EXTRA HAZARDOUS ACTIVITIES AND RESPONSIBILITY FOR INDEPENDENT CONTRACTORS. William Norris QC, 39 Essex Street

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1 EXTRA HAZARDOUS ACTIVITIES AND RESPONSIBILITY FOR INDEPENDENT CONTRACTORS William Norris QC, 39 Essex Street INTRODUCTION AND SUMMARY This article considers whether and, if so, to what extent a principal may be held liable for the negligence of an independent contractor in relation to what has been called extra hazardous activities 1. Particularly, I shall consider (i) whether English Courts should still recognise extra hazardous activities as a special category in respect of which the principal cannot avoid or delegate responsibility, and (ii) if so, the kind of activities which might (or might not) be characterised as extra hazardous at the present time. In doing so, I am revisiting an issue addressed by Professor Ewan McKendrick in an article in Modern Law Review of 6 th November 1990 and which arose directly in Rhodia Consumer Specialities Ltd v Berk Chemicals Ltd and Others 2. That was a case tried by Douglas Brown J earlier this year but which settled during the course of closing speeches and therefore the Judge was not asked to rule on any of the issues that we shall discuss 3. I begin by looking at the facts and legal issues arising in that litigation A category of activity best known from the decision of the Court of Appeal in Honeywill & Stein v Larkin Bros [1934] 1 KB 191. This was Part 2 of a case which had already been to the House of Lords sub nom Albright & Wilson UK Ltd v Biachem Ltd and Others [2002] UKHL 37. William Norris QC and Andrew Phillips (of Crown Office Chambers) instructed by Vizards Wyeth, acted for Biachem, a Part 20 Defendant in that action. I gratefully acknowledge my debt to AP for his help during the long history of this case and in the preparation of the legal submissions which formed an important resource for this article. 1

2 THE FACTS OF THE CASE Albright & Wilson (now called Rhodia but hereafter referred to as A&W ) ran a substantial chemical works at Avonmouth. They bought in chemicals from outside suppliers. In September 1996 they placed an order for 23 metric tonnes of sodium chlorite from Berk and an order for a similar quantity of epichlorohydrin from Biachem. 23 metric tonnes constituted the contents of one load for a single road tanker. Both deliveries were to be made on 3 rd October Berk acquired its consignment of sodium chlorite from an Italian company, Caffaro, which instructed a Belgian transport company, Huktra, to make the delivery. Coincidentally, that was the same company instructed by Biachem to deliver its consignment of epichlorohydrin. Huktra subcontracted the transportation of the consignment of sodium chlorite and of the consignment of epichlorohydrin to an English firm, Stevens Transport. Huktra mistakenly instructed Stevens to place Biachem s delivery note (for epichlorohydrin) with the tanker that in fact contained Berk/Caffaro s consignment of sodium chlorite. Stevens driver therefore arrived at Avonmouth on the morning of 3 rd October 1996 with what was in fact a consignment of sodium chlorite but handed over Biachem s delivery note identifying the contents as epichlorohydrin. Because it was thought to be Biachem s delivery of epichlorohydrin, A&W directed the tanker to be unloaded into storage tanks that already contained epichlorohydrin. The unintended mixture resulted in what the scientists called an exothermic reaction. In ordinary language, there was a very big bang indeed. Because Huktra had realised their error and managed to telephone A&W whilst the delivery was being unloaded, the consequences were not as appalling as might otherwise have been the case. Nevertheless, the losses resulting from the explosion (mostly property damage and business interruption but some personal injury claims) were estimated to be in the region of 12 million. 2

