Maguire v Sefton Metropolitan Borough Council & Anor

Under the Occupiers' Liability Act 1957, a person using premises under a contract receives the statutory common duty of care. Unless the contract provides otherwise, the occupier gives no strict warranty that equipment is safe. Section 5 replaces earlier distinctions between contractual and non-contractual visitors. An occupier may reasonably rely on a competent independent contractor to inspect and maintain equipment where the circumstances give no reason to anticipate inadequate work or require special supervision. Fault by the contractor does not automatically make the occupier liable. Appeal allowed.

Mr Maguire was injured when an exercise machine at a leisure centre operated by Sefton Metropolitan Borough Council suddenly lost resistance. He sued the council in contract and under the Occupiers' Liability Act 1957, and sued Precor Products Limited in negligence.

The Liverpool County Court found both defendants liable and entered judgment for agreed damages of £2,545. The council alone appealed. The issues were whether the council owed a strict contractual term that the machine was safe and whether it had breached its statutory common duty of care by relying on Precor's pre-contract inspection and maintenance arrangements.

1. Appeal allowed. The council was not liable either in contract or under the Occupiers' Liability Act 1957.
2. Section 5(1) makes the duty owed to a person entering or using premises under a contract the statutory common duty of care in respect of dangers arising from the state of the premises or from things done or omitted there. Section 5(2) applies the provision to fixed and movable structures, including the exercise machine. The contractual term therefore had the same content as the duty under section 2, subject to contrary agreement. The trial judge erred in implying a strict warranty that the machine was safe.
3. Section 5 was intended to replace the former common-law distinctions concerning contractual entrants. Earlier authorities, including Francis v Cockrell [1870] LR 5 QB 501, MacLenan v Segar [1917] 2 KB 325 and Gillmore v London County Council [1938] 4 All ER 331, could not justify a stricter contractual obligation under the statutory code. Sole v WJ Hallt Limited [1973] QB 574 was consistent with that construction.
4. The common duty required reasonable care in all the circumstances to ensure that the visitor was reasonably safe. Section 2(4)(b) gave an example concerning faulty work by an independent contractor. The council had chosen a competent contractor which was effectively the manufacturer and supplier of the machines. There was no evidence that the machines were unusually sensitive or likely to fail, or that the council had reason to anticipate a limited or deficient inspection. The council was therefore entitled to rely on Precor and had no duty to impose special control or supervision.
5. Lord Justice Rix expressed the view that Precor might itself owe a duty in tort for a negligent pre-contract inspection, even if undertaken for its own purposes. That observation was unnecessary to the council's appeal. The possible distinction between occupier duties and activity duties was also left undecided because it was not pursued. Lord Justices Carnwath and Jacob agreed with the result.

1. Court of Appeal (Civil Division) allowed the council's appeal and acquitted it of liability in contract and under the Occupiers' Liability Act 1957.
2. Liverpool County Court, in a judgment dated 16 December 2004, found the council liable in contract and under the Act, and found Precor liable in negligence. Damages were agreed at £2,545.