Lough v The Intruder Detention & Surveillance Fire & Security Ltd & Anor

Under the Occupiers’ Liability Act 1957, an occupier owes a personal duty to take reasonable care, in all the circumstances, to make visitors reasonably safe for permitted purposes. Another person’s responsibility for the visitor’s safety does not by itself discharge that duty. A warning may be inadequate where the danger is an unguarded staircase or landing and includes the risk of an inadvertent false step. Where occupier and employer both contribute to the injury, responsibility must reflect blameworthiness and relative causative effect. The Court of Appeal held the occupier liable for 25% of the responsibility.

John Lough, an apprentice alarm engineer, was injured when he fell from an unguarded landing while working at premises occupied by Robert Fulton. His employer settled his personal injury claim and sought a contribution from Mr Fulton under section 2 of the Occupiers’ Liability Act 1957.

The Newcastle-upon-Tyne County Court held that Mr Fulton had not breached his duty. Alternatively, it apportioned 100% responsibility to the employer. The appeal concerned whether the judge had properly applied the statutory common duty of care and, if Mr Fulton was liable, how responsibility should be apportioned.

Appeal allowed. Lady Justice Smith gave the principal judgment, with Lady Justice Arden and Sir Andrew Morritt agreeing.

1. The statutory question was whether Mr Fulton had taken such care as was reasonable in all the circumstances to ensure that the claimant was reasonably safe while using the premises for the purposes for which he had been permitted to be there. The trial judge had focused predominantly on the actions and responsibility of the employer’s representative, Mr Smith. That approach failed to address the occupier’s personal duty under the Occupiers’ Liability Act 1957.
2. The fact that another person also owed duties to the visitor under different legislation or common-law rules was relevant, but could not by itself absolve the occupier. Mr Fulton had permitted the men to enter and go upstairs while knowing that the staircase and landing were dangerous.
3. The warning given was insufficient. It could not make the claimant reasonably safe against the danger of an inadvertent false step on an unguarded staircase or landing. Mr Fulton was therefore in breach of his common duty of care.
4. The extent to which one visitor may reasonably be expected to supervise another can be relevant. For example, an occupier may be entitled to expect a supervisor to prevent an apprentice from climbing onto an unguarded windowsill. That consideration did not answer the risk of an inadvertent false step in this case.
5. Apportionment had to reflect both blameworthiness and relative causative effect. The causative effect was broadly similar because both the employer’s representative and Mr Fulton permitted use of the dangerous staircase. The employer nevertheless bore the greater responsibility because Mr Smith was directly responsible for the claimant’s safety and knowingly proceeded with the work. Mr Fulton’s responsibility was mitigated by the unexpected attendance of the workmen, the impracticability of reinstating the barriers immediately, and Mr Smith’s attempt to persuade him to allow entry.

Responsibility was apportioned 25% to Mr Fulton and 75% to the employer. The County Court’s alternative apportionment was set aside and an order substituting that allocation was made.

• Court of Appeal (Civil Division) allowed the appeal and substituted an order that Mr Fulton bear 25% of the responsibility: [2008] EWCA Civ 1009.
• Newcastle-upon-Tyne County Court, HHJ Cartlidge, made an order on 4 December 2007 holding that the occupier was not in breach of duty and, alternatively, apportioning 100% responsibility to the employer. No citation is stated in the judgment.