Eden v West & Company

Under the Occupiers Liability Act 1957, an occupier who knows of a concealed structural danger must warn an experienced independent contractor where the contractor is unaware of it and nothing on site indicates the risk. The professional-user qualification does not permit reliance on a contractor’s general skill unless the danger is shown to be a special risk ordinarily incident to the calling. The absence of a lintel above a window in an ostensibly well-constructed mid-20th-century house was not such a risk without an admission or expert evidence. Where precise earnings evidence is inadequate, the court must still assess damages on the available evidence, including by making a global award.

An experienced self-employed joiner was injured while replacing a window at a house managed by the respondents. The window frame and bricks above it collapsed because the house had no lintel. The respondents’ manager knew that some houses on the estate lacked lintels, but the claimant did not, and he had not been warned.

His Honour Judge Armitage QC dismissed the claim under the Occupiers Liability Act 1957, finding that a competent contractor could be expected to deal with the possible absence of a lintel. He also made no award for loss of earnings. The appeal concerned the occupiers’ duty to warn, contributory negligence, and the assessment of earnings loss.

1. Appeal allowed. The respondents owed the claimant the common duty of care under section 2(2) of the Occupiers Liability Act 1957. They knew that the property might lack a lintel. The claimant did not know of that possibility, and nothing at the property alerted him to it. The respondents should therefore have warned him.
2. Section 2(3)(b) did not justify the dismissal of the claim. The absence of a lintel in an ostensibly well-constructed mid-20th-century house could not be treated as a special risk ordinarily incident to a joiner’s calling without an admission or expert evidence. The claimant’s ability to deal safely with the danger if warned did not establish that he knew or ought to have known of it.
3. The necessary inference could not be drawn merely from the common presence of lintels, the experience of other contractors, or their having worked on similar properties without injury. The relevant proposition had not been put to the claimant and was unsupported by evidence.
4. There was no evidential basis for contributory negligence. The allegation that the claimant knew the construction of the window failed.
5. The judge had been too robust in refusing any earnings award. The claimant’s unchallenged evidence that he had been working, the recent payment of £3,405 for two months’ labour, and the agreed medical evidence established a basis for assessment. A global award of £5,000 for the first six months and £1,000 for the following six months was appropriate. Total damages were £16,672, with interest to be agreed. Costs here and below were assessed by agreement at £16,000 including VAT.

• Court of Appeal (Civil Division): In [2002] EWCA Civ 991, dated 27 June 2002, the court unanimously allowed the appeal, found a breach of occupiers’ duty, and awarded damages of £16,672.
• Manchester County Court: His Honour Judge Armitage QC dismissed the personal injury claim on 31 January 2002 and refused to award loss of earnings. The appeal was brought from that decision.