Date: Tue, 24 Aug 2004 19:00:08 -0400

From: Jason Neyers

Subject: Independent Contractors and Insurance

Dear Colleagues:

For those of you interested in the effect that insurance should have on liability will be interested in the English Court of Appeal’s decidedly strange decision in Gwilliam v. West Hertfordshire Hospital NHS Trust & Ors [2003] Q.B. 443 (CA). In that case, the majority of the CA held that in order to discharge the common duty of care under section 2 of the Occupiers' Liability Act 1957, the Hospital was under an obligation to inquire into the insurance position of independent contractors who were operating a “splat wall” at a fund raising event. Waller LJ went so far as to say that to run such an event even with the most well-qualified and respected independent contractor was a breach of the standard of care if the occupier had not inquired as to the insurance coverage of the contractor because those who might be injured would have to be compensated. The majority found that the standard had been met on the facts. Sedley LJ agreed as to the result but dissented (rightly on my view) as to the existence of any such duty which he called “unprecedented”.

Cheers,

--
Jason Neyers
Assistant Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435

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