s subcontractor. A preliminary question that arose for the court was whether such a defence could succeed as a matter of law.
“The key protection for any employer is to make sure it has a contract in place with its contractor”
This required the court to address the following issues: did the claimant owe a non-delegable duty in tort in respect of the underpinning works carried out by its subcontractor, and, if so, was that duty capable of being relied on by the defendant in its allegations of contributory negligence?
The court held that the main contractor could not be vicariously liable in tort for the acts and omissions of its independent subcontractor unless they related to a non-delegable duty imposed on the main contractor.
Two potential non-delegable duties were identified: where the subcontractor was engaged in “extra-hazardous or inherently dangerous operations”, and where there is a withdrawal of support by the owner of one property which causes damage to the adjoining property.
“This case reinforced the legal position that there are only limited situations where a contractor would be liable in tort for the acts and omissions of its subcontractors”
The court found that the first of these exceptions was unlikely ever to apply unless the works were exceptionally or unusually dangerous, no matter what precautions were taken. The second exception did not apply because it could only arise between owners of neighbouring land.
The court went on to consider whether a non-delegable duty is relevant to contributory negligence at all and came to the conclusion that it was not. Contributory negligence is not dependent upon any sort of duty but is dependent on the claimant’s failure to look after itself.
What it means
This case reinforced the legal position that there are only limited situations where a contractor would be liable in tort for the acts and omissions of its subcontractors.
The decision highlighted that the scope of non-delegable duties is limited.
The key protection for any employer is therefore to make sure it has a contract in place with its contractor. Otherwise it would be left with only a potential claim in tort for defective works, which the main contractor could potentially defend on the basis that it had not acted negligently because it had subcontracted its works to a reasonably competent subcontractor (notwithstanding the difficulties in recovering certain types of financial losses in tortious claims).
Jorge Klien is an associate in the construction, engineering and projects team at Charles Russell Speechlys