3 A&W s CONTRACT ACTION A&W began an action in contract against Biachem and Berk alleging that the delivery constituted defective performance by both parties. In a nutshell, Biachem was in breach for delivering the wrong material and Berk was in breach because the paperwork accompanying the delivery failed to identify/describe it properly. On the trial of a preliminary issue, Eady J and the Court of Appeal found in A&W s favour. The House of Lords, however, decided that the act of delivery could, in law, constitute only performance by a single party and that it was necessary to decide which of the two parties was responsible 4. It held that what was decisive of that issue was the nature of the material being delivered rather than what those involved in making or accepting delivery thought the material was or how it was described 5. In reaching those conclusions the House of Lords was only deciding the preliminary issue of which contract was being performed. A&W had brought no parallel claim in tort against Berk and Biachem. During the course of the trial before Douglas Brown J, it was explained that there were two reasons for that strategy. First, A&W wished to avoid any argument that they might be partly responsible for their own loss 6. Secondly, it was explained that there were concerns that Berk/ Biachem might be able to rely on the principles governing responsibility for independent contractors. THE ISSUE OF CAUSATION AND THE TORT ACTION Having obtained a finding that Berk was responsible for contractual performance and that it was in breach of contract, A&W sought to obtain judgement against Berk and to pursue associated tort actions against the hauliers (Huktra NV) and subhauliers (Stevens). Berk defended the action on the issue of causation contending that notwithstanding its breach of contract, the real cause of the explosion and the consequential losses was A&W s Predictably, this was exactly what Berk and Biachem had been arguing throughout. Equally predictably, each had contended that performance was by the other. The House of Lords rejected A&W s submission that what was important/decisive was the fact that the delivery purported to be made on behalf of Biachem. The concept of contributory negligence having no application in contract. 3

4 own gross negligence in relation to the procedures that existed for accepting these chemicals and in how those procedures were implemented by the personnel on the day 7. There were various Part 20 claims. Berk brought a Part 20 claim against Caffaro 8. However, Berk also brought Biachem back into the action as a Part 20 defendant on the basis that A&W could have pursued Biachem successfully in tort so that it (Berk) was entitled to contribution from Biachem pursuant to the provisions of the Civil Liability (Contribution) Act BERK S CLAIM AGAINST BIACHEM: BIACHEM S DEFENCE IN SUMMARY Berk claimed that Biachem was vicariously responsible for (a) Huktra s negligent mistake on 2 nd October when Huktra told Stevens to use the Biachem delivery note for what was in fact Berk s delivery of sodium chlorite. (b) The negligence of Huktra and Stevens in making the delivery with the wrong paperwork on 3 rd October. With regard to the claim in relation to the negligent mistakes of 2 nd October, Biachem argued that (i) at the time Huktra made its mistake it was acting for Berk rather than Biachem; (ii) alternatively, Huktra was not acting as the agent of either Berk or Biachem in the legal sense at that time; (iii) at that stage of the process Huktra in any case owed no actionable duty of care in dealing with paperwork which was only incidental to the principal obligation of delivery; 7 8 An issue that would have given rise to an extensive and interesting legal and factual debate but which is outside the scope of the present article. The issues in that claim have nothing to do with the subject of this article. 4

5 (iv) it could not be liable for the negligence of an independent contractor and that the activities upon which Huktra/Stevens were engaged were not extra hazardous. As regards 3 rd October, Biachem argued that (i) the House of Lords judgement was decisive of who did what for whom on 3 rd October; (ii) alternatively, Biachem could not be liable for the act of its independent contractors. It is only the independent contractor/extra hazardous activities issue which we address in this article. It should be noted that at no stage of the litigation was it seriously suggested that Huktra and Stevens were not apparently responsible and competent independent contractors. PRINCIPAL AND AGENT: THE GENERAL RULE There is no general rule of law which imposes liability upon a principal for the tort of his agent. Insofar as the law recognises any liability in such cases it is only in long established and narrowly defined activities. There is ample authority in the textbooks to substantiate that proposition. In Clerk and Lindsell (18 th Edition) at paragraph 5-72 it is... submitted... that with the exception of cases of fraud, there are no special rules in the law of tort peculiar to principal and agent. says Similarly, Professor Atiyah in Vicarious Liability in the Law of Tort (page 110) 5

