Old distinction between

work on movables

and immovables examined.

[ante, p. Ɛo.]

I B. & P. 404.

6 T. R. 411.

A very common application of this rule occurs in cases where repairs to a house have been executed, and damage to a neighbouring house or to a passer-by has been the result. And on this account a distinction was for some time supposed to exist between contracts for work to immovable property and contracts relating to immovables. This distinction was indeed said to exist by Littledale, J., in Laugher v. Pointer, but it has since been frequently pointed out to be erroneous. The decisions which have been based upon it are nevertheless not necessarily erroneous.

The distinction between such a case and Laugher v. Pointer seems to have been felt, and also that the owner ought to be responsible; but the true ground of liability was missed. Bush v. Steinman was the first case in which the principle took definite form, and although it has been repeatedly declared to be bad law, it will be instructive shortly to consider the facts of the case. A. had a house, and contracted with B. to repair it: B. contracted with C. to do the work: C. with D. to furnish the materials. D.'s servants placed the materials in the road and the plaintiff's carriage was upset. The Court held A. liable, but Eyre, C.J., confessed that he found some difficulty in stating accurately the grounds of liability. Of the earlier cases, Stone v. Cart2 H. Bl: 267, wright and Littledale v. Lonsdale were quoted with approval as applicable to the case. The former certainly was not. The owner of a mine was there held answerable for the negliv. Pointer, ante, gence of the persons employed by the steward. The facts of the latter case are not very clear from the report. It seems however that "Lord Lonsdale's colliery was worked in such a manner by his agents and servants that an injury was done to the plaintiff's house, and his lordship was held responsible." The Chief Justice added, however, "or possibly by the contractors, for that would have made no difference:" this answered the point in dispute in the case before the Court. Another case was put : 'Suppose then that the owner of a house, with a view to rebuild or repair, employ his own servants

299.

[cf: Littledale, J., in Laugher

p. 80.]

to erect a hord in the street (which being for the benefit of the public they may lawfully do), and they carry it out so far as to encroach unreasonably on the highway, it is clear that the owner would be guilty of a nuisance, and I apprehend that he would be equally guilty if he had contracted with a person to do it for a certain sum of money, instead of employing his own servants for the purpose; for in contemplation of law the erection of the hord would equally be his act." This bringing the argument a step nearer the case, the final step was taken, and the determination that A. was liable was arrived at, which was characterised as "certainly highly convenient, and beneficial to the public."

and

N. S. 470.

Where a duty has to be performed, liability for nonperformance because it has is not excused, not been done

The liability of the owner in the hypothetical case put by Eyre, C.J., is undoubted, and it is in conformity with the decision in Pickard v. Smith. The defendant, having em- 10 C. B: ployed a coal merchant to put coals in his cellar, was held liable for injury suffered by the plaintiff from his falling through the cellar opening which had been left open by the negligence of the coal merchant's servants. Williams, J., said the ordinary rule of exemption is inapplicable to cases in which the act which occasions the injury is one which the contractor is employed to do; nor, by a parity of reasoning, to cases in which the contractor is entrusted with the performance of a duty incumbent upon his employer, neglects its fulfilment, whereby an injury is occasioned." Gray v. Pullen the latter part of the rule was applied. Act of Parliament having authorised the cutting a trench across a highway for the purpose of making a drain, but having attached to the exercise of the right the condition of filling up the trench after the drain had been completed, the defendant employed a contractor to do the whole work; the re-filling was done negligently, and the plaintiff's wife sustained personal injury. The rule was laid down in the Exchequer Chamber that "where a work is being executed from which danger may arise to others, and it thereby becomes incumbent on the party doing or ordering it to be done to take measures

In

by contractor who has been employed, nor by his servants.

An

5 B. & S. 970.

6 H. & N. 488.

General rule as to liability of principal for acts of

contractor or his servants.

[ante, p. 92.]

I Q. B. D. 321.

Examples of general rule.

Case of sup port of adjoining houses.

to prevent damage resulting to others, he cannot divest himself of liability by transferring the duty to a contractor." (See also Hole v. Sittingbourne Ry. Co.)

There are therefore these two principles governing the liability of the person for whom work is done. He who orders the doing of an act which is of itself productive of injury is liable whether he has done it by his own servants or by a contractor or by a contractor's servants. He who has a duty to perform cannot shift the duty on to the shoulders of another, and is liable for its non-performance, although the fault may be directly attributable to another who has contracted to do it.

