Furmedge & Ors v Chester -Le -Street District Council

A party may be an occupier without exclusive control. Physical involvement in constructing, erecting and supervising a public structure may create both occupier status and a direct duty of care. Contribution is apportioned on a just and equitable basis, principally by reference to fault and causative responsibility, with relevant non-causative breaches also capable of affecting the result.

The Council and Brouhaha International Ltd disputed their respective responsibility for compensation following the fatal failure of an inflatable public art structure. The Council accepted liability for failing to scrutinise an inadequate risk assessment. Brouhaha denied owing visitors a duty of care, arguing that it had merely supplied labour under the designer’s supervision. The issues were whether Brouhaha was an occupier or otherwise owed a duty of care, and how responsibility should be apportioned under section 2(1) of the Civil Liability (Contribution) Act 1978.

Brouhaha was an occupier of the structure and owed visitors a direct duty of care. Its employees had helped construct, transport, erect and supervise the structure, and had controlled entry and conduct inside it. Those activities cumulatively amounted to sufficient physical control; mere stewarding labour alone would not have sufficed.

Brouhaha should also have recognised that the designer’s risk assessment was inadequate and that the structure had shown instability in windy conditions. The designer remained independent, so Brouhaha was not vicariously liable for his conduct.

Under section 2(1) of the Civil Liability (Contribution) Act 1978, the court assessed seriousness of fault, causative potency and relevant non-causative breaches. The Council’s systems failure was serious and significantly causative. Brouhaha’s direct knowledge from the earlier exhibition justified a modestly greater share. Responsibility was apportioned 45 per cent to the Council and 55 per cent to Brouhaha.