6 It seems, however, very hard either to explain or justify a general principle of liability for agents in the face of the clear and universally accepted general principle of no-liability for independent contractors. The law seems to have managed perfectly well so far without imposing any general liability for agents and it is difficult to believe that the practical advantage of imposing such liability would outweigh the difficulties which would inevitably follow from doing so. Bowstead and Reynolds on Agency at Article 92:8-177 say that: (2) A principal is liable for loss or injury caused by the tort of his agent, whether or not his servant, in the following cases: (a) the wrongful act was specifically instigated, authorised or ratified by the principal; (b) if the wrongful act amounts to a breach by the principal of a duty personal to himself, liability for non performance or non observance of which cannot be avoided by delegation to another; (c) (perhaps) in the case of a statement made in the course of representing the principal made within the actual or apparent authority of the agent: and for such a statement the principal may be liable notwithstanding that it was made for the benefit of the agent alone and not for that of the principal." In Salmond on Torts (at paragraph page 434) the rule is stated thus:... When the agent is an independent contractor, his employer is not, in general, answerable for the torts either of the contractor himself or of his servants. But when the agent is a servant, his employer will answer for all torts committed in the course of the employment, whether or not the employer has obtained any benefits thereby. It is sometimes said there may be vicarious liability for the torts of agents, and the cases in which car owners have been held liable for the negligence of drivers who could not be described as servants in any normal sense of that term certainly support this view. But the main reason why this view cannot be accepted is that it would 6

7 entail every independent contractor was an agent. In any event, both the House of Lords 9 and the Court of Appeal 10 have asserted that the long established difference between the liability for the acts of a servant and the liability for the acts of an agent has not been abrogated by social changes in the fields of car ownership and industrial relations. It is for Parliament and not for the Courts to change the fundamental principles of the common law ): A similar view is taken in Winfield and Jolowicz on Tort (16 th Edition 2002 at...it has been said on high authority that, in principle, the law governing vicarious liability for servants and agents... depends upon the question Was the servant or agent acting on behalf of and within the scope of the authority conferred by the master or principal. The answer will often differ simply because the authority of a servant is usually more general. Whatever the validity of this in the field of economic torts or for matters such as fraud, it can hardly be true for liability for accidents, since it is clearly established that the principal is not liable (except in certain isolated instances) for accidents caused by the negligence of his independent contractors performing the tasks entrusted to them... PRINCIPAL S RESPONSIBILITY FOR THE TORTS OF HIS AGENT: THE RECOGNISED EXCEPTIONS In his earlier article, Professor McKendrick said (at page 780) that English law is now firmly committed to the principle that vicarious liability is dependent upon the commission of a tort by an employee in the course of his employment. Occasionally one can find cases which are difficult to reconcile with the proposition that, for liability to accrue, the employee must commit a tort but these are anomalous cases decided on pragmatic grounds and they cannot be used as a foundation for the 9 10 Morgans v Launchbury [1973] A.C Heaton s Transport v T.G.W.G. [1972] 3 WLR 73 (not considered in H.L.). 7

8 argument that all vicarious liability cases should henceforth be treated as cases of primary liability. It fair to say that there are probably three types of case in which vicarious liability for the torts in which a principal s vicarious liability for the torts of his agent have been established. Those are (i) cases in which the owner of a car asks a friend to drive it for him: Morgans v Launchbury [1973] AC 127 ; (ii) trade disputes cases: Heaton s Transport v T.G.W.U. [1973] A.C. 15; (iii) the fraud cases discussed in Clerk & Lindsell at paragraph The anomaly in respect of the car cases is explained by and must be understood in the context of the history of compulsory motor insurance 11. Trades disputes cases are explicable as a matter of public policy which developed in order to provide an effective means of dealing with industrial unrest. They cannot be - and have not been - taken to lay down general principles widely applicable to all cases whereunder a principal may be said to be liable for his agent. The fraud cases are explicable upon the basis set out at paragraph 5.72 of Clerk and Lindsell. RESPONSIBILITY FOR INDEPENDENT CONTRACTORS: THE GENERAL RULE In D & F Estates Ltd v Church Commissioners [1989] A.C. 177 Lord Bridge said this at p 208: It is trite law that the employer of an independent contractor is, in general, not liable for the negligence or other torts committed by the contractor in the course of the execution of work. To this general rule there are certain well-established exceptions or apparent exceptions... But it has rightly been said that the so-called exceptions 11 This is also the opinion of Winfield and Jolowicz - see p

