Mathewson v Crump & Anor

Under the Occupiers Liability Act 1957, occupation depends on sufficient control of premises, not ownership alone. A construction company may be the sole occupier where the owner has surrendered practical control during substantial building works. The status of an experienced tradesperson may affect the content of the common duty of care, but does not eliminate the duty. A warning and the obviousness of a danger may together discharge that duty. A visitor who knowingly and voluntarily accepts a particular risk may also be met by the statutory form of volenti. Fundamental dishonesty requires dishonesty going to the root or a substantial part of the claim.

The claimant, an experienced plasterer, was injured after falling through partially cut chipboard at a property undergoing conversion from a bungalow into a two-storey house. He claimed against the owner and her husband under the Occupiers Liability Act 1957 and in negligence.

The owner did not live at the property and rarely attended it. The husband assisted his father’s construction company, CK2 Construction Ltd, which managed the works, controlled access and engaged subcontractors. The issues were whether either defendant was an occupier, whether any duty had been breached, whether the claimant voluntarily accepted the risk, and whether the claim was fundamentally dishonest.

1. Claim dismissed. Neither defendant was liable. CK2 Construction Ltd was the occupier because it controlled the conversion works, the premises and access to them. The owner had not lived at or exercised sufficient control over the property. The husband’s greater involvement than an ordinary subcontractor did not give him sufficient control to make him an occupier.
2. Occupation is a question of fact and degree. Ownership is neither necessary nor sufficient. More than one person may occupy premises, but a builder may become the sole occupier where the owner has handed over control to such an extent that the owner cannot reasonably be expected to supervise the state of the premises or control access.
3. Although the breach issue did not strictly arise, the court found that no duty would have been breached even if either defendant had been an occupier. The claimant was probably warned not to ascend through the hatch while the stairwell was being cut out, and the danger of standing on unsupported chipboard was obvious to an experienced plasterer. Under sections 2(3)(b) and 2(4)(a) of the Occupiers Liability Act 1957, the claimant’s expertise and the warning were relevant to whether reasonable care had been taken. The defendants were not required physically to prevent him from ascending.
4. The claimant willingly accepted the relevant risk for the purposes of section 2(5). He understood the danger, chose to proceed so that he could provide a quotation, and could have avoided the risk but failed to do so while descending.
5. The negligence claim was not made out. Any common-law duty concerning a failure to warn was unnecessary to determine, and there would have been no breach for the same reasons.
6. The claim was not dismissed for fundamental dishonesty under section 57 of the Criminal Justice and Courts Act 2015, because the claimant had not been found entitled to damages and the trial had not determined quantum. For costs purposes, however, the court held that fundamental dishonesty requires dishonesty going to the root or a substantial part of the claim. The claimant’s disputed evidence did not meet that threshold.