Ross Honeybourne v Ian Burgess and Others - Court of
Session 15 November 2005
Mr. Burgess was employed as a bouncer by Stephen Allan who had a
contract with the Jaffa Nightclub in Edinburgh to provide security
services. Mr. Burgess assaulted Mr Honeybourne by throwing him out
of the club, causing him to sustain severe injuries. It was a
matter of agreement between the parties that the Nightclub had not
checked Stephen Allan's competency to provide security or if he
held public liability insurance - which he did not. The case
proceeded to debate on the Nightclub's argument that Mr
Honeybourne's pleadings regarding previous assaults by Mr. Burgess
and other security guards prior to the events complained of were
vague and unspecific and that the conviction of Mr. Burgess for
assault post-dated the event.
Furthermore, they argued that Mr Honeybourne's legal case, based
on the Occupiers Liability (Scotland) Act 1960 and common law was
irrelevant.
The Court held that the Act applied to dangers arising from both
the physical state of the premises and activities carried out there
and did not apply in these circumstances. They further held
"...there is no Scottish authority to the effect that the
occupier who enters into a contract with an independent contractor
to perform some activity owes the duty to those who enter on to
those premises to check the insurance position of an independent
contractor at any time". A number of English authorities were
distinguished on the basis that the equivalent English legislation
specifically required an occupier to take reasonable steps to
satisfy themselves that independent contractors carrying out works
on their premises were competent, but that this did not extend to
support the proposition that the occupier should satisfy themselves
that the independent contractor had insurance cover. The Court
further dismissed as irrelevant the argument that the Nightclub had
a duty to impose fresh contractual conditions on Stephen Allan in
relation to how his employees conducted themselves after the
contract commenced.
The case was dismissed against the Nightclub. This decision can
be hailed as a significant victory for occupiers in restricting the
duties owed to those entering their premises.