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WHEAT v. E LACON & CO LTD

(1966) JELR 91608 (HL)

House of Lords  •  HL/PO/JU/4/3/1148  •  15 Feb 1966  •  United Kingdom

Coram
Viscount Dilhorne, Lord Denning,Lord Morris of Borth-y-Gest,Lord Pearce,Lord Pearson

Judgement

Viscount Dilhorne

my lords,

On the 4th September, 1958, at about 9 p.m., Mr. Wheat, the husband of the Appellant, fell while going down the back stairs of a public house called" The Golfer's Arms " at Great Yarmouth. He was found lying on the floor of the vestibule at the bottom of the stairs and shortly thereafter he died. It was a concrete floor covered with linoleum. He had fractured his skull. The surgeon who gave evidence at the inquest said that there was a bruise on the left side of his head three-quarters of the way up the skull which ran from the ear to the base of the skull and that the fracture which underlay this bruise also extended to the base of the skull. He said that there were no other signs of injury to the body.

Mr. Wheat, who was 42 years of age, must therefore have fallen in such away to as land heavily on the left side of his head, so heavily as to cause this fracture of his skull. In the surgeon's opinion if Mr. Wheat had fallen heavily enough, the fall could have been from ground level and he said that the injury was consistent with his having fallen down two or three or even a flight of stairs.

On the 19th August, 1960, Mrs. Wheat, his widow, commenced an action against E. Lacon and Co. Ltd., the Respondents to this appeal, and the owners of the public house ; Mr. Richardson, the manager of it, and Mrs. Richardson his wife. She claimed as widow of Mr. Wheat and as his administratrix under the Fatal Accidents Acts, 1846-1908, and the Law Reform (Miscel-laneous Provisions) Act, 1934, damages in respect of her husband's death by reason of the negligence and breach of duty of the Defendants.

The action was heard by Winn J. at Norwich Assizes on the 6th and 7thOctober, 1964, and he gave judgment for the Defendants. Mrs. Wheat appealed to the Court of Appeal against the finding in the Respondents' favour. She did not appeal against the decision in favour of the other two defendants. The Court of Appeal by a majority (Harman and Diplock L.JJ..Sellers L.J. dissenting) dismissed the appeal; and now Mrs. Wheat appeals to your Lordships.

Mr. and Mrs. Wheat had gone with their daughter and Mrs. Wheat's parents to stay at the public house for a week's holiday on the 30th August.1958, Mrs. Wheat had agreed terms for board and lodging with Mrs.Richardson who was allowed by the Respondents to take summer visitors.

On the ground floor of the public house, which was on a corner, there were the usual bars, lounges, etc. On the first floor there were a kitchen and larder, a living room and a sitting room, a bathroom and W.C. and six bedrooms. A door with a glass panel and marked " Private " led from the street into an entrance hall which gave access to a staircase leading to the first floor. That floor was in the shape of a " U " and these stairs, the front stairs, were in the right hand upper part of the " U ". On the left hand upperpart of the " U " were the back stairs. They led from the first floor to the vestibule from which a door gave access to a yard at the back of the public house. From this yard it was possible, by going through the beer store and another yard to get to the service area behind the bars. There was no direct access from the ground floor to the first floor.

On the evening of the 4th September, 1958, Mr. and Mrs. Wheat had been out. They returned about 9 p.m., and went to the first floor. Mr. Wheat then went to get some soft drinks for himself and his family. He had pre-viously said that he thought that it would be much simpler to get to the bars down the back stairs. If he went down the front stairs, he would have to go out into the street and then into a bar from the street.

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A little later he was found at the bottom of the back stairs. They were steep and narrow. The slope was only a little less than the maximum recommended. The width of each tread was 9 inches. There were 14 stairs and on each side of the staircase there was, as one descended, a wall. The distance between the two walls was 2 ft. 9 ins.: these walls did not go to the bottom of the staircase. The vestibule appears to have been built on to the outside of the main wall of the building and the last two steps of the stair case were in the vestibule. That was wider than the distance between the two walls. The wall on the left side of the vestible as one descends is set back a few inches from the wall which goes along the rest of the staircase. The wall on the right side is set back more. The vestibule is quite small, the distance from the bottom step to the door which was opposite the staircase and which led into the yard being 4 ft. 3 ins.

On the left side of the staircase where it was only 2 ft. 9 ins. in width agrooved handrail was fixed. This handrail ended immediately above the third step from the bottom where the staircase entered the vestibule. There was no knob at the end of it.

There was nothing to indicate the place where Mr. Wheat's fall began. An Inspector of Police who examined the staircase the next morning, could find no indication of anything which had been struck by Mr. Wheat's head.

In the landing which led to the top of the staircase there were two electric lights suspended from the ceiling. One, which was some distance away from the top of the stairs, was by the bathroom. The other was at the top of the stairs. Unfortunately at the time Mr. Wheat met with his accident, the bulb was missing from this light.

In the main wall of the building opposite the top of the staircase there was a window, the bottom of which was slightly above the level of the floor of the landing. The top part of the door leading from the vestibule to the yard was of glass. The only illumination of the staircase when Mr. Wheat went down it came from the light by the bathroom and such daylight as there was at that time coming through the window and the glass panel in the door. No light could have come through the window on to the bottom stairs and to the vestibule.

Mrs. Wheat said that it was getting quite dark when they returned to the public house. Mr. Hunt, an expert called for the Plaintiff, said that when he had gone down the stairs between 9.30 and 10 p.m., on the night of the5th October, 1964, with the light at the top of the stairs turned off, he could see the first few treads dimly, but that at the bottom it was quite dark, so dark that he could not see the handrail at the bottom. A Mr. Ginn, a builder's foreman, said that he had been in the bar on the evening of the4th September, 1958, when Mr. Richardson called him; that they had gone to the door of the vestibule, that they could only open that door a little and that with the aid of a match he had seen Mr. Wheat on the floor of the vestibule. He had then gone round and up the front stairs to the first floor and when he looked down the stairs from the landing, the light at the top of the stairs was out but he was able to see Mr. Wheat and Mrs. Wheat's father at the bottom of the stairs and he could see the stair-case, the steps and the handrail.

No witness was prepared to say that the staircase itself was dangerous. The only unusual feature was the ending of the handrail immediately above the edge of the third stair so that there was no handrail alongside the bottom two stairs. Mr. Hunt thought that this constituted a danger in that a person's hand could slip off the end of the handrail.

Mr. Justice Winn thought that it was a reasonable and probable con-clusion that Mr. Wheat fell from the second, third or fourth steps from the bottom " and that he was directly caused so to fall by the fact that his hand," which " (the Judge found) " he had been running down along the rail," came to the end of it and he was no longer supported by any rail". In his Judgment it was not necessary to infer that he was leaning heavily upon the rail and fell because the rail was no longer there to support him.

