Lough v The Intruder Detention & Surveillance Fire & Security Ltd & Anor

This is an appeal from an order made in contribution proceedings by HHJ Cartlidge on 4 December 2007 in the Newcastle County Court. Permission to appeal was granted by Gage LJ. In the main action Mr John Lough sued his employer, Intruder Detection and Surveillance Fire and Security Limited, for personal injuries sustained on 27 May 2003 when he fell from an unguarded landing at the domestic premises at which he was working. His claim was settled on the basis that his employer was liable, subject to a deduction of 5% for his contributory negligence. The employer then sought a contribution from Mr Robert Fulton, the occupier of Picktree Manor, the domestic premises at which the accident occurred.

It is necessary to describe the scene of the accident and the events which preceded it. As its name implies, the defendant employer is a company which designs and installs security systems. The claimant was employed by the defendant as an apprentice alarm engineer. The defendant had contracted to install a security system at the home of Mr Fulton. Fulfilment of the contract required the attendance of the employer’s engineers on a number of occasions. Mr Fulton was undertaking a major refurbishment of his home, one aspect of which was the removal of the old staircase, the fitting of a new staircase of a completely new design and the installation of a wrought iron banister at the side of the staircase and extending, as a balustrade, across the landing at the top of the stairs. After the installation of the new staircase but before the fitting of the new banister and balustrade, temporary safety barriers were fitted alongside the staircase and across the open edge of the landing.

On 26 May 2003, the relevant staircase contractors removed the temporary barriers and carried out a trial fitting of the new banister and balustrade. They then removed the new banister and balustrade to take away for cosmetic finishing. They were to be permanently installed two or three days later. Before they left, Mr Fulton told them that they need not put the temporary barriers back in place. He so decided despite the fact that he and his family were living in the house and, as the judge apparently accepted, without them the staircase and landing were unsafe.

The following morning the defendant’s engineer, Mr Mark Smith, arrived at Picktree Manor with two apprentices, including the claimant, to carry out some work on the alarm installation contract. It appears that at least some of the work was to be done upstairs. They were greeted by Mr Fulton, who had not expected them to arrive that day. He told them that he did not wish them to work at the premises that day. His wife and family did not wish to be disrupted by workmen. That was how the case was pleaded in the third party defence. In evidence Mr Fulton was to suggest, somewhat obliquely, that he had been reluctant to let the men in because “things were not in the state they should be”. However, the judge held that the reason for Mr Fulton’s objection was to safeguard his family’s privacy. Following Mr Fulton’s initial objection, there was a discussion in which Mr Smith said that the team (himself and the two apprentices) had no other work to do. Eventually Mr Fulton said that they could come in. He did not say that they could not go upstairs; indeed it appears that he contemplated that they would or might do so, as he warned them that the staircase and landing were unguarded -- a fact which was plain to see. Mr O’Sullivan, who appears today for Mr Fulton, accepted that, in effect, he had given the men permission to go upstairs. Mr Fulton then left them to get on with their work. He was not involved in supervising it in any way.

Sometime later the claimant, who had been working upstairs, decided to come down. Exactly what happened is not entirely clear because he never had to give evidence, but in some way he fell from the top of the stairs or the landing to the hall floor below, a distance of about three metres. He suffered quite serious injuries. He sued his employers, alleging breaches of various statutory duties, which amounted in summary to an allegation that his place of work had been unsafe, as it manifestly was. The employer, in turn, sued the occupier, alleging a breach of section 2 of the Occupiers’ Liability Act 1957 which provides:

“(1)

An occupier of premises owes the same duty, the “common duty of care”, to all his visitors, except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise.

(2)

The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

(3)

The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases –

(a)

an occupier must be prepared for children to be less careful than adults; and

(b)

an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so.