It is obvious that nothing in this statement of the law has any special application to immovable property. Reverting for a moment to Bush v. Steinman; the placing the materials in an unguarded manner in the highway was not the work which was contracted to be done: nor was there any special duty laid on the owner of the house, any more than in any other case of work done by contract, to see that the contractor's servants worked without negligence, merely because the work was being done to immovable property. The defendant's liability can therefore be judged of according to the rules already laid down.

Three well-known recent illustrations of the general rule may be shortly referred to.

The plaintiff and defendant in Bower v. Peate were owners of two adjoining houses, the plaintiff being entitled to the support, for his house, of the defendant's soil. The defendant employed a contractor to pull down his house, excavate the foundations, and rebuild the house. The plaintiff's house was injured in the progress of the work, owing to the means taken by the contractor to support it being insufficient. The defendant was held liable, because he had ordered work to be executed from which, in the natural course of

things, injurious consequences to his neighbour must have been expected to arise unless means were adopted by which such consequences might have been prevented; he was therefore bound to see to the doing of that which was necessary to prevent the mischief, and could not relieve himself from responsibility by employing someone else to do what was necessary to prevent the act he had ordered from becoming wrongful.

740.

Indemnity from contrac

tor no excuse :

it only gives a right over against him.

In Dalton v. Angus, under almost identical circumstances, L. R. 6 H. L. one of the defences was held bad on the same principle: the question of indemnity having been taken from the contractor was also considered. Lord Blackburn said that the person on whom the duty was cast might "bargain with the contractor that he shall perform the duty and stipulate for an indemnity from him if it is not performed, but he cannot thereby relieve himself from liability to those injured by the failure to perform it."

443.

Again, in Hughes v. Percival the same principle was acted 8 App: Ca: on-the question arising as to the use of party walls. Some doubt was thrown by Lord Blackburn on the principle laid down in Bower v. Peate given above, as to whether it was not too broad, and might possibly include in its application the carriage cases, and consequently conflict with Quarman V. [ante, p 81.] Burnett. It seems, however, clear that running over people, or into other carriages, are not injurious consequences arising in the natural course of things from hiring a carriage.

On the same principle, if the owner of a house or land allows a noxious trade to be carried on in or upon it by one who is not a tenant, he will himself be liable, by virtue of the duty laid on all so to use their own property as not to injure the rights of others. (Per Parke, B.: Reedie v. North 4 Ex: at p. Western Ry. Co.)

One further point must be noticed: it is really an application of the general rules, but is frequently stated in another

form.

256.

Liability for work after it

contractor's

is finished.

I Q. B. D. 314.

Where the

tort is the act of the contractor and not of his

servants, it would seem

that the principal is liable.

[ante, p. 78.]

[ante, p. 79.]

9 M. & W. 710.

After the work has been taken over from the contractor by the principal, he is supposed to have adopted the work with all its faults, and is liable for any injury that may result from the negligent workmanship.

Thus in Tarry v. Ashton a lamp overhanging a highway was out of repair: as occupier of the house a duty was cast upon the defendant, from time to time, to investigate the state of the lamp. Being aware that it was out of repair he employed a contractor to do it: the jury found that he was not a servant but an independent contractor. The Court found, consequently, that the defendant having the duty, and having trusted the fulfilment of it to another who had not done it, was liable for the consequences of its falling on a passer-by. It must be confessed that it seems perfectly immaterial at what time the accident happened, whether during the work or after it was finished. In either case the defendant would have been liable, by reason of the duty left unperformed.

(v.) Liability for the Torts of Contractors.

We have confined the second section to contracts for services to be rendered by third parties, who are in effect the contractor's servants. There is room to doubt whether the same principles apply where the tort is the act of the contractor, or sub-contractor, himself: that is to say, whether the relation of master and servant, or principal and agent, does not exist independently of the existence of a special contract to do a certain work. Where the contract is compulsory, as we have seen, for special reasons, the relation is not assumed to exist; but Sadler v. Henlock is an authority in favour of the relation existing and consequent liability of the person for whom the work is done where the contract is not compulsory. In Rapson v. Cubitt the committee of a club contracted with A., a builder, to execute repairs to, among other things, some gas fittings; A. contracted with B., a gas-fitter, to do the gas