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In his view he said "It is far more likely that he interpreted the cessation of" the rail by the fact that his fingers were no longer running along it . . ."He said " I think what probably happened is that he then stepped out with" the confidence that his foot was about to come upon the floor level," thinking he had come to the bottom of the stairs, and as a result fell . . ."

He held that there were two concurrent causes of the fall, the fact that the handrail did not extend to the foot of the stairs, and " the absence of" any light".

Lord Justice Sellers found it most difficult to decide how the deceased came to fall. He said: " People of all ages and differing types do fall down" stairs and elsewhere on occasions in circumstances where there is nothing" to account for the fall except a stumble which may befall anyone ". He went on to say that if a jury had found as the Judge found, he doubted whether the finding could have been disturbed and that he was not prepared to say that the judge's conclusion was wrong.

Lord Justice Harman said that he felt the gravest doubt about the Judge's finding, that it was possible that Mr. Wheat had fallen in the way the Judge held he had but that he hesitated to find it more probable than alternatives. In view of his opinion on the rest of the case, he did not resolve the doubt he felt.

Lord Justice Diplock said that upon a mere perusal of the transcript he could not be confident that the Judge's reconstruction of the accident was over the borderline " twixt possibility and probability." " But " he said " to" have heard and seen the witnesses might well have made a difference and" I am not prepared to say that the Judge, who did hear them and see" them, was not entitled to make the finding of fact that he did ".

There was no conflict of evidence as to the staircase. There was no evidence as to the cause of Mr. Wheat's fall. The Judge's conclusion was an inference he drew from the evidence. In these circumstances I do not see that the fact that the Judge heard and saw the witnesses placed him in a better position than die Court of Appeal and your Lordships to decidehow the accident occurred.

In Benmax v. Austin Motor Co. [19551 A.C. 370 Viscount Simonds at p. 372 said :

" Fifty years ago, in Montgomerie and Co. Ltd. v. Wallace-James"([1904] A.C. 73, 75) Lord Halsbury L.C. said: 'But where no" ' question arises as to truthfulness, and where the question is as to" ' the proper inferences to be drawn from truthful evidence, then the" ' original tribunal is in no better position to decide than the judges" ' of an Appellate Court'.

And in Mersey Docks and Harbour Board" v. Procter ([1923] A.C. 253, 258-9) Lord Cave L.C. said: 'The" ' procedure on an appeal from a judge sitting without a jury is not" ' governed by the rules applicable to a motion for a new trial after" ' a verdict of a jury. In such a case it is the duty of the Court of" ' Appeal to make up its own mind, not disregarding the judgment" ' appealed from and giving special weight to that judgment in cases" ' where the credibility of witnesses comes into question, but with" ' full liberty to draw its own inference from the facts proved or" ' admitted, and to decide accordingly'. It appears to me that these" statements are consonant with the Rules of the Supreme Court." which prescribe that ' all appeals to the Court of Appeal shall be" 'by way of rehearing' (R.S.C. Ord: 58, r. 1), and that 'the Court" ' of Appeal shall have power to draw inferences of fact and to give" ' any judgment and make any order which ought to have been made'" (r. 4). This does not mean that an appellate court should lightly" differ from the finding of a trial judge on a question of fact, and" I would say that it would be difficult for it to do so where the finding" turned solely on the credibility of a witness."

He went on to say at p. 374—

" In a case like that under appeal where, so far as I can see, there" can be no dispute about any relevant specific fact, much less any

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" dispute arising out of the credibility of witnesses, but the sole question" is whether the proper inference from those facts is that the patent" in suit disclosed an inventive step, I do not hesitate to say that an" appellate court should form an independent opinion, though it will" naturally attach importance to the judgment of the trial judge."

Lord Reid in the same case said at p. 376—

" But in cases where there is no question of the credibility or reliability" of any witness, and in cases where the point in dispute is the proper" inference to be drawn from proved facts, an appeal court is generally" in as good a position to evaluate the evidence as the trial judge, and" ought not to shrink from that task, though it ought, of course, to give" weight to his opinion."

There being in this case no dispute as to the primary facts and no direct evidence as to the cause of Mr. Wheat's fall it is, I think, the duty of your Lordships not to shrink from the task of evaluating the evidence and to decide what inference, if any, can properly be drawn from the undisputed evidence.

I cannot myself see that it is probable that Mr. Wheat's fall occurred in the way the Judge held it did. It is a possibility but in fact the termination of the handrail before the bottom step may have had nothing to do with the accident. If he had fallen forward, it is to be expected that he would instinctively have put his hands out to save himself. There was no sign of injury to his hands. If he had fallen from the second, third or fourth step from the bottom after stepping out with confidence thinking that he had reached the floor, one would have expected him to have hit the door. There was no mark on the door. He landed in the vestibule on the left side of his head, almost as it' he had dived from the stairs. There was no injury to the front of his head.

It is, I think, equally possible that if he had been relying on the hand rail and putting his weight upon it, his hand slipping off the handrail caused him to lose his balance and fall.

Mr. Griffiths for the Respondents suggested that at some stage of his descent Mr. Wheat had decided to turn back, perhaps realising that the staircase did not lead to the bars, perhaps because the bottom of the staircase was in darkness, and that in the course of turning to his right on the narrow treads, he had lost his balance and fallen. If this had happened, he contended that it was consistent with the injury on the left side of the deceased's head.

The Surgeon who gave evidence at the inquest, said that from Mr. Wheat'sinjuries " one would suppose that he fell sideways, again it depends on the" relation of his head to his body as he fell ".

I think that it is, if anything, more likely that Mr. Wheat fell in the way suggested by Mr. Griffiths than in the way held by the Judge, but I cannot on the evidence reach the conclusion that it was probable that he did so. In my opinion, the evidence was not sufficient to enable any deduction to be made as to the probable cause of his fall.

The Judge held that Mr. Wheat was not guilty of contributory negligence. He said that he had felt very serious doubt about this. Lord Justice Sellers thought that he clearly was. So did Lord Justice Harman. Lord Justice Diplock did not express an opinion on the matter, though certain of the observations he made are consistent with his holding the same opinion.

If the accident happened as the Judge held it did. Mr. Wheat was, in my view, guilty of a very high degree of contributory negligence. He was going down a staircase which he had not apparently used before. It was clearly badly lit though it is not possible to determine how dark it was with any degree of precision. It was clearly very much darker at the bottom. It was incumbent on him to use very great care for his own safety. If he " stepped" out with the confidence that his foot was about to come upon the floor" level" when he got to the end of the handrail, he was in my opinion very negligent. This finding assumes that he could not have seen the bottom steps. If he could not see them or the floor, it was incumbent on him to use the greatest caution and not to step out with confidence.

