UK Court of Appeal Limits Liability for Independent Contractors

July 2004

Live Concert Industry

Payling v Naylor t/a Mainstream

In a welcome judgement, the Court of Appeal have limited the liability of venue owners, promoters and nightclub’s to ensure that their contractors have public liability insurance. In Payling v Naylor (Times Law Reports, 2 June 2004) the Court held that whilst there was a duty on a club owner to take reasonable steps to ensure that any contractor engaged security services was competent, there was no free-standing duty, except in exceptional circumstances th ensure that the contractor had public liability insurance. In the earlier decision of Bottomley v Secretary & Members of Todmorden Cricket Club (Law Updates November 2003) the court had held that there was a duty on a venue owner who allowed dangerous practices on his land (pyrotechnics) to ensure that a subcontractor was had public liability insurance. The Court of Appeal in this case could understand that the lack of public liability insurance might be a relevant factor in assessing the competence of a contractor; However and overturning a judgement by Judge Murphy QC, the Court felt that as the security firm were licensed, accredited and approved under a scheme operated by the local authority and the police. The club’s public entertainment licence required the nightclub to use door security staff accredited under the scheme. The nightclub had had a significant period in which to assess the competence of the security firm. However, Lord Justice Neuberger qualified what might be ‘special circumstances’ by saying these might be where the nightclub owner was under a duty to insure himself or where insurance would be for the proper protection of the public.

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