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Maguire v Sefton Metropolitan Borough Council and Precor Products Limited, Court of Appeal, 23 February 2006

13 April 2006
The issues


Occupiers liability – leisure centre – exercise equipment.


The facts

The claimant was using an exercise machine manufactured by second defendant Precor at a leisure centre operated by Sefton Metropolitan Council, the first defendants. Mr Maguire was using the machine when the pedals failed all of a sudden to provide the resistance which was the point of the exercise, causing him to be thrown backwards off the machine. He was not seriously injured and quantum was agreed in the sum of £2,545.00. He sued both defendants. As against the first defendant he alleged claims in contract and under the Occupiers Liability Act 1957. As against the second defendant he brought a claim for breach of a duty of care in negligence. The County Court Judge found all three causes of action proved. The first defendant appealed.


The decision

The claimant paid a fee for the use of the leisure centre and was therefore a visitor under contract. The judge implied a strict term amounting to a warranty that any machine used by visitors at the leisure centre were “safe to be used”. On the basis of factual findings the council was in breach of that strict and absolute term. The judge did not explain why it was that the term he implied into the contract was not in the terms of Section 5 of the Occupiers Liability Act ie in terms of the common duty of care.

(Section 5 – Headed Implied of the Occupiers Liability Act 1957, headed Implied Term in Contract, provides “1. Where persons enter or use, or bring or send goods to, any premises in exercise of a right referred by contract with a person occupying or having control of the premises, the duty he owes to them in respect of dangers due to the state of the premises or to things done or omitted to be done on them, in so far as the duty depends on the terms being implied in the contract by reason of its inferring that right, shall be the common duty of care.”)

The only authority on the operation of the section was the decision of Swanwick J in Sole v W J Hallt Ltd in 1973. The purpose of the section was designed to reduce what was at common law, the higher duty of an occupier owed to people entering by right of contract and to equate them with other visitors. The Law Reform Committee in its report in November 1954 made it clear that it did not favour a distinction in the content of the duty to be owed by an occupier to a visitor dependant on whether the visitor came onto the premises pursuant to a contract or not.

It was clear that Section 5 of the Act was meant to do away with all previous distinctions. The content of the contractually implied term in the absence of contrary agreement was exactly the same as the duty for which Section 2 of the Occupier’s Liability Act provided. The effect of that was to make it clear that the implied was to take steps such that the warranty given by an occupier was not a warranty that is independent contractor if he used one consistently with the common duty of care provided for in Section 2, would himself take care. On this ground therefore the appeal had to be allowed.

The remaining issue related to the council’s common law duty of care. Six weeks or so before the incident the machine in question had been inspected by Precor who were a competent independent contractor for the purposes of inspecting and maintaining the equipment. On the evidence before the judge this equipment was regarded as robust and “maintenance light”. The judge found that the inspection by Precor was deficient. The question remained whether the deficiency of that inspection rendered the council as well as Precor liable.

On the fact there was no reason and the judge had given no reason for the conclusion that the council was to be criticised for the deficiency of the inspection. The council was entitled to rely upon Precor as the experts to form a proper inspection. There was nothing in the evidence to suggest the council had any reason to contemplate that the inspection would be limited, partial, unsatisfactory or deficient. There was nothing about what was known or might have been known by the council about the machines to suggest that they were sensitive or likely to go wrong. The Appeal would be allowed on this ground as well.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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