The Appellant claimed that the Respondents were occupiers of the public house and so owed to Mr. Wheat as a visitor to the public house the duty prescribed by the Occupiers Liability Act, 1957.

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Mr. Justice Winn held that the Respondents and the Richardsons were occupiers of the premises and ruled that the Respondents were occupiers of the material part of the premises.

Lord Justice Sellers held that the Respondents were in occupation of the whole building. Lord Justice Harman and Lord Justice Diplock, on the other hand, held that Mr. Richardson, the manager, was in occupation of the private part of the premises which included the back stairs and that the Respondents were not in control of that part.

By an agreement made between the Respondents and Mr. Richardson on the 3rd April, 1951, the Respondents agreed to employ Mr. Richardson and he agreed to enter their service as manager of " The Golfer's Arms" at a weekly salary. He was required to sell ales and spirits etc., for the sole benefit of his employers and to devote the whole of his time (except during holidays) to managing the business of a spirit, wine and beer seller. He was required to obey all lawful commands and directions of his employers in relation to the business.

Clause 5 of the agreement provided that he should permit his employers, their servants or agents " to enter into and upon the said premises for the" purpose of viewing the condition and state of repair thereof or testing the" strength of spirits or gauging or inspecting the stock of beer, porter, ale," stout and other malt liquors wines or spirits in or upon the same ".

Clause 6 provided that the manager should " not part with the possession" of the said premises or any part thereof without the consent of the employers" or their duly authorised agents first obtained ".

Clause 7 reads as follows:

" The Manager shall and may so long as he shall continue in the" service of the employers occupy the same public house without paying" any rent, rates, or taxes for the same but shall quit and deliver up" peaceable and quiet possession of the same immediately upon ceasing" to be employed by the Employers or at any time on receiving twenty-" eight days' notice in writing. . . . Such occupation shall not nor" shall anything herein contained create any tenancy as between the" parties hereto nor give the manager any estate or interest in the" premises."

The Respondents, being a limited company, can only occupy premises by their servants. By this agreement did they divest themselves of the occupa-tion of the public house or of any part of it? In my opinion, the answer is in the negative. The agreement was for the occupation of the whole of the public house by their servant, Mr. Richardson. It was not contended on their behalf that they had divested themselves of occupation and control of the ground floor of the premises. There it was agreed that they were inoccupation and control.

The agreement does not distinguish between the first floor (which I treat as including both staircases and entrances leading to them) and the ground floor. Much reliance was placed for the Respondents on clauses 5, 6 and 7of the agreement. These clauses, which were perhaps more apt for a tenancy agreement than for one dealing with the employment of and occupation by a manager, did not distinguish between one part of the premises and another. They applied to all the premises. It might have provided that Mr. Richardson should occupy the ground floor as their servant and that he should occupy the first floor on his own account. It did not do so and I do not think that it is right to infer from the facts that Mr. and Mrs. Richardson had their living accommodation on the first floor, that Mrs. Richardson was allowed by the Respondents to have summer visitors and that the street entrance leading to the front staircase to the first floor was marked " Private ". That the agreement operated to divest the Respondents of occupation and control of the first floor while leaving them through their servant Mr. Richardson in control and occupation of the ground floor.

In Read v. Cattermole [1937] 1 K.B. 613, a decision on whether the amoun tof the Schedule A tax and rates paid on his behalf by the Church on a manse occupied by a Methodist minister formed part of his emoluments and so were liable to tax under Schedule E, Lord Wright M.R. cited with approval

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the statement of principle by Tindal C.J. in Dobson v. Jones(1844) 5 Man.& Gr. 112,120 who referred to an earlier and similar case, Hughes v. ChathamOverseers'(1843) 5 Man. and Gr. 54 where he said—" In Hughes' case we drew" the distinction between those cases where officers or servants in the employment of government are permitted to occupy a house belonging to the" government as part remuneration for the services to be performed, and those" in which the places of residence are selected by the government, and the" officers or servants are required to occupy them, with a view to the more" efficient performance of the duties imposed upon them."

In Glasgow Corporation v. Johnstons [1965] 2 W.L.R. 657, where it washeld that a house occupied, by a church officer was occupied by a charity andso not liable for full rates, Lord Reid at p. 660 cited this passage, and in thesame case at p. 667 Lord Hodson said: " The distinction is usually shortly" stated in this way: if the servant is given the privilege of residing in the" house of the master as part of his emoluments the occupation is that of" the servant. He is treated for occupation purposes as being in the same" position as that of a tenant. If, on the other hand, the servant is genuinely" obliged by his Master for the purposes of his master's business or if it is" necessary for the servant to reside in the house for the performance of his" services the occupation will be that of the master."

In Tennant v. Smith [1892] AC 150 it was held that a bank manager wasnot taxable on any benefit he received from having a rent-free residence in which he was bound to reside. Lord Macnaghten, at p. 162, said: " He is" not entitled to sublet the bank house or to use it for other than bank" business, and in the event of his ceasing to hold his office he is under" obligation to quit the premises forthwith. Property, therefore, in the" house he has none, of any sort or kind. He has the privilege of residing" there. But his occupation is that of a servant."

Although it is possible to draw distinctions between occupation for the purposes of taxation and rating and occupation for the purposes of the Occupiers Liability Act, in all these cases the same question has to be determined, namely who was the occupier at the relevant time. In some cases occupation of a temporary character, e.g., in relation to a contractor's liability under the Occupiers Liability Act, will suffice. In others it will not. In my view, the principle formulated by Tindal C.J. and approved by LordWright, Lord Reid and Lord Hodson is a useful test for determining whether the occupation is in the capacity of a servant and so of the master or in the servant on his own account. Mr. Richardson was not given the privilege of residing in the public house as part of his emoluments.

He was obliged to live there for the purpose of his master's business and for the performance of his services. To adapt the words of Lord Macnaghten, he was not entitled to sublet the first floor or to use it for any purpose other than one approved by the Respondents. In the event of his ceasing to hold office, he was under obligation to quit the premises forthwith. Property in the house he had none, of any sort or kind. He had the privilege of residing there. But his occupation was that of a servant.

I therefore have come to the conclusion that Winn J. and Sellers L.J. were right in holding that the Respondents were at the time occupiers of the material part of the premises.

Your Lordships' attention was drawn to the Minutes of a meeting the Respondents had with their managers on the 23rd April, 1954. Under the heading " Summer Letting " appears the sentence " Authority for summer" letting was a generous privilege granted by the Company ". Since the only accommodation for summer visitors was on the first floor, this minute sup-ports the view that even if the Respondents were not occupiers of the first floor through their servant, they had at least control over it.