9 Are not true exceptions (at least so far as the theoretical nature of the employer s liability is concerned) for they are dependent upon a finding that the employer is, himself, in breach of some duty which he personally owes to the plaintiff. The liability is thus not truly a vicarious liability and is to be distinguished from the vicarious liability of a master for his servant: See Clerk & Lindsell on Torts, 15 th ed. (1982) para. 3-37, p 185. The principle has been recently restated by the Court of Appeal in similar terms in Bottomley v Todmorden CC [2003] EWCA Civ At paragraph 20, Brooke LJ approved the principle that Simon J had identified at first instance: (i) A person who engages an independent contractor to carry out work is not liable for the negligence of the independent contractor provided that person exercised reasonable care to engage a reasonably competent contractor. RECOGNISED EXCEPTIONS TO THE GENERAL RULE In Bottomley, also at paragraph 20, Brooke LJ identified and approved a third principle: (iii) Some activities are regarded by the law as being particularly hazardous or extra-hazardous. In such cases, a duty is imposed on the employer to see that care is taken; and the employer is vicariously liable for any negligence of the independent contractor. A useful summary of the recognised exceptions to the general principle can be found in the judgement of the Court of Appeal in Alcock v Wraith [59 B.L.R. 20 and [1991] E.G.C.S Neill LJ said:. It is therefore necessary to consider some of the exceptions to the general principle 12. The main exceptions to the principle fall into the following categories: 12 That where someone employed as an independent contractor to do work on his behalf is not in the ordinary way responsible for any tort committed by the contractor in the course of the execution of the work." 9

10 (a) Cases where the employer is under some statutory duty which he cannot delegate. (b) Cases involving the withdrawal of support from neighbouring land. (c) Cases involving the escape of fire. (d) Cases involving the escape of substances, such as explosives, which have been brought onto the land and which are likely to do damage if they escape; liability will attach under the rule in Rylands v Fletcher (1868) LR3 HL (e) Cases involving operations on the highway which may cause danger to persons using the highway. (f) Cases involving non-delegable duties of an employer for the safety of his employees. (g) Cases involving extra-hazardous acts. EXTRA HAZARDOUS ACTIVITIES: HONEYWILL & STEIN V LARKIN BROS This exceptional category of extra hazardous activities depends on the decision of the Court of Appeal in Honeywill. The principle is probably best expressed as follows: an employer who instructs an independent contractor to carry out an operation which is inherently exceptionally dangerous owes a personal duty to those who might be injured by it which cannot be delegated. Slessor LJ (at page 197) referred to acts which, in their very nature involve in the eyes of the law special danger to others. 13 Note that the scope of liability under this rule was reviewed by the House of Lords in Transco plc v Stockport MBC Opinions delivered 19 th November