(4)

In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) --

(a)

where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe; and

(b)

where damage is caused to a visitor by a danger due to the faulty execution of any work of construction, maintenance or repair by an independent contractor employed by the occupier, the occupier is not to be treated without more as answerable for the danger if in all the circumstances he had acted reasonably in entrusting the work to an independent contractor and had taken such steps (if any) as he reasonably ought in order to satisfy himself that the contractor was competent and that the work had been properly done.

(5)

The common duty of care does not impose on an occupier any obligation to a visitor in respect of risks willingly accepted as his by the visitor (the question whether a risk was so accepted to be decided on the same principles as in other cases in which one person owes a duty of care to another).”

The occupier (Mr Fulton) admitted that the claimant was a visitor to the premises for the purposes of the Act. He must therefore have accepted that he owed the claimant a duty of care. He denied that he was in breach of that duty. Although he pleaded that he had fulfilled his duty by issuing a warning as to the danger, the judge held that the warning was not sufficient to absolve him from liability. That holding has not been challenged by way of respondent’s notice or cross-appeal in these proceedings.

At the trial, Mr Elgot for the employer submitted that the duty on Mr Fulton was higher than would rest on an ordinary domestic occupier because he was an experienced developer of premises and was directly instructing all the contractors involved in the refurbishment of his house. The judge rejected that submission and held that Mr Fulton was in the same position as an ordinary householder who admitted workmen to his home. The judge held that the occupier had not been in breach of duty. In approaching that question he reminded himself first that he had to consider all the circumstances of the case, and that decisions in the instant type of case depended on their individual facts. In the alternative to his holding that there had been no breach of duty, the judge held that if there had been a breach of duty, and if it had been necessary for him to apportion responsibility as between the occupier and the defendant, he would have held the defendant 100% to blame.

In this appeal, Mr Elgot for the appellant submitted that the judge had fallen into error in two respects. First, he had erred in the way in which he considered the occupier’s breach of duty. He should have found a breach and, having so found, he should have found Mr Fulton responsible for the claimant’s injuries to some extent. Mr O’Sullivan submitted that the judge had been entitled to make the findings of fact and had not erred in law. In respect of this issue, it is necessary to examine the judge’s reasoning at paragraphs 7 and 10 of his judgment. At paragraph 7 he said:

“I cannot see that the decision not to reinstate the temporary barrier can of itself render the third party liable for the claimant’s accident. The defendants may have been ‘coming backwards and forward’ as the third party put it in evidence, but the plain thrust of his account was that he had no expectation that the defendants would attend before the banister was erected finally. He did not ask them to come. He did not want workmen in the house pending installation of the banister. It may be that the third party’s wife or children would have an unanswerable claim, because the barrier was not immediately reinstated, had any of them been injured in a similar way to the claimant. These folk had I suspect no option, but to be in the house while the staircase remained in the condition Chapmans left it and may have a legitimate criticism of the third party [I interpose to say that Chapmans were the contractors responsible for the installation of the staircase].”

At paragraph 10 the judge said:

“I am required to consider all the circumstances. These include the fact that it was the defendants who gave Mr Smith the task of supervising the apprentices. It was the defendants and their representative Mr Smith who bore the statutory obligations canvassed in the claimant’s particulars of claim. Mr Smith could see the state of the staircase and balcony. He had as much knowledge about the state of the premises as the third party. There was no hidden danger. Indeed the condition of the staircase and balcony was obvious to anyone entering the premises. Mr Smith was free to leave. The third party was discouraging him from remaining. Mr Smith could have ordered the apprentices to confine themselves to the ground floor. If there was any economic or business pressure encouraging Mr Smith to work at the premises, he should have resisted it. He could have obtained advice from more senior managers if he was concerned about such pressure. The third party had in the situation which existed no supervisory role to play. He had no reason to suppose Mr Smith was in any way incompetent. I do not find that the third party had a higher duty than an ordinary householder because he did up student properties and was developing his own home, grand as he may have considered it to be. I need hardly add that every case is different and most of these types of cases are decided on their own particular facts.”

