Recent Occupiers Liability Act decisions

Our Corporate Claims team examines recent court decisions on the Occupiers Liability Act 1957 and consider how they develop the landscape of liability law.

The first case, Kanwarjit Singh Juj v John Lewis Partnership PLC, illustrates the duty of care under the 1957 Act can be owed by non-owners of premises to visitors. Through a detailed analysis of the decision, we explore the extent of the duty owed and the action needed to discharge the duty.

In the second case, Bennion v Adventure Parc Snowdonia Limited, we consider how liability under the Act may arise from recreational activities. Through the lens of a tragic surfing accident resulting in tetraplegic injuries, we examine the duty of care owed by occupiers to participants in extreme sports and the measures required to mitigate inherent risks.

Kanwarjit Singh Juj v John Lewis Partnership PLC

This decision is a reminder that non owners of premises may owe a duty under the Occupiers Liability Act 1957 and that the action required by occupiers to discharge their duty depends upon the degree of the occupier’s control over the premises and the particular characteristics of the visitors – a higher standard being expected where visitors are disabled or elderly. It also reaffirms that there is no duty on occupiers to warn of obvious dangers.

The 83 year old claimant sought damages following a fall in a car park adjacent to a Waitrose store in Ruislip. The car park was owned by the local authority, London Borough of Hillingdon (‘LBH). John Lewis had no licence relating to the car park which was also used by persons visiting the local high street and GP surgery.

The claimant’s disabled wife parked their car in a disabled parking bay in front of the store entrance. On his return from the store, the claimant attempted to step on a kerb adjoining the parking bay but tripped and fell. He hit his head and suffered a brain injury.

The claimant chose not to issue proceedings against LBH which admitted they owned the car park but denied that the kerb was defective or dangerous. The case proceeded to a trial against the defendant only. The claimant alleged the defendant had breached its duty of care under the Occupiers Liability Act 1957. The defendant denied being an occupier of the car park and that the kerb posed a danger and that it had caused the claimant’s fall.

The claim failed. The trial judge found that the fall was a true accident and that nothing the defendant did or had failed to do caused it. The trial judge found that :

·       the defendant was a joint occupier of the car park with LBH;

·       the kerb itself was not defective;

·       the unique design of the parking bay, including the presence of the kerb immediately to the left of it, did present a danger to the class of visitors using that bay (the disabled) in breach of section 2(2) OLA 1957;

·       the claimant was fully aware of the presence of the kerb;

·       the danger posed by the kerb was obvious and no warning was required.

The claimant appealed to the Court of Appeal. The appeal failed. The Court of Appeal found the judge at first instance was correct in all respects and in particular, that the defendant was an occupier to the extent of their limited degree of control over the carpark. The defendant did owe a duty of care to visitors to the car park but that duty extended only to reporting issues to LBH. The defendant had no responsibility for the design, construction or layout of the parking bay. Furthermore, the kerb itself was not defective which negated any allegations that the defendant had failed to repair or maintain the premises. The Court of Appeal agreed that the kerb was there to be seen and there is no requirement on occupiers to warn of obvious dangers. Thus, there was no requirement on the defendant to warn visitors of the presence of the kerb. The kerb did not cause a trap – the claimant’s evidence was that he knew the kerb was there and was trying to step onto it. Sadly, he simply misjudged his manoeuvre by not lifting his foot sufficiently.

Bennion v Adventure Parc Snowdonia Limited

This High Court decision will be of interest to occupiers providing inherently risky recreational activities on their premises. On the facts of this case, it was sufficient for visitors to self-certify their abilities and it was not reasonable for the occupier to require every visitor to physically demonstrate a basic ability. In order to discharge the duty of care owed to participants in the activity, the occupier must correctly identify and provide for the risk inherent in the activity.

The claimant suffered tetraplegic injuries when surfing at an outdoor lagoon in Snowdonia. The lagoon opened in 2015 and was described as ‘the first of its kind’ measuring 300m long and 113m wide and designed to create waves for surfing. It catered for surfers of all abilities, had varying depths to create the waves and was 0.9m at its shallowest point in the reef area. Surfers were advised which part of the lagoon they should use according to their level of expertise and, before entering the water, surfers were required to watch a safety video and sign a statement recognising that surfing is a hazardous sport.

The claimant was an experienced surfer and had surfed at the lagoon 9 times over a 15-month period prior to the accident. He fell off his board and hit his head on the lagoon floor in the reef area. He brought a claim alleging that the defendant had breached its duty of care under section 2 of the Occupiers Liability Act 1957.

The High Court heard expert evidence regarding the design of the lagoon and the risk of a surfer hitting the reef floor at the accident location. There was no evidence that the design of the lagoon was flawed. There was no published safety standard applicable to a surf lagoon to assist the court. The claimant argued that the court should look to the guidance for swimming pools which dictated minimum depths of 1.5m but this was rejected by the trial judge who found that a depth of 0.9m was required to produce the waves and that increasing the depth was not possible.

The claim failed. The trial judge found that a duty of care was owed to the claimant and the duty had been discharged. The defendant had taken appropriate steps to mitigate the risks of injury by drawing surfers’ attention to the depth of the lagoon. Surfers also had to self-certify their level of ability before booking sessions on the lagoon. Appropriate risk assessments had been completed by health and safety professionals and the defendant had provided vigilant staff. Overall, the risk of injury was moderate. The only real steps that could have been taken to reduce or remove the risk were to remove Intermediate 2 as a surfing level or lower the reef. The cost of lowering the reef was prohibitive and the lagoon could not have operated with a minimum depth of water of 1.5m and so the social utility of the activity would be lost. The claimant had accepted the inherent risk when he chose to surf.

Our Team

Our Corporate Claims team are experienced in defending a wide range of public liability claims pursued under the Occupiers Liability Acts. For more information on these cases or advice, please contact one of our specialist lawyers.