Pyrotechnic Display - Negligence

Michael John Bottomley V Todmorden Cricket Club (2003)

The defendant club which allowed a dangerous pyrotechnic display to take place on its land owed a duty of care to the claimant who was lawfully on the land assisting the contractors conducting the display, and was liable to the claimant along with the contractors when he was injured in an explosion because they and the club had failed to take ordinary precautions.

Personal Injury - Negligence

CA (Brooke LJ, Waller LJ, Clarke LJ) 7/11/2003

LTL 7/11/2003 (Unreported elsewhere)

Document No.: AC0106016

Appeal by the defendant club from a judgment of Simon J holding the club and the second and third defendants ('H' and 'R') liable to the claimant ('B') in damages for personal injury sustained at the club's annual fundraising event at its premises. H and R were conducting a pyrotechnic display as members of a two man stunt team. They had invited B to assist them. He did so voluntarily. While he was placing a gunpowder charge into a mortar tube filled with petrol the contents of the tube ignited prematurely and exploded in his face causing him severe burns and a broken arm.

H and R did not possess public liability insurance cover. B's case against the club was that it failed to take reasonable care to select a reasonably competent stunt operator, that it failed to ascertain whether H and R were insured, and that it was vicariously liable for the negligence of H and R because, although they were independent contractors, it had employed them to perform an "extra hazardous" activity on the premises. The judge held that the pyrotechnic display plainly was an extra hazardous activity and the club was vicariously liable for the negligence of H and R towards B who was not employed by them and came onto the club's land pursuant to a general invitation.

The club was in breach of its duty to select a competent contractor but there was no free-standing duty to ensure that H and R were insured. The club appealed arguing that it did not owe and was not in breach of any duty to B to select a suitable contractor and that as occupier it did not owe any duty to B as the agent of an independent contractor who came onto the land for his principal's purposes.

HELD: (1) The Occupiers' Liability Act 1957 only replaced the common law rules relating to the occupancy duties of an occupier and not those relating to the activity duties of an occupier (Fairchild v Glenhaven Funeral Services Ltd (2002) 1 WLR 1052). Honeywill & Stein Ltd v Larkin Brothers Ltd (1934) 1 KB 191 which was concerned with an occupier's activity duty remained binding.

(2) There was ample evidence to justify the judge's conclusion that the club failed to take care when selecting H and R as contractors. The fact that H and R performed for no fee made no difference.

(3) The club did owe a duty of care to B even though he was an agent of H and R. The club allowed a dangerous event to take place on its land with no public liability insurance and no written safety plan because it neglected to take the ordinary precautions it should have taken (Ferguson v Welsh (1987) 1 WLR 1553 applied).

That conclusion could be reached without applying Honeywill v Larkin (supra). The injuries suffered by B were foreseeable if there was no proper safety plan. There was the requisite proximity between the club and B 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 the dangerous event to take place on its land.

Appeal dismissed.