Gwilliam v. West Hertfordshire Hospital NHS

"Gwilliam v. West Hertfordshire Hospital NHS" [2002] EWCA Civ 1041; [2003] Q.B. 443 is an English tort law case concerning occupiers' liability under the Occupiers' Liability Act 1957. It also raises the question of whether the duty of care should encompass a duty to enquire into the insurance status of contractors for dangerous activities.

Facts

Ethel Gwilliam, age 63, went to an NHS organised fun fair, at Mount Vernon Hospital in Northwood, Middlesex, where there was a "splat wall". Waller LJ in his account of the facts described it as follows. "The aim of the apparatus was to allow the participant to bounce from a trampoline and adhere by means of Velcro material to a wall." [ [2003] Q.B. 443, 451] In other words, you get dressed in a velcro costume, bounce on the trampoline and then go "splat" onto the wall. Unfortunately Ms Gwilliam was injured, because the splat wall had been set up negligently. The hospital had got the splat wall through an independent contractor called "Club Entertainment" by looking them up in the phone book. It turned out that the contractor's public liability insurance had expired just a few days before the event.

Ms Gwilliam had settled a claim against the contractor for £5000 compensation for her injuries. This figure reflected the fact that the contractor was probably not in a position to pay much more. She then sued the NHS trust for the difference between that sum and the full compensation that she could have got, on the basis that they did not provide a safe environment for her as a visitor, and that they failed properly to enquire into the contractor's insurance status.

Judgment

Lord Woolf MR and Waller LJ both held that under s.2(2) of the Occupiers' Liability Act 1957, the Trust had failed in its duty to ensure that the apparatus was reasonably safe for the purpose of Ms Gwilliam's visit.

They also both agreed, "obiter dicta", that reasonable steps to check a contractor’s insurance status are necessary. Here the Trust had inquired into the contractor's insurance status, which would have been enough to satisfy that test for liability, even though they had not actually checked the policy document itself, which was in fact unsound.

Dissent

Sedley LJ concurred in the result of the case (that the Trust was liable) but dissented on the "obiter" statements concerning insurance. He said that if there was a duty of care, it would be a logical and factual leap to include inquiry into insurance into the duty of care. That would not be fair, just and reasonable.

ee also

*Negligence

Notes