In Salmond on Torts (10th Ed.) at p. 469, the following passage appears—

" In dealing with dangerous premises it is necessary to distinguish" between the responsibilities of the owner and those of the occupier or" possessor. Generally speaking, liability in such cases is based on" occupancy or control, not on ownership. The person responsible for" the condition of the premises is he who is in actual possession of them" for the time being, whether he is the owner or not, for it is he who

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" has the immediate supervision and control and the power of permitting" or prohibiting the entry of other persons."

This passage was cited with approval by Roxburgh J. in Hartwell v. Grayson Rollo and Clover Docks [1947] 1 K.B. 901. 917 (C.A.) and byDiplock L.J. in this case.

While it is clearly right that, generally speaking, liability for dangerous premises is based on occupancy or control, not on ownership, it does not necessarily follow that the person in actual occupation of the premises is responsible for their condition.

A servant in actual possession of premises may not be responsible for their condition and in this case the agreement with Mr. Richardson did not place on him, any responsibility for the condition of the premises.

I do not myself regard this passage from Salmond as assisting in deter-mining whether, in the circumstances of a particular case, the occupation by a servant is occupation on behalf of his employers or on his own account.

Having reached the conclusion that the occupation by Mr. Richardson of the whole of the public house was occupation on behalf of his employers and not on his own account, it is not, I think, necessary to consider whether, if Mr. Richardson occupied the first floor on his own account, the Respondents still retained sufficient control to render them responsible ; nor is it necessary to determine whether Mr. and Mrs. Richardson were also to be regarded a sowing a duty under the Occupiers Liability Act to their visitors. Mr. and Mrs. Richardson are not parties to this appeal and, without hearing argument directed to this issue, I do not propose to express any opinion on the point. If they owed any such duty, it may well be that it differed in extent and character from that owed by the Respondents.

The common duty of care imposed by section 2 of the Occupiers Liability Act on the occupier of premises in relation to all his visitors was not in this case restricted in any way. The Respondents were under a duty "to take" such care as in all the circumstances of the case is reasonable to see that" the visitor will be reasonably safe in using the premises for the purposes" for which he is invited or permitted by the occupier to be there " (Occupiers Liability Act, Act, 1957, section 2(2)).

The persons who are to be treated as an occupier and his visitors are the same as the persons who would at common law be treated as an occupier and as his invitees or licensees (ibid: section 2(2)).

Winn J. held that persons coming to the first floor bedrooms and any part of the premises from which they were not excluded and which they might reasonably think were open to them for their use as guests came there as persons invited by Mrs. Richardson with the prior authority and tolerance of the Respondents. He said that they were present on the premises as licensees of the Respondents and therefore as visitors within the meaning of the Occupiers Liability Act.

I agree with him. The Respondents permitted the accommodation of summer visitors on the premises. Any person who came as a summer visitor by arrangement with her, came upon the premises with the permission of the Respondents and so as a licensee.

Did the Respondents fail to take such care as in all the circumstances was reasonable to see that Mr. Wheat was reasonably safe in using the premises?

They had built the staircase in 1938. Between then and 1958 no accident had happened on it. Winn J. held that the steepness of the stairs was not such as of itself to make the stairs dangerous.

The only unusual feature was the ending of the handrail before the bottom of the stairs so that the last two stairs had no handrail beside them.

The Respondents had provided a light at the top of the stairs, operated at the top and bottom of the staircase. The fact that the bulb was missing at the time of the accident was no fault of theirs. Winn J. held that its removal by whomever it was effected was a novus actus and that there was no ground upon which to find that Mrs. Richardson knew that the bulb was missing in time to see it was replaced.

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Ought, then, the Respondents reasonably to have foreseen that a visitor would use the staircase when it was dark or insufficiently lit? And, if so, ought they to have made some further provision with regard to it?

I think that the Respondents ought to have foreseen that a visitor might use the staircase when unlit. A visitor might not discover the switch to operate the light.

But I do not myself consider that this staircase if unlit was a dangerous staircase for someone to use who was taking proper care for his own safety. Though steep it was not dangerously steep and it was straight.

Anyone who chose to go down it in the dark and who took care to see that the foot he put forward was resting on something solid before he put his weight on it, could have gone down it perfectly safely.

I do not think that the Respondents could be reasonably expected to have foreseen that Mr. Wheat when he reached the end of the handrail would " step out with the confidence that his foot was about to come" upon the floor level" if he could not see the floor.

As Diplock L.J. said: " My neighbour does not enlarge my duty to care" for his safety by neglecting it himself."

Whether the accident happened in the way Winn J. thought probable or in some other way, in my opinion, there was no breach of the duty on the part of the Respondents to take such care as in all the circumstances was reasonable to see that visitors were reasonably safe in using the premises.

I would dismiss the appeal.

Lord Denning

my lords,

The " Golfer's Arms" at Great Yarmouth is owned by the Brewery Company, E. Lacon and Co. Ltd. The ground floor was run as a public house by Mr. Richardson as Manager for the Brewery Company. The first floor was used by Mr. and Mrs. Richardson as their private dwelling. In the summer Mrs. Richardson took in guests for her private profit. Mr. and Mrs. Wheat and their family were summer guests of Mrs. Richardson. About 9 p.m. one evening, when it was getting dark, Mr. Wheat fell down the back staircase in the private portion and was killed. Winn J. held that there were two causes: (i) the handrail was too short because it did not stretch to the foot of the stairs: (ii) someone had taken the bulb out of the light at the top of the stairs.

The case raises this point of law: did the Brewery Company owe any duty to Mr. Wheat to see that the handrail was safe to use or to see that the stairs were properly lighted? That depends on whether the Brewery Company was " an occupier " of the private portion of the " Golfer's" Arms," and Mr. Wheat its " visitor" within the Occupiers Liability Act, 1957: for. if so, the Brewery Company owed him the "common duty" of care ".

In order to determine this question we must have resort to the law before the Act: for it is expressly enacted that the Act " shall not alter the rules" of the common law as to the persons on whom a duty is so imposed or to" whom it is owed ; and accordingly ... the persons who are to be treated as" an occupier and as his visitors are the same ... as the persons who would at" common law be treated as an occupier and as his invitees or licensees ".

At the outset, I would say that no guidance is to be obtained from the use of the word " occupier " in other branches of the law: for its meaning varies according to the subject-matter.

In the Occupiers' Liability Act, 1957, the word " occupier " is used in thesame sense as it was used in the common law cases on occupiers' liability fordangerous premises. It was simply a convenient word to denote a personwho had a sufficient degree of control over premises to put him under a dutyof care towards those who came lawfully on to the premises. 

