Occupiers’ Liability Act 1984(1984 Act) – Tenants of flat accessing roof of garages not included in demise – Claimant falling through skylight and sustaining injury – Damages claim against landlords – Section 1(1)(a) of 1984 Act – Whether danger owing to state of premises or activity of claimant – Claim dismissed
The claimant was one of three tenants of a first-floor flat that was let by the defendant landlords on a shorthold tenancy. The flat was abutted by a row of garages the flat roof of which was inset with perspex skylights. The roof was level with the bottom of the flat’s living-room window, such that it was possible to step out from the window onto the roof, which had no handrail or other guard. The tenancy was confined to the flat itself and did not include any part of the garages.
The tenants did not venture out onto the roof during the first few months of their tenancy. At one point, the landlord arranged for workmen to carry out works on the roof, which they accessed via the window. Subsequently, during the course of a party at which alcohol was consumed, the claimant and some of her guests went out onto the roof late at night to dance. The claimant stepped onto a perspex skylight and fell through it, sustaining serious injuries.
The claimant brought proceedings against the defendants, claiming that her injuries had been caused by their negligence and/or breach of statutory duty in, inter alia, failing to ensure that the skylight was safely covered or to warn the tenants of the unsafe condition of the roof. She contended that it had been reasonably foreseeable that the tenants of the flat were likely to go onto the roof. An issue arose as to whether any duty to persons other than the defendants’ visitors could arise “by reason of any danger due to the state of the premises or to things done or omitted to be done on them” within section 1(1)(a) of the Occupiers’ Liability Act 1984. The defendants submitted that the risk had arisen not from the state of the premises, as section 1(1)(a) required, but from the claimant’s activities. They argued that the court should take account of the fact that the claimant and her friends had gone outside when it was dark, when they were not sober and had danced around a skylight without looking carefully at what they were doing.
Held: The claim was dismissed.
On the evidence, the claimant had not proved that the state of the premises, namely the roof and skylights, was dangerous within the meaning of section 1(1)(a). There was no evidence of disrepair or that the use of perspex to cover the skylights was inappropriate. Although they had received no warning from the defendants not to venture onto the roof, they had not been given permission to access it for any purpose. The claimant and her co-tenants were to be treated as trespassers for the purposes of the 1984 Act in circumstances where the garage roof was not included within the demised premises and the tenants had no authority from the landlords to go onto it, certainly not after dark, after consuming a certain amount of alcohol. The more people that indulged in a dangerous activity together, the more chance there was that one of them would lose their concentration. The defendants’ submissions were to be preferred: Young v Kent County Council [2005] EWHC 1342 (QB) distinguished.
Stephen Killalea (instructed by Irwin Mitchell, of Birmingham) appeared for the claimant; James Couser (instructed by Lyons Davidson, of Birmingham) appeared for the defendants.
Sally Dobson, barrister
