Roles v Nathan

Under the Occupiers' Liability Act 1957, the common duty of care depends on all the circumstances, including the care ordinarily expected from the visitor. An occupier may expect a specialist to appreciate and guard against special risks ordinarily incident to the specialist’s calling, so far as the specialist is free to do so. A warning does not automatically absolve the occupier. It is sufficient only where it enables the visitor to remain reasonably safe. Repeated warnings and an available safe course meant that the occupier discharged his duty to chimney sweeps exposed to fumes from a boiler and flue.

Two chimney sweeps died from carbon monoxide fumes while attempting to seal a sweep-hole in the basement of the Manchester Assembly Rooms. Their widows sued the occupier under the Occupiers' Liability Act 1957. Mr Justice Elwes found negligence by the occupier’s agent, but reduced damages by half for the sweeps’ contributory negligence. The defendants appealed, arguing that the sweeps were specialists who had been repeatedly warned of the danger and that the occupier was not liable. The central issues were the effect of the specialist-visitor provision and whether the warnings were enough to discharge the common duty of care.

1. The majority, Lord Denning MR and Lord Justice Harman, allowed the appeal, set aside the judgment below and entered judgment for the defendants. Lord Justice Pearson dissented and would have dismissed the appeal.
2. Under section 2(3)(b) of the Occupiers' Liability Act 1957, an occupier may expect a person exercising a calling to appreciate and guard against special risks ordinarily incident to that calling, so far as the occupier leaves the person free to do so. The majority treated the danger from fumes in the flues as a risk which chimney sweeps should have appreciated and guarded against. The sweeps had been repeatedly warned and were free to wait until the fire was out before completing the work.
3. Section 2(4)(a) does not make a warning automatically sufficient. The question is whether, in all the circumstances, it enabled the visitor to be reasonably safe. The majority held that it did so here. The sweeps could have followed the warnings, postponed the work, ensured that the fire was out, or avoided remaining in the alcove for too long. The occupier had therefore discharged the common duty of care.
4. Lord Denning MR relied on Christmas v Caledonian Club, [1952] 1 KB 141, as remaining good law under the new Act. He treated the broad understanding of Horton v London Graving Dock, [1951] AC 737, as displaced for the statutory warning question, referring also to Greene v Chelsea Borough Council, [1954] 2 QB 127. A warning is effective where the visitor can act on it to avoid the danger.
5. Pearson LJ considered the risk extraordinary rather than ordinarily incident to the sweeps’ calling. In his view, the occupier’s agents had created the danger by lighting the fire before sealing the vents, so the sweeps could not make themselves reasonably safe merely by following the warnings.

The appeal was allowed. Judgment below was set aside and judgment entered for the defendants. There was no order for costs. Leave to appeal to the House of Lords was refused.

• Court of Appeal: Allowed the defendants’ appeal, set aside the judgment below and entered judgment for the defendants.
• Manchester Assizes, before Mr Justice Elwes: Found the occupier liable through his agent’s negligence, but reduced damages by half for the chimney sweeps’ contributory negligence.