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Those persons were divided into two categories, invitees and licensees: and a higher duty was owed to invitees than to licensees. But by the year 1956 the distinction between invitees and licensees had been reduced to vanishing point. The duty of the occupier had become simply a duty to take reasonable care to see that the premises were reasonably safe for people coming lawfully on to them and it made no difference whether they were invitees or licensees, see Slater v. Clay Bros. [1956] 2 Q.B. 264 at p. 269. The Act of 1957 confirmed the process. It did away, once and for all, with invitees and licensees and classed them all as " visitors "; and it put upon the occupier the same duty to all of them, namely, the common duty of care. This duty is simply a particular instance of the general duty of care which each man owes to his" neighbour ". When Lord Esher first essayed a definition of this general duty, he used the occupiers' liability as an instance of it, see Heaven v. Pender(1883) 11 Q.B.D. 503 at pages 508-9: and when Lord Atkin eventually formulated the general duty in acceptable terms, he, too, used occupiers' liability as an illustration, see Donoghue v. Stevenson [1932] AC 562 at page 580, and particularly his reference at pages 586-7 to Grote v. ChesterRailway Company (1848) 2 Ex. 251. Translating this general principle into its particular application to dangerous premises, it becomes simply this: wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person coming lawfully there, then he is an " occupier " and the person coming lawfully there is his " visitor ": and the " occupier " is under a duty to his " visitor " to use reasonable care. In order to be an " occupier " it is not necessary for a person to have entire control over the premises. He need not have exclusive occupation. Suffice it that he has some degree of control. He may share the control with others. Two or more may be " occupiers ".And whenever this happens, each is under a duty to use care towards persons coming lawfully on to the premises, dependent on his degree of control. If each fails in his duty, each is liable to a visitor who is injured in consequence of his failure, but each may have a claim to contribution from the other.

In Salmond on Torts 14th Edition (1965) p. 372, it is said that an " occupier " is " he who has the immediate supervision and control and the power" of permitting or prohibiting the entry of other persons ". This definition was adopted by Roxburgh J. in Hartnell v. Grayson [1947] K.B. 901 at p. 917,and by Diplock L.J. in the present case [1965] 3 W.L.R. at p. 159. There is no doubt that a person who fulfils that test is an " occupier ". He is the person who says " come in ". But I think that test is too narrow by tar. There are other people who are " occupiers ", even though they do not say" come in ". If a person has any degree of control over the state of the premises it is enough. The position is best shown by examining the cases in four groups.

First, where a landlord let premises by demise to a tenant, he was regarded as parting with all control over them. He did not retain any degree of control, even though he had undertaken to repair the structure. Accordingly, he was held to be under no duty to any person coming lawfully on to the premises, save only to the tenant under the agreement to repair. In Cavalier v. Pope [1906] AC 428, it was argued that the premises were under the control of the landlord because of his agreement to repair: but the House of Lords rejected that argument. That case has now been overruled by section 4 of the 1957 Act to the extent therein mentioned.

Secondly, where an owner let floors or fiats in a building to tenants, but did not demise the common staircase or the roof or some other parts, he was regarded as having retained control of all parts not demised by him. Accordingly, he was held to be under a duty in respect of those retained parts to all persons coming lawfully on to the premises. So he was held liable for a defective staircase in Miller v. Hancock [18931 2 Q.B. 177 ,for the gutters in the roof of Hargroves v. Hartopp [1905] 1 K.B. 472 ; and for the private balcony in Sutcliffe v. Clients investment Company [1924]2 K.B. 746. The extent of the duty was held to be that owed to a licensee, and not to an invitee, see Fairman v. Perpetual Investment Building Society[1923] A.C. 74; Jacobs v. L.C.C. [1950] A.C. 361. Since the 1957 Act the distinction between invitees and licensees has been abolished, and the extent

10

of the duty is now simply the common duty of care. But the old cases still apply so as to show that the landlord is responsible for all parts not demised by him, on the ground that he is regarded as being sufficiently in control of them to impose on him a duty of care to all persons coming lawfully on to the premises.

Thirdly, where an owner did not let premises to a tenant but only licensed a person to occupy them on terms which did not amount to a demise, the owner still having the right to do repairs, he was regarded as being sufficiently in control of the structure to impose on him a duty towards all persons coming lawfully on to the premises. So he was held liable for a visitor who fell on the defective step to the front door in Hawkins v. Coulsdon and Parley U.D.C. [1954] 1 Q.B. 319; and to the occupier's wife for the defective ceiling which fell on her in Greene v. Chelsea BoroughCouncil 1954 2 Q.B. 127 . The extent of the duty was that owed to a licensee, but since the 1957 Act the duty is the common duty of care to see that the structure is reasonably safe.

Fourthly, where an owner employed an independent contractor to do work on premises or a structure, the owner was usually still regarded as sufficiently in control of the place as to be under a duty towards all those who might lawfully come there. In some cases he might fulfil that duty by entrusting the work to the independent contractor: see Haseldine v. Daw [1941] 2 K.B. 343: and section 2(4) of the 1957 Act. In other cases he might only be able to fulfil it by exercising proper supervision himself over the contractor's work, using due diligence himself to prevent damage from unusual danger, see Thomson v. Cremin (1941) [1956]1 W.L.R. 103 in not is as explained by Lord Reid in Davie v. New MertonBoard Mills[1959] A.C. 604 at pages 642-5. But in addition to the owner, the Courts regarded the independent contractor as himself being sufficiently in control of the place where he worked as to owe a duty of care towards all persons coming lawfully there. He was said to be an " occupier" also, see Hartwell v. Crayxon [1947] K.B. 901 at pages 912-3: but this is only a particular instance of his general duty of care, see Billings v. Riden[1958] AC 240, at p. 250 by Lord Reid.

In the light of these cases, I ask myself whether the Brewery Company had a sufficient degree of control over the premises to put them under a duty to a visitor. Obviously they had complete control over the ground floor and were " occupiers " of it. But I think that they had also sufficient control over the private portion. They had not let it out to Mr. Richardson by a demise. They had only granted him a licence to occupy it, having a right themselves to do repairs. That left them with a residuary degree of control which was equivalent to that retained by the Chelsea Corporation in Greene's case [1954] 2 Q.B. 127.

They were in my opinion " an occupier "within the 1957 Act. Mr. Richardson, who had a licence to occupy, had also a considerable degree of control. So had Mrs. Richardson, who catered for summer guests. All three of them were, in my opinion, " occupiers "of the private portion of the " Golfer's Arms". There is no difficulty in having more than one occupier at one and the same time, each of whom is under a duty of care to visitors. The Court of Appeal so held in the recent case of Crockfords Club (11th November, 1965).