11 Despite academic 14 and judicial 15 misgivings, Honeywill continues to be treated as binding at least in the Court of Appeal. For example, it was expressly recognised as such by Brooke LJ in Bottomley (see particularly paragraph 31). A CATEGORY OF NON-DELEGABLE DUTY? As was explained by Professor McKendrick in his article (at pages ) extra hazardous activities, the highway cases and employers liability cases are probably best regarded as examples of non-delegable duties - that is, as cases in which the principal is directly liable rather than being liable only because of vicarious liability. Despite the respect accorded to Honeywill by Brooke LJ in Bottomley, it is noticeable that the English Courts do not ordinarily rely directly upon Honeywill. Instead, Honeywill is usually circumvented upon the basis that the defendant is held to have been under a non-delegable duty. A very good example is Salsbury v Woodland 1971 QB 324 in which Widgery LJ referred to extra hazardous acts as constituting a class of case in which there is a direct and primary duty to see that care is taken (see page 338). In Bottomley, for example, Brooke LJ (at paragraphs 49-50) recognised that these days, it may well be that the House of Lords would prefer to avoid subtle distinctions between what is and what is not extra hazardous but would prefer to concentrate on whether a duty existed (and was non-delegable) and on the standard of care. That was certainly the approach of Widgery LJ in Salsbury v Woodland. At pages he held that: It is trite law that an employer who employs an independent contractor is not vicariously responsible for the negligence of that contractor. He is not able to control the way in which the independent contractor does the work, and the vicarious obligation of a master for the negligence of his servant does not arise under the As to which see, for example, Professor McKendrick s earlier article. Particularly by the High Court of Australia in Stevens v Brodribb Sawmilling Co Proprietary Ltd [ C.L.R. 16] where the High Court of Australia held that the notion that a principal is liable for the negligence of an independent contractor on the basis that the activities he was engaged to perform were extra-hazardous has no place in Australian law - Headnote at p

12 relationship of employer and independent contractor. I think that it is entirely accepted that in those cases - and there are some - in which an employer has been held liable for injury done by the negligence of an independent contractor are in truth cases where the employer owes a direct duty to the person injured, a duty which he cannot delegate to the contractor on his behalf. The whole question here is whether the occupier is to be judged by the general rule, which would result in no liability, or whether he comes within one of the somewhat special exceptions - cases in which a direct duty to see that care is taken rests upon the employer throughout the operation. Widgery LJ went on to adopt and approve a statement of principle from Salmond on Torts in the following terms:... The mere fact that the work entrusted to the contractor is of a character which may cause damage to others unless precautions are taken is not sufficient to impose liability on the employer. There are few operations entrusted to an agent which are not capable, if due precautions are not observed, of being sources of danger and mischief to others; and if the principal was responsible for this reason alone, the distinction between servants and independent contractors would be practically eliminated from the law. At page 338, Widgery LJ continued as follows: In truth, according to the authorities, there are a number of well-determined classes of case in which this direct and primary duty upon an employer to see that care is taken exists. Two such classes are directly relevant for consideration in the present case. The first class considers what have sometimes been described as "extrahazardous acts - acts commissioned by an employer which are so hazardous in their character that the law has thought it proper to impose this direct obligation on the employer to see that care is taken. An example of such a case is Honeywill & Stein v Larkin. Other cases which one can find in the books are cases where the activity commissioned by the employer is the keeping of dangerous things within the rule in Rylands v Fletcher and where liability is not dependent on negligence at all. 12

13 I do not propose to add to the wealth of authority on this topic by attempting further to define the meaning of extra-hazardous acts ; but I am confident that the act commissioned in this present case 16 cannot come within that category. The act commissioned in the present case, if done with ordinary elementary caution by skilled men, presented no hazard to anyone at all. It may be noted that the category of extra-hazardous activities referred to in Honeywill & Stein v Larkin Bros is recognised in the United States albeit the Restatement (2d) Torts, Vol 3 (1977), s519 replaces the word ultra hazardous which was initially used with abnormally dangerous. It should, however, be borne in mind that the English Courts have demonstrated a continuing unwillingness to extend the scope of the employer s own primary duty in relation to the activities of his sub-contractors or to impose vicarious responsibility in relation to those activities. This has been demonstrated recently by the decision of the Court of Appeal in Naylor v Payling [2004] EWCA Civ 560. IS HONEYWILL IN ANY CASE INCONSISTENT WITH HIGHER AUTHORITY? Whilst Honeywill was affirmed, for example, in Salsbury v Woodland and in Bottomley, the doctrine of non-delegable responsibility for extra hazardous activities has never received the blessing of the House of Lords. Indeed, it is arguably inconsistent with at least four of its decisions. In Hughes v Percival (1883) 8 App. Cas. At p 446 Lord Blackburn restricted liability for the actions of an independent contractor to circumstances where a duty exists on the part of the person employing the contractor which cannot be discharged by the employment of someone else. That is an earlier exposition of concept of the non-delegable duty to which Widgery LJ was referring at p 337 of Salsbury v Woodland. In Daniel v Directors of the Metropolitan Railway Co (1871) 5 LRHL 45, the Claimant had been injured when a heavy iron girder fell onto a train in which he was 16 One defendant engaged another to remove a large hawthorn tree in his front garden which adjoined the highway. The contractor did so carelessly, telephone wires were broken and fell into the road causing an obstruction. 13

