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Slips, trips and independent contractors

05 September 2022 Donald Dinnie, Norton Rose Fulbright
Donald Dinnie, Norton Rose Fulbright

Donald Dinnie, Norton Rose Fulbright

This blog was co-authored by: Carly Lakin, Candidate Attorney

In this judgment the court considered whether the principal was be liable for the negligence of an independent contractor.

An attorney at the Gqeberha Magistrates’ Court, he slipped on a wet floor and sustained injuries. He instituted action against the Minister of Public Works & Infrastructure as the custodian of the building, and Minister of Justice & Constitutional Development, as the occupier. He contended that the defendants were under a legal duty to him, and the public at large, to ensure that the areas of the building are safe and free of obvious hazards which would pose a risk to members of the public.

The Minister of Public Works admitted this legal duty, but disavowed liability on the basis that they had concluded a contract with an independent contractor to provide cleaning services to the magistrates’ court. A cleaner of the contractor had left the floor slippery and failed to put up a warning sign.

In our law, the general rule is that a principal is not liable for the wrongs committed by an independent contractor or its employees. The exception to that rule is if the principal has been negligent itself in regard to the conduct of the independent contractor which caused harm.

Our courts have cautioned against extending the liability of a principal for the negligence of an independent contractor which would efface the distinction between employee and independent contractor.

The defendants as custodian of the building and occupier of the building were under a legal duty to the plaintiff and the public at large to ensure that the buildings including the floors of the buildings and passageways for which they were responsible were safe and free of obvious hazards which would pose a risk to members of the public.

The question to be determined was whether the defendants had taken steps to guard against the dangers

The defendants argued that they had discharged their legal duty by their appointment of an independent contractor to attend to the cleaning.

On enquiry the court held that the defendants had failed to take reasonable steps to guard against foreseeable harm to the public and the plaintiff.

The defendants merely contented themselves with the appointment of the cleaning contractor. The defendants knew seemingly little about the independent contractors and sat back and did no more upon appointment except for their financial risk assessment during the bid evaluation adjudication process.

The financial risk assessment conducted by the first defendant fell far short of establishing that the contractor was a competent and professional independent contractor. They did not meet with the cleaning supervisors nor personally inspect the services being delivered.

The defendants distanced themselves from the cleaning functions of the court building. The first defendant only conducted a once-a-month meeting to consider the services being delivered and took no further steps to satisfy themselves with regard to the performance of the appointed independent contractors performing the cleaning services.

The court distinguished the situation from the cases where the principal took further steps than merely satisfying themselves with the appointment of independent contractors to perform the cleaning services.

Judgment was granted against both defendants.

The outcome is not surprising bearing in mind that the defendants were content simply to appoint an independent contractor to carry out cleaning but then did nothing to ensure that the terms of that contract were complied with and effectively carried out.

Carly Lakin with Donald Dinnie

First published by Financial Institutions Legal Snapshot

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