Control and Warnings under the 1957 Act: A Recent Decision from the High Court

The recent decision in Mathewson v Crump & Crump [2020] EWHC 3167 (QB) concerned a claim under the Occupiers’ Liability Act 1957. In determining the claim, two particularly interesting features arose:

1. First, there was the fundamental issue of whether the Defendants had control over the property which the Claimant was visiting at the material time such as to make them ‘occupiers’ under the Act.
2. Secondly, whether, if the Defendants were occupiers, they had a defence under section 2(3)(b) of the Act on the basis that the Claimant was an experienced tradesman attending the site in the exercise of his calling, who had been warned of the danger on the premises sufficiently for the purposes of section 2(4)(a).

The judgment can be accessed here.

The Facts

The property in question was a house renovation project. The First Defendant was the owner of the property but had never resided there. She had engaged her father-in-law’s building firm, CK2, to lead the refurbishment of the property. The Second Defendant was the husband of the First Defendant who became a co-owner of the property in 2018 but who also worked on the renovation.

The Claimant attended the property in order to give a plastering quote on 16 January 2016; he had previously attended the property on two other prior occasions to do some work. He was on the first floor when he stepped on a piece of chipboard which was covering an opening for a stairwell. The chipboard gave way and the Claimant fell through to the ground floor sustaining a serious wrist injury in the process. He alleged that the Defendants were ‘occupiers’ for the purposes of the Act and were liable to him under section 2(2). 

Who is an Occupier?

Both Defendants denied being occupiers on the basis that though they owned the property, neither had the necessary degree of control over it at the material time, and they averred that the only occupier, for the purposes of the Act, was CK2.

In assessing who was an ‘occupier’, Dan Squires QC (sitting as a Deputy High Court Judge) postulated thus at [17]-[18]:

“Whether a person is an “occupier” is thus determined by the rules of common law. The most obvious “occupier” at common law will be an owner-occupier who both owns and occupies a premises. But it is clear that being the owner of a premises is neither a necessary requirement for occupation, nor sufficient to establish it. A person can be the owner of a property without occupying it, and can occupy it without owning it.

“The question at common law is whether an individual has a “sufficient degree of control over premises to put him under a duty of care towards those who came lawfully on to the premises” (Wheat v E Lacon & Co Ltd [1996] AC 552, 577G per Lord Denning). As is apparent, there is a degree of circularity in the definition. It suggests that a person owes a duty at common law (and now under the OLA 1957) if they have sufficient control to be under such a duty. In essence the law requires a normative judgment. It asks whether a person has sufficient control over premises for it to be reasonable to impose a duty on them, to expect them to appreciate potential risks on the premises and to take reasonable care to protect those coming to the premises from such risks.“

On the basis of the factual evidence before the Court, it was determined that neither Defendant was an occupier at the time of the accident and that the sole occupier was indeed CK2. The reasoning of the court was based on the fact that it had been CK2 who had contacted contractors and sourced materials for the work and it was they who appeared to be co-ordinating the works. The Second Defendant had more of an active role than the First Defendant, in providing jobs and services to assist CK2, but his role had been akin to that of a sub-contractor to CK2 and he still lacked sufficient control. 

Was an Adequate Warning Given?

A finding of fact was made which preferred the Defendants’ evidence over that of the Claimant, so that he had been warned that the chipboard in question was unsupported and was a hazard. It was further considered by the Court that the risk should have been obvious to the Claimant.

Furthermore, and perhaps most importantly, the Court considered that the verbal warnings which were given to the Claimant were sufficient to discharge their duty of care under the Act. The Court held as follows at [85]:

“Both the provision of a warning and the Claimant’s particular professional skills are matters I am entitled to consider in determining whether sufficient care had been taken to see that the Claimant was reasonably safe (see OLA 1957 ss 2(3)(b) and 2(4)(a)). In my view it would have been obvious to the Claimant when he arrived that the stairwell between the floors was in the middle of being cut through and that it was not safe to stand on the chipboard in that area. I also consider he was warned it was not safe. I consider that was sufficient to discharge the duty of care owed to a visitor with the Claimant’s skills and experience of building construction.“

Following on from this finding the Court went further still to hold that in proceeding as he did, in spite of the adequate warning given and the obvious state of danger which he was presented with, the Claimant voluntarily assumed the risk of injury; see as follows from [88]:

“I consider that when he ascended the ladder the Claimant was aware of the risk if he were to place his weight on the chipboard in the stairwell area. He wished to give the quote for plastering and did not want to have to return at some later time. He chose to take the risk believing he would be able to avoid it. As set out above, he did successfully avoid it when he ascended the ladder, but unfortunately he did not do so when he came to descend. That was a risk that he voluntarily assumed and cannot therefore hold the Defendants liable for it.” 

Discussion

Mathewson is a useful decision which sets out the various aspects of the duties of care, and the statutory defences which are available under the 1957 Act. It is correct that the decision turned on its own facts, particularly in relation to the core issues of control and whether adequate warning was given. That only serves to demonstrate the need for comprehensive evidence to be obtained wherever possible, and how important contemporaneous evidence, in the form of documents and the like is in cases which turn on factual findings.

A particularly interesting aspect is the issue of warnings. The Court found that in assessing whether a warning was adequate, the characteristics of the visitor do affect matters. In short, a warning to an experienced contractor entering the type of building site he would have entered on numerous occasions in the past, may be adequate, whereas the same warning may have been inadequate for a visitor who was not in that position or who did not have that experience.

It is suggested that the most important point to take away, in that regard, is the importance of properly pleading the basis for an allegation on behalf of a Claimant, or the basis of a statutory defence on behalf of a Defendant. It is that pleading, which is likely to set the factual basis moving forward, and the way in which investigations will take shape.