What did the common duty of care demand of each of these occupiers towards their visitors? Each was under a duty to take such care as" in all the circumstances of the case " is reasonable to see that the visitor will be reasonably safe. So far as the Brewery Company are concerned, the circumstances demanded that on the ground floor they should, by their servants, take care not only of the structure of the building, but also the furniture, the state of the floors and lighting, and so forth, at all hours of day or night when the premises were open. But in regard to the private portion, the circumstances did not demand so much of the Brewery Company. They ought to see that the structure was reasonably safe, including the handrail, and that the system of lighting was efficient. But I doubt whether they were bound to see that the lights were properly switched on or the rugs laid safely on the floor. The Brewery Company were entitled to

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leave those day-to-day matters to Mr. and Mrs. Richardson. They, too, were occupiers. The circumstances of the case demanded that Mr. and Mrs. Richardson should take care of those matters in the private portion of the house. And of other matters, too. If they had realised the hand rail was dangerous, they should have reported it to the Brewery Company.

We are not concerned here with Mr. and Mrs. Richardson. The Judge has absolved them from any negligence and there is no appeal. We are only concerned with the Brewery Company. They were, in my opinion, occupiers and under a duty of care. In this respect I agree with Sellers L.J. and Winn J., but I come to a different conclusion on the facts. I can see no evidence of any breach of duty by the Brewery Company. So far as the handrail was concerned, the evidence was overwhelming that no-one had any reason before this accident to suppose that it was in the least dangerous. So far as the light was concerned, the proper inference was that it was removed by some stranger shortly before Mr. Wheat went down the stair-case. Neither the Brewery Company nor Mr. and Mrs. Richardson could be blamed for the act of a stranger.

I would, therefore, dismiss this appeal.

Lord Morris of Borth-y-Gest

my lords,

The tragic death of the Appellant's husband set a perplexing problem of deciding how it came about. He was no more than 42 years of age and enjoyed good health. He purposed to go to the lower part of the premises and he proceeded to use the back staircase. In some way and for no readily ascertainable reason he fell. He came down heavily on the left side of his head. His skull was fractured. What, then, was it that happened? The learned Judge at the trial was presented with an issue of extreme difficulty.

As to the basic facts there was little doubt or dispute. The positionwhere the body was found, the nature of the injuries, the style and descriptionof the staircase, its relevant measurements, its siting by reference to the surrounding parts of the structure, the prevailing state or lack of light and of lighting—all these matters were the subjects of detailed evidence and of careful findings by the learned Judge. Could a consideration of them lead to a conclusion as to the probable cause of the fall? It was a case where many conjectures could be made and many possibilities propounded. Could the stage of mere surmise or pure guess-work be passed? Could one of the several possibilities be selected for promotion above the others so as to take sole place as a probability? Had the case been for decision by a jury any clear finding as to probability would have been difficult to assail as lacking a reasonable foundation of evidence. As the case was not so tried it would, I think, be open to an appellate court to differ from the conclusion of the learned Judge on the issue as to how the death came about. I do not, however, find it necessary to pursue this aspect of the case further. I propose to examine the matter on the assumption that the view formed by the learned Judge (which merits great respect) was correct.

On this approach two main questions arise :

Were the Respondents (whom I will call Lacons) in occupation?

If the accident happened in the way that the learned Judge held, were Lacons at fault, i.e., were they negligent or in breach of duty?

It is to be noted that the Occupiers' Liability Act, 1957, regulates the duty of an occupier but does not alter the rules of the common law which determine the question as to who is an occupier. When someone is an occupier then the rules laid down in the Act (in sections 2 and 3) take the place of the rules of the common law. For the purpose of those rules the persons " who are to be treated as an occupier and as his visitors " are(subject to one qualification) the same as the persons who would at common law " be treated as an occupier and as his invitees or licensees ".30582

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The statutorily regulated duty of the occupier to his visitors (unless the occupier is free to and does make variation by agreement or otherwise) is the common duty of care. He must take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there.

Who, then, for this purpose is an occupier? I say " for this purpose "because in other circumstances there may be different identification (e.g. inconnection with rating or in connection with the franchise). Section 1 (1)of the Act speaks of " an occupier of premises ". Section 1 (2) refers to" a person's occupation or control of premises ": it goes on to refer to " any" invitation or permission he gives (or is to be treated as giving) to another" to enter or use the premises ". This I think shows that exclusive occupation is not necessary to constitute a person an occupier. In his speech inGlasgow Corporation v. Muir [1943] AC 448 Lord Wright said (at p. 462)

" Before dealing with the facts, I may observe that in cases of"' invitation ' the duty has most commonly reference to the structural" condition of the premises, but it may clearly apply to the use which" the occupier (or whoever has control so far as material) of the" premises permits a third party to make of the premises."

This illustrates that there may be someone who would ordinarily be regarded as the occupier of premises while at the same time there may be another occupier who has " control so far as material ". Lord Wright gave the illustration of an occupier of a theatre permitting an independent company to give performances: and the further illustration of a person holding a fair who grants concessions to others to hold side shows. On page 461Lord Wright had referred to the duty laid down in Indermaur v. Dames as being " limited to occupiers, or persons in control " of premises. So als oin Hartwell v. Grayson Rollo and Clover Docks Ltd. [1947] K.B. 901 Lord Oaksey L.J. said in his judgment (at p. 913)

" Invitors, of course, do not as a rule invite others on business to" premises in which the invitors have no business interest or control," but they may have an interest and control which falls short of" exclusive occupation, and where they have such an interest and" control and invite others to come to the spot on business they are" bound, in my opinion, to warn the invitee against concealed dangers" of which they know, or ought to know, even if such dangers are" not created by their own positive acts."

Questions of fact may arise as to the nature and extent of occupation and control. Thus in Prenton v. General Steam Navigation Co. Ltd. (77 Ll.L.R.174) there was a question whether contractors were sufficiently in occupation of the 'tween decks of a ship for the purposes of their work to owe a duty to an employee of their sub-contractors. It was said by Jenkins L.J. inPegler v. Craven [1952] 2 Q.B. 69 , at p. 74, that the conception of" occupation " is not necessarily and in all circumstances confined to the actual personal occupation of the person termed the occupier himself and that in certain contexts and for certain purposes it extends to vicarious occupation by a caretaker or other servant or by an agent.

