Essex County Council & Ors v Davies & Ors

A landlord acting as landlord is not an occupier under the Occupiers’ Liability Act 1957 and owes no statutory duty under section 2 to the tenant or the tenant’s visitors. That rule applies to commercial as well as residential premises, and is not displaced by the landlord undertaking maintenance or retaining access. On appeal, assessments of general damages are disturbed only for an error of principle or an award outside the bounds of reasonableness. Part 36 costs consequences are the default unless unjust, and appellate interference with discretionary enhanced interest orders is exceptional.

Employees of a further-education college suffered injuries from prolonged carbon monoxide exposure at premises occupied by the college. The County Court held the college and its landlords liable under the Occupiers’ Liability Act 1957, awarded damages, and imposed enhanced Part 36 costs consequences.

The landlords appealed on the application of Cavalier v Pope. All appellants challenged the damages awards and the order for interest on costs. The central issues were whether the landlords were occupiers, whether the damages assessments were appealable, and whether the Part 36 discretion had been properly exercised.

1. Cavalier v Pope appeal allowed. The claims against Essex County Council and the Governing Body were dismissed. The college remained liable as the occupier.
2. A landlord acting qua landlord does not owe the tenant or the tenant’s visitors a duty of care as an occupier under the Occupiers’ Liability Act 1957. This follows from the binding rule in Cavalier v Pope, which remains applicable even where the landlord undertakes maintenance or regularly exercises rights of entry.
3. The rule is not confined to residential premises. A large commercial site, common representation or insurance, employment of caretakers, maintenance of the whole site, access to the premises, and the landlord’s role as local education authority did not establish occupation or provide a proper basis for distinction. The question of occupation is one of control, but the landlord’s maintenance activities did not amount to the relevant control.
4. The 1957 Act replaced different categories of occupier’s duty with a uniform common duty of care. It did not alter the common-law rules identifying who owes that duty. A landlord’s tortious duty is instead found in the Defective Premises Act 1972, not section 2 of the 1957 Act.
5. Damages appeal dismissed. The trial judge had evaluated extensive factual, medical and occupational evidence and was in a unique position to assess the injuries. The awards could not be disturbed merely because they might be generous. No applicable standard demonstrated that they fell outside the bounds of reasonableness.
6. Interest on costs appeal dismissed. Under CPR 36.17, the specified consequences follow unless unjust. The appellate challenge required an error of law or principle, or an irrational exercise of discretion. The judge was entitled to take account of the parties’ conduct, including the aggressive conduct of the litigation, and to award interest on costs at 10 per cent above base rate. Such appeals should be rare.

• Central London County Court: His Honour Judge Roberts entered judgment for the respondents following a trial, finding the college and the two landlords liable and making damages and Part 36 costs orders.
• High Court (Queen’s Bench Division): The landlords’ Cavalier v Pope appeal was allowed and the claims against them dismissed. The damages and interest on costs appeals were dismissed. Consequential orders were reserved.