Mr Elgot submitted that the judge had erred because he focused, particularly in paragraph 10, upon what Mr Smith had done and his responsibility, instead of focusing on what Mr Fulton had done or not done and whether, in all the circumstances, he had done that which was reasonable, to see that the claimant was reasonably safe in using the premises for the purposes for which he was permitted to be there. In respect of the point in paragraph 10, at which the judge turned from Mr Smith’s actions to those of Mr Fulton, Mr Elgot submitted that the judge had not grappled even then with the statutory question. He considered only whether Mr Fulton had a supervisory role to play. Mr Elgot would have us say that he did have a supervisory role because he was his own main contractor, but the judge had rejected that, saying that Mr Fulton’s duty was like any other occupier.

Mr O’Sullivan submitted that the judge was entitled to take all of those factors into account. Indeed, he could take all the circumstances into account. Both Mr O’Sullivan and Mr Elgot cited authorities to us, but I for my part did not find these to be of any assistance. The question whether an occupier is in breach of the common duty of care requires the application of the statutory provision to the facts and circumstances of the case. In general, as here, authority will be of little assistance.

I accept Mr Elgot’s submission that the judge did not properly focus on the statutory question. His reasoning, particularly in paragraph 10, focused almost entirely on an examination of Mr Smith’s actions and responsibility. In effect, he was saying that because Mr Smith was responsible, Mr Fulton was not. That limited approach negates the requirements of the Act. I am far from saying that the presence and responsibility of another party is irrelevant to the question of the occupier’s breach of duty, but it is not enough to focus solely on the actions and responsibility of another party, as in this case on that of Mr Smith. The Act imposes a personal duty on the occupier unless he excludes it by agreement or otherwise. The fact that someone else is also responsible for the visitor’s safety under different legislation, or under different rules of common law, does not answer the question of whether the occupier has breached his personal duty. Nowhere in paragraph 10 did the judge apply his mind to what care Mr Fulton had taken for the claimant’s safety and what care it was reasonable to expect him to take in the circumstances.

In my view, Mr Fulton did breach his common duty of care towards the claimant. He had played a significant role in these events. He had permitted the men to enter and to go upstairs, well knowing that the stairs and landing were dangerous. The warning he gave was not sufficient to make the claimant reasonably safe. In particular it could not protect him from the kind of danger which arises on an unguarded staircase or landing, namely the danger that the visitor will inadvertently make a false step.

In the circumstances of this case, the fact that the claimant was with Mr Smith, who was the representative of his employer, had duties of his own towards the claimant, could not of itself amount to a reason why the occupier was absolved of his personal duty. I do accept that there will be cases in which the extent to which one visitor may reasonably be expected to supervise the actions of another will be highly relevant to the question of whether the occupier has breached his duty of care. For example, where a supervised apprentice climbs out onto an unguarded windowsill, the occupier might properly say that he was entitled to expect the supervisor to prevent the apprentice from doing such a dangerous thing. But here no amount of supervision will prevent a visitor -- whether an apprentice or a supervisor or a member of the occupier’s family --from making the kind of inadvertent false step, which can so easily lead to an accident on an unguarded staircase or landing.

Thus, in my view, the judge’s reasoning in respect of breach of duty was flawed and, had he considered the question properly, he would have concluded that there was a breach. The breach consisted of permitting the claimant to use the staircase and landing when he knew that they were dangerous.

It is necessary, therefore, to consider the judge’s alternative holding that, if there were a breach, he would apportion all the blame to the employer. An apportionment of this kind must be carried out so as to reflect the blameworthiness and the relative causative effect of the breaches of duty of the respective parties. The judge did not mention causative potency, but focused on blameworthiness. Mr O’Sullivan submits that that was a correct approach, because the causative effect of each party’s actions in the present case was broadly the same. Both made a decision to permit the claimant to use the staircase and landing while dangerous, and it was those decisions which led to the accident. I would accept that submission and agree that the apportionment in this case must be approached by reference to blameworthiness.

