Bottomley v Todmorden Cricket Club

An occupier’s statutory occupancy duties under the Occupiers’ Liability Act 1957 do not displace its common-law activity duties. An occupier which permits a dangerous pyrotechnic display for its benefit must take reasonable care to select a competent and safe operator. In special circumstances, that duty can extend to a person assisting the contractor. Foreseeability, proximity, and whether liability is fair, just and reasonable support that conclusion. Failure to make elementary checks into safety planning and competence, with insurance relevant to that inquiry, may establish breach.

The claimant was seriously injured while volunteering to assist Chaos Encounter, a two-person stunt team, at the cricket club’s fundraising bonfire event. He was placing a charge of black powder into a petrol-filled mortar when it ignited and exploded.

Simon J entered judgment against the club and against the stunt team members. He held that the club had failed to take reasonable care in selecting a competent contractor. He also held it vicariously liable on the basis that the display was extra-hazardous.

The club appealed. It contended that the Occupiers’ Liability Act 1957 had superseded the relevant common-law authority, that its selection of the stunt team was reasonable, and that it owed no relevant duty to a person assisting the independent contractors.

Disposition

1. The Court of Appeal unanimously dismissed the appeal.

2. The Occupiers’ Liability Act 1957 replaced common-law rules concerning an occupier’s occupancy duties only. Following Fairchild v Glenhaven Funeral Services Ltd [2001] EWCA Civ 1881, the court held that the Act did not weaken the activity-duty principle in Honeywill & Stein Ltd v Larkin Brothers Ltd [1934] 1 KB 191. That conclusion disposed of the club’s first ground, although the appeal did not ultimately depend on the Honeywill line of authority.

3. There was ample evidence for Simon J’s finding that the club had not taken reasonable care in selecting Chaos Encounter. It knew that a dangerous pyrotechnic display would occur, yet made no proper inquiry into the team’s safety plan, competence, or insurance. Reasonable inquiries would have exposed serious deficiencies and would have prevented the event, or required safety arrangements that would probably have prevented the accident.

4. The club owed the claimant a direct duty of care despite his position as an unpaid assistant to the independent contractors. As recognised in Ferguson v Welsh [1987] 1 WLR 1553, special circumstances may make an occupier liable alongside the contractor. The dangerous activity was allowed on the club’s land for its benefit, without ordinary safeguards. Injury was foreseeable in the absence of a proper safety plan, the claimant was lawfully present and sufficiently proximate, and it was fair, just and reasonable to impose liability.

5. The court did not decide whether there was a free-standing duty to ascertain insurance or viability. Waller LJ nevertheless clarified that Gwilliam v West Hertfordshire Hospital NHS Trust [2002] EWCA Civ 1041 should not be understood as showing disagreement that such a duty existed on that case’s facts; the difference concerned the legal route to the result. Brooke LJ also observed, without deciding the point, that a future reconsideration of the extra-hazardous activity doctrine might prefer a heightened standard of care within an existing duty.

• Court of Appeal (Civil Division): The club’s appeal was dismissed: [2003] EWCA Civ 1575.

• Queen’s Bench Division, Manchester District Registry: On 18 December 2002, Simon J entered judgment for the claimant against the club and the two stunt-team members, with damages to be assessed.