This brings me to the question whether Lacons were in occupation or control. The Richardsons were not made parties to the appeal and are not before your Lordships. No question as to their liability calls for investigation. It is impossible, however, to avoid considering how they as well as Lacons stood in regard to occupation or control. Much turns upon the facts and also upon the effect of the agreement of the 3rd April, 1961. That was a service agreement. Lacons were called " The Employers". Mr. Richardson was being employed as " The Manager " of the public house called the " Golfers Arms ". He was being employed upon the terms and conditions of the agreement. He was to devote all his time (except for holiday periods) to managing the business. He was to do his best for the business. There was a clause (clause 5) which fits somewhat oddly into a service agreement, which required the manager to permit his employers

13

their servants or agents " at all times to enter into and upon the said" premises " for the purposes, shortly stated of (a) viewing the condition and state of repair of the premises and of (b) testing the strength of or inspecting the stock, of the liquor to be sold. Under the agreement the manager was not to " part with the possession of the said premises or any part thereof "without his employers consent. There was a clause that he " shall and" may ", so long as his service continued, occupy " the same public house" without paying any rent, rates, or taxes ". No tenancy was to be created. The licence, if the justices agreed, was to be (during the employment) in the manager's name. The residential part was all unfurnished when the manager first entered. He then furnished such part.

As a privilege (which could be withdrawn) Lacons allowed their managers to take visitors for reward during the summer and made no charge to the manager for the use of accommodation, lighting and heating. It was as a result of this privilege that Mrs. Richardson agreed to accommodate Mr. Wheat and his party for a period of about a week which covered the early days of September, 1958.

The general result of the agreement and of the arrangements to which I have referred was that Lacons through their servant were in occupation of the whole premises. Their servant was required to be there. The contemplation, it would appear, was that Lacons would see to the condition

of the premises and would effect any necessary repairs. As the residential part would constitute the home of the manager and his family it was a reasonable inference, and it would be mutually assumed, that his privacy in regard to it would be respected. It would be mutually assumed that Lacons could not asof right enter that part save for the defined purpose of viewing its condition and state of repair. There was freedom for the manager or his wife to make contracts with and to receive and entertain visitors for reward.

The conclusion I reach is that as regards the premises as a whole both Lacons and the manager were occupiers but that by mutual arrangement Lacons would not (subject to certain over-riding consideration) exercise control over some parts. They gave freedom to their manager to live in his home in privacy. They gave him freedom to furnish it as and how he chose. They gave him freedom to receive personal guests and also to receive guests for reward. I think it follows that both Lacons and the Richard-sons were " occupiers " vis-à-vis Mr. Wheat and his party. Both Lacons and the Richardsons owed Mr. Wheat and his party a duty. The duty was the common duty of care. The measure and the content of that duty were not, however, necessarily the same in the case of Lacons and in the case of the Richardsons. The duty was to take such care as in all the circum-stances of the case was reasonable to see that Mr. Wheat and his party would be reasonably safe in using the premises as guests for reward. Lacons did not know that Mr. Wheat and his party were to arrive but they had given permission to their manager to take guests and the result was that Mr. Wheat and his party were on the premises with Lacons' permission. The " circum-" stances of the case " would, however, vary as between Lacons and the Richardsons. Thus, if after Mr. Wheat and his party had arrived they had been ascending the main staircase and if it had collapsed and caused them injury a question would have arisen whether either Lacons or the Richard-sons or any or all of them had been lacking in their duty. "The circum-" stances of the case " in such a situation would have, or might have, been quite different so far as Lacons were concerned from what they would have been so far as the Richardsons were concerned. If, to take another possibility, the Wheats had entered a living room of the Richardsons which had been fitted and equipped and furnished by the Richardsons and hadsuffered some mishap which arose from the state or condition of the equipment or furnishings " the circumstances of the case " would have been, or might have been, quite different so far as the Richardsons were concerned from the circumstances so far as Lacons were concerned.

In the illustrations to which I have referred it might be or could be that there would be some failure on the part of Lacons to take care in regard to the staircase and no failure on the part of the Richardsons: so it might

14

be or could be that there would be some failure on the part of the Richardsons in regard to some equipment or furnishing in a living room and no failure on the part of Lacons.

It may, therefore, often be that the extent of the particular control which is exercised within the sphere of joint occupation will become a pointer as to the nature and extent of the duty which reasonably devolves upon a particular occupier.

Mr. Wheat decided to use the backstairs. We have no occasion to con-sider whether, on the assumption that he fell in the way that the learned judge thought he fell, there was any failure to take care on the part of the Richardsons. The learned judge held that there was not. The only question that now arises is whether Lacons failed to take such care as in all the circumstances it was reasonable for them to take to see that paying guests of the Richardsons would be reasonably safe in using the premises. Though the staircase which Mr. Wheat used was the back staircase and not the main one I think that Lacons would and should have realised that a visitor might use the back staircase. Did they negligently provide a staircase which it would be unsafe to use? I cannot think that they did. In daylight the stair-case was quite safe to use. In the period of 20 years before the dayMr. Wheat fell there had been no accident on the stairs. In darkness themeans of illumination was provided. I cannot think that there was a failureto take reasonable care on the part of Lacons. I do not consider that theywere negligent in failing to contemplate and to eliminate the possibility thatsomeone unfamiliar with the stairs might use them in the dark or when alight was not available and might, on the assumption that the end of thehandrail marked the reaching of the lowest stair, take a step onwardswithout feeling or testing whether such an assumption was correct.

Accordingly, I would dismiss the appeal.

Lord Pearce

my lords,

I agree that this appeal fails for the reasons which have been fully setout by my noble and learned friend, Lord Dilhorne. I agree with him that the Respondents were under a duty of care to the deceased under the Occupiers Liability Act. But that Act may impose a duty of care on more than one person. And in my opinion the Richardsons were also under a duty of care. The safety of premises may depend on the acts or omissions of more than one person, each of whom may have a different right to cause or continue the state of affairs which creates the danger and on each a duty of care may lie. But where separate persons are each under a duty of care the acts or omissions which would constitute a breach of that duty may vary very greatly. That which would be negligent in one may well be free from blame in the other. If the Richardsons had a dangerous hole in the carpet which they chose to put down in their sitting-room that would be negligent in them towards a visitor who was injured by it. But the Respondents could fairly say that they took no interest in the Richardson's private furnishings and that no reasonable person in their position would have noticed or known of or taken any steps with regard to the dangerous defect. If the construction of the staircase was unsafe that would be negligence on the Respondents' part. Whether the Richardsons would also be negligent in not warning their visitors or taking steps to reveal the danger would depend on whether a reasonable person in their position would have done so. Once the duty of care is imposed, the question whether a defendant failed in that duty becomes a question of fact in all the circumstances. In the present case the Respondents are not shown to have failed in their duty of care.

I agree with the observations of my noble and learned friend, Lord Denning, on the Occupiers Liability Act.

I would dismiss the appeal.

