G. Can an occupier avoid liability where the negligence is caused by an independent contractor engaged by the occupier?
Sometimes an occupier hires an independent contractor to carry out construction, maintenance, or repair work.
If a visitor is injured because of the independent contractor’s faulty work, the occupier is not automatically liable. An occupier’s liability for the acts of independent contractors is characterized by a “delegable” duty. This means that an occupier is generally not answerable for dangers created by a contractor’s faulty work if he acted reasonably in delegating that work and took steps to ensure it was performed competently.
Under section 3(4)(b) of the Occupiers Liability Ordinance (Cap. 314), the occupier may avoid liability if, in all the circumstances, the occupier:
- acted reasonably in entrusting the work to an independent contractor;
- took reasonable steps to satisfy himself that the contractor was competent; and
- took reasonable steps, where appropriate, to check that the work was properly done.
In Hong Kong cases, this has been expressed as a practical four-part inquiry:
- Was it reasonable to entrust the work to a contractor?
- Was reasonable care used in selecting the contractor?
- Were reasonable steps taken to supervise the work?
- Was reasonable care taken to check the work was properly done?
Where the work is particularly technical or complex, the occupier may need to take expert advice or arrange an appropriate inspection to satisfy itself that the contractor is competent and that the work has been properly done. In some cases, the occupier may have to engage a properly qualified professional to oversee the independent contractor’s work.
In one case, the owner of a block of flats was not held liable for a visitor’s injury caused by a defective lift because the task of maintaining a lift required specialised technical skill. The occupier discharged his duty by employing a firm of competent engineers to perform the maintenance.
Despite hiring a contractor, an occupier may still be liable if, for example:
- the occupier knew or ought to have known of unusual dangers on the premises that the contractor was unfamiliar with and failed to warn the contractor;
- the occupier interfered with or dictated the method of the contractor’s work, creating a hazard;
- the occupier remained in overall control of the premises or site and failed to address obvious hazards created during the work; or
the case was not really about faulty execution of the work at all.