14 travelling. The girder was being installed by contractors engaged by the City of London adjacent to the line. As the High Court of Australia observed in Stevens v Brodribb Sawmilling Co Proprietary Ltd [ C.L.R. 16] 17, the House of Lords in Daniel held that the respondents were not liable for the negligence of their independent contractor in the performance of what on any view was an inherently dangerous operation of slinging iron girders over a railway line (per Wilson J/Dawson J at p 42 of Stevens). Instead, the House proceeded on the basis that it did not matter whether the contractors had been engaged directly by the railway company or by the City. At page 61 Lord Westbury said:... the ordinary business of life could not go on if we had not a right to rely upon things being properly done when we have committed and entrusted them to persons whose duty it is to do things of that nature, and who are selected for the purpose with prudence and care, as being experienced in the matter, and are held responsible for the execution of the work. My Lords, undoubtedly it would cause confusion in all things if you were to say that the man who employs others for the execution of such a work, or the man who is a party to the employment, has no right whatever to believe that the thing will be done carefully and well, having selected, with all prudence, proper persons to perform the work, but that he is still under an obligation to do that which, to him, in many cases, would be impossible - namely, to interpose from time to time in order to ascertain that that was done correctly and properly, the business of doing which he had rightfully and properly committed to other persons. In Rainham Chemical Works v Belvedere Fish Guano [1921] 2 AC 465 an explosion occurred at a plant manufacturing explosives. The plant was operated by a company set up by two individuals who had obtained a contract to supply explosives to the Minister of Munitions. It is hard to imagine a more hazardous activity. The company was held liable under the principles propounded in Rylands v Fletcher and one of the questions for the House of Lords was whether the individuals were also liable. Lord Buckmaster said this at p 477: 17 The High Court of Australia in that case held that the notion that a principal is liable for the negligence of an independent contractor on the basis that the activities he was engaged to perform were extra-hazardous has no place in Australian law - Headnote at p

15 The circumstances in which a contractor is liable for a subcontractor s act may not be capable of a definition which can be applied to test every variety of circumstance, but I do not think any circumstances establishing liability under this head are proved to exist in the present case. Having contracted for the manufacture of munitions, which in itself involves the possibility of explosion, it does not appear to me that liability could not be displaced by the introduction of an independent contractor. If, for example, there had been no restriction placed upon Messrs Feldman and Partridge s power to assign or enter into the contracts, and they had contracted with a well known firm of munition makers to execute the order in whole or in part upon their premises, it would, I think, be difficult to say that an explosion that took place upon those works would be an explosion for which Messrs Feldman and Partridge would have been responsible, and, for the purpose of testing liability, it does not appear to me that the restriction to which they were subject is a relevant matter. After considering cases in which employers of independent contractors had been found liable for the acts of those contractors, Lord Parmoor says this at p 490: A common factor in all these cases was some antecedent duty towards the plaintiff which could not be displaced by the employment of an independent contractor, but I agree with Younger LJ that the appellants individually owed no duty to the respondents in respect of the care of the DNP after deposit, assuming that the company were independent contractors, and that by reasonable care on their behalf danger might have been avoided. In Read v J Lyons & Co Ltd [1947] AC 156 the plaintiff inspector of munitions was injured in an explosion at a munitions factory. Again, this operation might seem very well described by the words extra hazardous. She was unable to show negligence and sought to recover in respect of her personal injuries on the basis of the doctrine in Rylands v Fletcher. Her central argument was that there should be strict liability in respect of dangerous activities such as the manufacture of munitions. The ratio of the decision of the House of Lords was that for there to be liability under Rylands v Fletcher principles there had to be an escape from the defendant s land as 15