The judge’s holding that the employer was entirely to blame was made in the wake of a finding that there was no breach of duty -- a factor which, as it seems to me, must have influenced the judge’s mind. In my view it will be a very rare case indeed in which there can be a finding of breach of duty coupled with no responsibility at all. I do not say that it is impossible, but I cannot at present imagine circumstances in which such a finding would be appropriate.

So, while recognising that an assessment made by a judge must not lightly be interfered with, it does seem to me that there is a good reason to re-examine the judge’s assessment of the apportionment of responsibility. Mr Elgot submitted that the occupier should bear the greater share of the responsibility. He submitted that the occupier should carry two-thirds of liability. He it was, submitted Mr Elgot, who was responsible for the creation of the danger, in that he permitted the staircase contractors to leave the staircase and landing unguarded. His experience as a developer was relevant to his blameworthiness in this context, even if not to his breach of duty. As for the decision to allow the men to enter, his decision was the more blameworthy, as he was the one who could have insisted and could have refused permission. He should not be given credit for trying to dissuade Mr Smith from entering, because he did not seek to dissuade him on safety grounds, only on grounds of privacy. Mr Smith should bear less responsibility because he faced a dilemma. He had work to do and was anxious to get on with it. His decision was understandable and therefore less blameworthy.

Mr O’Sullivan submitted that the judge had been right to hold the employer’s wholly to blame, but, if Mr Fulton was to blame at all, his responsibility was much less than that of the employers. He relied on all the factors set out by the judge in paragraph 10 and I would accept that those factors are relevant in this context. Mr O’Sullivan submitted that the employer had a raft of statutory duties relating to risk assessment, the provision of a safe place of work and a safe means of access, the provision of safety equipment and matters of that kind. He was primarily responsible for the claimant’s safety. Even after the occupier had admitted the men, Mr Smith could have assessed the situation and then decided that it was not safe to work upstairs. If in doubt, he could have consulted his superiors at the defendant’s offices. The defendant, submitted Mr O’Sullivan, had called no evidence as to what training or instruction they had given their engineers (such as Mr Smith) and Mr Smith had not given evidence as to his thinking or reasoning or as to any pressure he was under. Mr O’Sullivan invited us to draw adverse inferences as to Mr Smith’s and the defendant’s blameworthiness.

I would accept that, for the reasons that the judge gave in paragraph 10 to which I referred above, the employer must bear the lion’s share of responsibility. Mr Smith could see the danger, and on that day he was directly responsible for the safety of the claimant. He knew, or should have realised, the extent of the risk, especially after he had been admitted to the premises. The evidence showed that he wanted to press on with the work and it appears that he decided to do so without seeking any instructions from his employers after giving them an explanation of the condition of the premises. As he did not give evidence, I am not prepared to accept, without such evidence, that he was under any kind of pressure or that he was on the horns of a dilemma. On the other hand, Mr Fulton was not expecting the workmen to arrive. He was taken by surprise. It was not practicable to have the safety barriers put in place at such short notice. He had been in error in not having them re-erected on the previous day, but the gravity of that error was mitigated in that he had not been expecting any workmen to work indoors during the short period before the permanent banisters were to be put in place. Another factor was that he could not practicably restrict the men to working downstairs, because, as appears from Mr Smith’s statement, which was before the judge, their work required them to go up to the first floor. Mr Fulton wanted to discourage the men from entering. That was not on safety grounds but because he did not wish his family to be disturbed. But for whatever reason, he was opposed to their entry. His main fault was that he could (and should) have refused to let the men in; Mr Smith was not in a position to insist. However, Mr Smith attempted to persuade him and, to my mind, that provides some mitigation of Mr Fulton’s fault in that respect.

Taking all of those factors into account and applying what must necessarily be a broad brush approach to the question of apportionment, I have come to the conclusion that an appropriate apportionment is that Mr Fulton should bear 25% of the responsibility to pay the claimant’s damages. Accordingly, I would allow the appeal to that extent and substitute an order to that effect.

I agree.

I also agree.