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Lough v Intruder Detention & Surveillance Fire & Security Ltd & Anor, Court of Appeal, 26 June 2008

26 September 2008
The issues

Occupiers Liability – Employers Liability – apportionment of blame between owner of domestic premises and employer, when employee had accident on domestic premises.

The facts

The Claimant, John Lough, sued his employer, Intruder Detection, for personal injuries when he fell from an unguarded landing at the domestic premises on which he was working on the 27th May 2003. His claim was settled on the basis that his employer was liable, subject to a contribution of 5% for contributory negligence. The employer then sought a contribution from the owner of Picktree manor, the premises where the accident occurred, Mr Robert Fulton. Mr Fulton was engaged in refurbishing his home. One aspect of that related to the removal of the old staircase and the fitting of a new staircase. The new staircase had been fitted but the new banister and balustrade had not been fitted. Temporary safety barriers were therefore put alongside the staircase and across the open edge of the landing. On the 26th May 2003 the staircase contractors removed the temporary barriers and carried out a trial fitting of the new banister and balustrade. They then took them away to finish, prior to permanently installing them 2 or 3 days later. Mr Fulton told the contractors that they did not need to put the temporary barriers back in place. He decided this notwithstanding the fact that he and his family were living in the house and that without them the staircase and landing were unsafe. On the 27th May 2003 the Defendant’s engineer, who had been contracted to install a security system at Mr Fulton’s house, arrived with two apprentices, one of whom was the Claimant. Mr Fulton did not expect them on that day and initially told them to go away. There was a discussion and eventually Mr Fulton relented and let them in. He warned them that the staircase and landing were unguarded. He apparently knew that it was likely that they would do some work upstairs. The Claimant was working upstairs and at some point decided to come down. He fell about 3 meters, suffering serious injuries. The employer sought a contribution from Mr Fulton on the basis of Mr Fulton’s obligations under the Occupier’s Liability Act. The Judge found that Mr Fulton was not in breach. The employer appealed.

The decision

The Judge had not properly focused his mind on the right question. His reasoning had focused on the responsibility of Mr Smith. In doing so he seemed to have assumed that if Mr Smith was responsible, Mr Fulton was not. That approach negated the approach of the Occupier’s Liability Act. The presence and responsibility of another party was not irrelevant to the question of the occupier’s breach of duty, but it was not enough to focus solely on the actions and responsibilities of another party. The Act imposed a personal duty on the occupier unless he excluded it, by agreement or otherwise. The fact that someone else was also responsible for a visitor’s safety under different legislation or under different rules of common law did not answer the question of whether the occupier had breached his personal duty.

In the view of the Court, Mr Fulton had breached his common duty of care towards the Claimant. He had permitted the men to enter and to go upstairs while knowing that the stairs and landing were dangerous. The warning he had given was not sufficient to make the Claimant reasonably safe and in particular it could not protect him from the kind of danger which arose on a unguarded staircase or landing, namely the danger that a visitor would inadvertently make a false step. Whilst the Court accepted that there would be cases in which the extent to which one visitor might reasonably be expected to supervise the actions of another would be highly relevant to the question of whether the occupier had breached his duty of care, this was not such a case. Such a case as the Court gave as an example was a situation where a supervised apprentice climbed onto an unguarded window sill. In such circumstances the occupier might properly say that he was entitled to expect the supervisor to prevent the apprentice from doing such a dangerous thing.

Here the employer must bear the lion’s share of responsibility. Mr Smith could see the danger and on the day he was directly responsible for the safety of the Claimant. He knew, or should have known, the extent of the risk. The evidence had been that he had wanted to press on with his work and that he did so without seeking instructions from his employer. An appropriate apportionment was 75% to the employer and 25% to Mr Fulton.

Appeal allowed to that extent.

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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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