16 well as non-natural use of that land (see Lord MacMillan at p ). The plaintiff therefore failed. The importance of the case must lie in the House of Lords rejection of the idea that there should be strict liability in respect of very dangerous activities. Lord MacMillan (at page 172) said that: In truth it is a matter of degree. Every activity in which man engages is fraught with some possible element of danger to others. Experience shows that even from acts apparently innocuous injury to others may result. The more dangerous the act the greater is the care that must be taken in performing it. This relates itself to the principle in the modern law of tort that liability exists only for consequences which a reasonable man would have foreseen. One who engages in obviously dangerous operations must be taken to know that if he does not take special precautions injury to others may very well result. In my opinion it will be impractical to frame a legal classification of things as things dangerous and things not dangerous, attaching absolute liability in the case of the former but not in the case of the latter. In a progressive world things which at one time were reckoned highly dangerous come to be regarded as reasonably safe. The first experimental flight of aviators was certainly dangerous but we are now assured that travel by air is little if at all more dangerous than a railway journey. Accordingly I am unable to accept the proposition that in law the manufacturer of high explosive shells is a dangerous operation which imposes on the manufacturer an absolute liability for any personal injuries which may be sustained in consequence of his operations. Strict liability, if you will, is imposed upon him in the sense that he must exercise a high degree of care, but that is all. The sound view, in my opinion, is that the law in all cases exacts a degree of care commensurate with the risk created. It was suggested that some operations are so intrinsically dangerous that no degree of care however scrupulous can prevent occurrence of accidents and that those who choose for their own ends to carry on such operations ought to be held to do so at their peril. If this was so, many industries would have a serious liability imposed upon them. Should it be thought that this is a reasonable liability to impose in the public interests it is for Parliament so to enact. In my opinion it is not the present law of England. 16

17 Further, Lord Simons (at p 181) said that... I would reject the idea that, if a man carries on a so-called ultra hazardous activity on his premises, the line must be drawn so as to bring him within the limit of strict liability for its consequences to all men everywhere. On the contrary, I would say that his obligation to those lawfully his premises is to be ultra cautious in carrying on his ultra hazardous activity but that it will be the task of the injured person to show that the defendant owed to him a duty of care and did not fulfil it... It was upon that line of authority that the High Court of Australia relied when declining to follow Honeywill in its decision in Stevens v Brodribb Sawmilling Company 160 CLR 160. It remains to be seen whether the House of Lords would follow that lead. Nevertheless, it does appear clear that there will at the very least be no judicial enthusiasm for expanding this category. If it survives, we expect it to be defined narrowly and restrictively. WHAT IS MEANT BY EXTRA HAZARDOUS IN THIS CONTEXT? In Honeywill, Slessor LJ (at p 200) articulated the general principle governing extra hazardous or dangerous operations thus; Even of these, it may be predicated that if carefully and skillfully performed, no harm will follow; as instances of such operations may be given those of removing support from adjoining houses, doing dangerous work on the highway, or creating fire or explosion: hence it may be said, in one sense, that such operations are not necessarily attended with risk. But the rule of liability for independent contractors acts attaches to these operations, because they are inherently dangerous and hence are done at principal employers peril. We have already seen that the issue of liability in Rainham Chemicals or Read v Lyons did not depend on the fact that the manufacture of explosives was inherently dangerous. In Honeywill, on the other hand, the independent contractors were taking photographs of the interior of the theatre by using magnesium flash powder. That was regarded as extra hazardous. 17

