Adele Shtern v Monica Cummings

Under the Occupiers Liability Act, occupier status depends on control of the premises, not ownership alone. More than one person may be an occupier, and the scope of each duty depends on the nature and extent of that person’s control. An owner without operational responsibility for a hotel is not liable as an occupier for the safety of appliances used in its ordinary business. Ownership of an appliance does not itself create an occupier’s duty. Separate negligence liability might arise if the owner supplied equipment known to be dangerous without warning the operator. An appellate court may reject a belated pleading argument where the pleadings are ambiguous, the issue was live at trial, and no clear miscarriage of justice is shown.

The appellant suffered an electric shock when she opened a refrigerator in a hotel office in Jamaica. The trial judge accepted her account but found that the cause of the accident could not be established and dismissed the claim. The Court of Appeal reversed the dismissal against the hotel company but upheld it against the respondent, the landowner and controlling director, holding that she was not an occupier because she lacked operational control of the hotel. The appeal concerned whether the pleadings admitted that status and whether ownership of the land or refrigerator imposed a relevant duty of care under the Occupiers Liability Act or at common law.

1. Appeal dismissed. The Board advised Her Majesty that the appellant’s appeal should be dismissed.
2. The respondent’s pleading was ambiguous because the statement of claim advanced alternative allegations and the defence did not clearly admit that she was an occupier. The appellant could have sought clarification but did not do so. The respondent’s witness statement and the parties’ written submissions showed that occupier status was treated as a live issue at trial. The pleading argument was therefore rightly rejected, particularly since an appellate court should be slow to intervene on such a procedural matter without a clear miscarriage of justice.
3. The points concerning negligence and breach of statutory duty were indistinguishable. The Occupiers Liability Act did not alter the common-law rules identifying who owed an occupier’s duty or to whom it was owed. It replaced different duties owed to different classes of visitor with a uniform common duty of care to all lawful visitors. The Board applied the principles explained in Wheat v E Lacon & Co Ltd [1966] AC 552: occupier status depends on control, more than one person may be an occupier, and the nature and extent of the duty may vary with the sphere of control.
4. The company operated the hotel and controlled its staff and day-to-day business. The respondent’s ownership of the land did not make her operationally responsible for the hotel. Even assuming that ownership gave her some control over structural matters, the accident concerned an appliance used in the ordinary running of the business, not the hotel’s structure. Her ownership of the refrigerator likewise created no occupier’s duty.
5. If an owner supplied a refrigerator known to be dangerous and failed to warn the hotel staff, a separate negligence liability might arise. That hypothetical basis of liability was not engaged on the facts. It was unnecessary to determine the further argument concerning the sufficiency of the evidence about the accident.

1. Privy Council — In [2014] UKPC 18, dismissed the appellant’s appeal.
2. Court of Appeal of Jamaica — Reversed the dismissal of the claim against the hotel company but upheld dismissal of the claim against the respondent.
3. Supreme Court of Jamaica — Lawrence-Beswick J dismissed the appellant’s claim after finding that the cause of the accident could not be determined.