Defendants allowing own child, W, to play on flat roof belonging to another – Roof accessible from bedroom window – Plaintiff child and W gaining alternative access to roof – Plaintiff falling from roof – Whether defendants exercising sufficient degree of control so as to be liable as occupiers of roof
The defendant couple (H and W) occupied a flat above a supermarket where H was employed on terms that permitted his family to live in the flat under a service occupancy. The main bedroom looked out on a largely flat roof (not included in the service accommodation), which covered a row of outbuildings forming part of the supermarket. Unlike the rest of the roof, the part most distant from the bedroom window (the far end) was not entirely bounded by walls. The far end also possessed a sloping feature (the slope) not found elsewhere on the roof. Lacking anything in the nature of a garden, W permitted her nine year old son, W, to play on the roof. W had strict instructions not to play at the far end and not invite other children on to the roof. None of these matters was known to H’s employer, who owned the roof. On the day of the accident giving rise to the proceedings, the plaintiff, then aged eight, was playing with W in an adjacent garden with the permission of the owner, who employed the plaintiff’s mother as a cleaner. From the garden the plaintiff and W accessed the roof by climbing a wall and, having reached the roof, began to use the slope as a slide. The plaintiff fell off the roof on to the yard below and sustained severe head injuries. The plaintiff brought proceedings against H, W and H’s employer. The trial judge held that none of the defendants was liable. The plaintiff appealed against the judgments given in favour of H and W.
Held The appeal was dismissed.
The plaintiff had correctly relied on Wheat v E Lacon & Co Ltd [1966] AC 552 for the proposition that more than one person could be in occupation of premises for the purpose of the Occupiers’ Liability Act 1957. The same applied to cases brought under the Occupiers’ Liability Act 1984. However, the speeches in Wheat made it plain that the defendant had to have exercised a degree of control sufficient to put him under a duty of care towards those who came on to the premises: see Salmond on Torts 10th Ed p465. The judge was right to find that the defendants’ conduct as regards the roof did not amount to such exercise
Lawrence Caun (instructed by Buglear Bate & Co, of Woking) appeared for the plaintiff; Colin Nixon (instructed by Winward Fearon) appeared for the defendants.
Alan Cooklin, barrister