18 The difficulties of definition are only too apparent. As Slessor LJ made clear in Honeywill, an act which is otherwise extra hazardous does not cease to be so simply because it will not cause damage if carefully and skillfully performed. He therefore concentrated upon acts which, in their very nature, involve in the eyes of the law special danger to others; of such acts the causing of fire and explosion are obvious and established instances. But this was not a sufficient basis for liability in Rainham Chemicals or Read v Lyons. In The Pass of Ballater [1942] P.112 at page 117 Langton J spoke of implements or substances which were dangerous in themselves. It is doubtful whether this illuminates the principle or the meaning of the words any further. It may fairly be concluded that the difficulties of definition provide a very good explanation why so few decided cases have depended upon their qualification as cases of extra hazardous activities. But what of the instant case? Should the movement of dangerous chemicals be so described? Although the matter was never judicially determined, the view of the authors is that it would be very difficult to characterise transportation activities, even of dangerous chemicals, as inherently hazardous. Were it otherwise, that description would probably also be applicable to familiar activities such as the transport of fuel oil or petroleum which would be a surprising outcome. Simply because these are activities which if, inexpertly performed, could result in major danger does not make the activities themselves inherently hazardous. The actual process of working with highly volatile chemicals 18 might be a different matter. What is important, we suggest, is to look at the job for which the independent contractor has been made responsible and to consider whether the accident demonstrates that the activity was unusually dangerous or, rather, whether it simply results from the careless execution of something that could ordinarily be done reasonably safely. 18 As a matter of evidence, epichlorohydrin was not a particularly dangerous chemical to handle notwithstanding that it constituted a hazardous (toxic) load for the purposes of the national and international transport regulations. On the facts of the case, the real hazard arose once the site operator used it as an ingredient of a lethal cocktail. 18

19 On that basis, one would say that the transportation of chemicals and, a fortiori, the use of paperwork incidental to that transportation, was not inherently hazardous. CONCLUSIONS It is clear that there is no judicial enthusiasm for extending the categories on which a party is strictly liable for operations of high risk. And where such liability is imposed, it is usually upon the basis that the party undertook a non-delegable duty. This trend is clearly apparent in the opinions of the House of Lords in Cambridge Water v Eastern Counties [1994] 2 AC 264. At p 305, Lord Goff said: Like the judge in the present case, I incline to the opinion that, as a general rule, it is more appropriate for strict liability in respect of operations of high risk to be imposed by Parliament, than by the courts. If such liability is imposed by statute, the relevant activities can be identified, and those concerned can know where they stand. Furthermore, statute can where appropriate lay down precise criteria establishing the incidence and scope of such liability. It is of particular relevance that the present case is concerned with environmental pollution. The protection and preservation of the environment is.of crucial importance.public bodies, national and international, are taking significant steps towards the establishment of legislation.but it does not follow from these developments that a common law principle, such as the rule in Rylands v Fletcher, should be developed or rendered more strict to provide for liability in respect of such pollution. On the contrary, given that so much well-informed and carefully structured legislation 19 is now being put in place for this purpose, there is less need for the courts to develop a common law principle to achieve the same end, and indeed it may well be undesirable that they should do so. 19 It is clear from Marcic v Thames Water [2003] 3 WLR 163 that the Courts are reluctant to impose or extend common law principles of liability where there already exists a satisfactory regulatory regime. 19

20 Naylor v Payling [2004] EWCA Civ 560 and A and B v Ministry of Defence [2004] EWCA Civ 641 similarly demonstrate how there needs to be a special reason of policy before the Courts will impose a non-delegable duty. Extra hazardous activities as a discrete category may well not survive close analysis should the issue come before the House of Lords although they did decline to follow the Australian example 20 and treat the rule in Rylands v Fletcher as entirely absorbed within the law of negligence when the point was argued in Transco plc v Stockport MBC 21. Whatever the House of Lords does, it is the view of the author that the scope of this category is now so limited that it is very unlikely that any future English case will be decided solely upon the basis that the activity in question can be described as extra hazardous. It is very much more likely that the Courts will prefer to base their decisions upon concepts of direct responsibility for occupancy or activity duties or on those arising out of a relationship of employer and employee The decision of the majority in the High Court of Australia in Bernie Port Authority v General Jones Property (1994) 120 ALR 42 Notwithstanding that there appears to have been no reported case in the last 50 years where a claimant has succeeded solely under the rule in Rylands v Fletcher. 20