15

Lord Pearson

my lords,

In my opinion this appeal must fail on the facts. The occurrence of the unfortunate accident remains a mystery, as there is no probable explanation of how it happened. It was not reasonably foreseeable that any such accident would happen. The staircase was an ordinary back staircase, narrow and rather steep, not intended for frequent use except perhaps by the resident manager or tenant and his wife, and not needing to be used by paying guests. The handrail was helpful, even though it did not extend for the full length of the stairs. Anyone familiar with the staircase could safely walk up or down it in any state of light or darkness or partial darkness. A person not familiar with the staircase would have no difficulty in walking up it if there was any light in the landing to show him where the top of the stairs was and his ascent of the staircase in darkness would be only troublesome and not dangerous. For a person not familiar with the staircase and wishing to walk down it (a) there would be no difficulty in daylight nor at night with the aid of electric light, for which Lacons had provided a fitting and a switch at the top of the staircase and an ample supply of bulbs, (b) if it was nighttime and by some mischance the electric light bulb had failed or had been removed, he could either decide not to use this staircase or proceed with extreme care, feeling his Way with his feet, which would be obvious and natural thing to do, (c) if there was a state of dusk or partial darkness, he could pause at the top of the stairs until his eyes became accustomed to the dim light and he could see where the steps ended. It was not to be expected that a person unfamiliar with the staircase would go down it in the semi-darkness without pausing till he could see where he was going, and relying on the handrail and assuming it must extend for the whole length of the staircase, and stepping out with confidence as soon as he found the hand rail had come to an end. In my view, the short handrail was merely helpful and not dangerous, because it was not probable or reasonably foreseeable that it would cause any accident. The absence of the electric light bulb from the fitting at the top of the staircase was unaccounted for. There was mere speculation and no evidence or ground for inference as to who might have removed it. The absence of the bulb was not shown to be due to am negligence on the part of Mr. or Mrs. Richardson, whether acting on his or her own behalf or as servants or agents of Lacons. The Appellant cannot succeed on the issue of negligence.

There is, however, the question as to the occupation of the upper part ofthe premises. The majority of the Court of Appeal held that the plaintiff's claim against Lacons failed because Lacons were not in occupation and so did not have occupiers' liability in respect of that part of the premises. I have found this question difficult but in the end I think the right conclusion is that there was dual occupation, i.e. occupation by the Richardsons and occupation by Lacons. That conclusion depends on the special facts of this case, but it is necessary to say something about the nature of the occupation which is requisite for occupiers' liability.

The phrasing of section 1 subsections (1) and (2) of the Act of 1957 is in one respect somewhat puzzling. I will underline the phrases which need to be reconciled. Subsection (1) provides that:

" The rules enacted by the two next following sections shall have" effect, in place of the rules of the common law, to regulate the duty" which an occupier of premises owes to his visitors in respect of" dangers due to the state of the premises or to things done or omitted" to be done in them ".

Subsection (2) provides that:

' The rules so enacted shall regulate the nature of the duty imposed" by law in consequence of a person's occupation or control of premises" and of any invitation or permission he gives (or is to be treated as" giving) to another to enter or use the premises, but they shall not" alter the rules of the common law as to the persons on whom a duty" is so imposed or to whom it is owed ; and accordingly for the purpose

16

" of the rules so enacted the persons who are to be treated as an" occupier and as his visitors are the same (subject to subsection (4)" of this section) as the persons who would at common law be treated" as an occupier and as his invitees or licensees."

The puzzle is created by the references in three places to " an occupier "and in one place to " occupation or control". I think the solution is to be found in the cases decided at common law, in which occupier's liability has been attributed or envisaged as attributable to persons, such as building or ship-repairing or road-working contractors, who were or might have been in temporary control and therefore for this purpose " in occupation " of premises or parts of premises or ships or roadways or road verges, although they would not be held to be " in occupation " for the purpose of rating or tax law. Canter v. J. Gardner and Co. Ltd. [1940] 1 All.E.R. 325 , 329E; Duncan v. Cammell Laird [1943] 2 All.E.R. 621, 627 ; Hartwell v. GraysonRollo and Clover Docks Ltd. and Others [1947] K.B. 901 ; Creed v. McGeoch [1955] 1 W.L.R. 1005, 1008-9. The foundation of occupier's liability is occupational control, i.e. control associated with and arising from presence in and use of or activity in the premises. In Duncan v. CammellLaird and Co. Ltd. (supra) at p. 627 Wrottesley J. said:

" It seems to me that the importance of establishing that the" defendant who invites is the occupier of the premises lies in the fact" that with occupation goes control. And the importance of control" is that it affords the opportunity to know that the plaintiff is coming" on to the premises, to know the premises, and to become aware of" dangers, whether concealed or not, and to remedy them, or at least" to warn those that are invited on to the premises."

It seems to me clear that Mr. and Mrs. Richardson had at least some occupational control of the upper part of the premises to which the appeal relates. They lived there. They provided the furniture. They for their own benefit took in paying guests and received them and looked after them.

The paying guests would have been their invitees at common law, and were their visitors under the Act of 1957. Moreover, Mr. and Mrs. Richardson were present and able to see the state of the premises and what was being done or omitted therein. If anything was wrong, they could take steps to rectify it or have it rectified. If there were any danger, they could protect the paying guests by erecting a barrier or giving a warning or otherwise. Mr. and Mrs. Richardson were the appropriate persons forbearing and fulfilling the common duty of care. Under section 2 (2) of the Act of 1957 " The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."

But I think Lacons also had some occupational control of the upperpart of the premises. The lower part, the licensed part, was occupied by Lacons through their servant Mr. Richardson and their agent Mrs. Richardson for the purpose of the liquor-selling business of Lacons. The Agreement applied to the whole of the premises without distinguishing between the two parts. Mr. Richardson as manager for Lacons was required as well as entitled to occupy the whole of the premises on their behalf. He was required to live in the upper part for the better performance of his duties as manager of the business of Lacons. His right to live there, and the permission to take in paying guests, were perquisites of the employment.

The paying guests, though invited by the Richardsons, had Lacons' per-mission to come and were therefore visitors of Lacons as well as of the Richardsons. The fact that Lacons gave permission for the Richardsons totake in paying guests is important as showing that Lacons had some control over the admission of persons to the upper part of the premises. Lacons did not themselves say " Come in ", but they authorised the Richardsons to say " Come in ". Lacons had, under clause 5 of the Agreement, an express right to enter the premises for viewing the state of repair, and, as was conceded (correctly in my opinion), an implied right to do the repairs found to be necessary. It is fair to attribute to Lacons some responsibility

17

for the safety of the premises for those who would, in pursuance of the authority given by Lacons, be invited to enter as paying guests the upperpart of the premises. In matters relating to the design and condition of the structure they would be in a position to perform the common duty of care.

For these reasons I agree that there was, for the purposes of occupiers' liability, dual occupation of the upper part of the premises. But as there was no proof of negligence on the part of Lacons I would dismiss the appeal.

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