Breach of duty – Occupier’s liability – Apportionment of liability – Deaths and injuries caused when inflatable interactive artwork breaking free of anchorage in gust of wind – Defendant council accepting liability for failure to recognise inadequacy of risk assessment provided by designer of artwork – Defendants seeking to apportion liability with company responsible for erection and stewarding – Whether company an “occupier” under Occupiers’ Liability Act 1957 – Apportionment granted
In July 2006, the Dreamspace V interactive art exhibition, consisting of an inflatable PVC structure, broke free from its anchorage in a gust of wind while installed at a park in Chester-le-Street, County Durham. This resulted in claims for compensation by the first and second claimants, flowing from the deaths of two people following injuries sustained when the structure left the ground, and by the third claimant, who was also injured. Those claims were settled out of court.
The defendant council were responsible for the park and had invited the second-named third party (A), who had designed the artwork, to display it there. They brought proceedings under CPR 20 to determine the apportionment of liability, under section 2(1) of the Civil Liability (Contribution) Act 1978, as between themselves and the first named third party, BI, a project manager and organiser of arts events. BI had been involved in constructing and erecting the structure when it was exhibited in Liverpool and its employees had participated in dismantling it, moving it to Chester-le-Street, where they re-erected it and acted as stewards in and around the structure while it was open to the public. Since A had not money to discharge any civil liability claim and he was uninsured, the defendants and BI were the only two effective parties to the action.
It was accepted that A had provided an inadequate risk assessment of the installation. The proceedings centred on the extent to which the defendants or BI should have assessed and addressed that issue for themselves or raised questions in respect of it.
The defendants accepted liability for failing to recognise the inadequacy of the risk assessment or to take steps to ensure the adequacy of the anchorage, but contended that BI shared that liability. BI denied that it had been an “occupier” of the structure, such as to owe a duty of care to visitors under the Occupiers’ Liability Act 1957 or that there had been a breach of duty by its employees giving rise to vicarious liability.
Held: Apportionment was granted.
(1) The same premises could have more than one occupier for the purposes of the 1957 Act. The issue of who was an occupier was fact-sensitive. Occupation would normally require a degree of physical control over the premises, even if it was not entire or exclusive. An appreciation that a failure to take care could result in injury to a party using the premises was another factor. BI had become an occupier of the structure through a combination of the following factors: (i) its employees had played an active and central role in the initial construction of the units comprising the structure, albeit under another party’s direction, such that they had some degree of physical control over the construction process; (ii) they had erected the final structure in Liverpool, dismantled it and transported it to Chester-le-Street and erected it there; and (iii) they had acted as stewards inside and outside the structure, playing a part in controlling who went into it and how they behaved while inside, thereby exercising some degree of physical control over the premises. Accordingly, BI, through its employees, had become an occupier within the law. It should have appreciated that any failure on its part to exercise with regard to the structure could injure to people using it. In addition, it ought to have carried out its own risk assessment or, at least, ought not to have relied on A’s inadequate assessment. Further, it had become aware while in Liverpool, of the structure’s potential instability in windy conditions and could have addressed the issue of safety. Those matters added force to the proposition that it should be treated as an occupier of the structure for the purposes of the 1957 Act. As an occupier, BI owed a wider duty of care to those who entered the structure in consequence of the work carried out by its employees.
(2) With regard to apportionment of liability, each of the two parties before the court was significantly at fault in not recognising the inadequacy of the risk assessment and in failing to take steps to ensure that the anchorage of the structure was secure for all reasonably foreseeable conditions. Each party was responsible in the same way for the same damage, which would point towards an equal apportionment were causation the sole factor. However, in determining a “just and equitable” apportionment within section 2(1) of the 1978 Act, acts and omissions that were not causative of loss could also be taken into account: Re-Source America International Ltd v Platt Site Services Ltd [2004] EWCA Civ 665; [95 Con LR 1 and Brian Warwicker Partnership plc v HOK International Ltd [2005] EWCA Civ 962; 103 Con LR 112 applied. Although the defendants could have gained knowledge of the potential for instability at an early stage had they looked into the risk assessment more carefully, BI had direct knowledge of potential instability before the structure was transferred to Chester-le-Street and had done nothing to alert the defendants to that matter. That factor justified imposing a greater liability on BI. An apportionment of 55% to BI and 45% to the defendants was appropriate.
Lord Faulks QC and Andrew Warnock (instructed by Barlow Lyde & Gilbert LLP) appeared for the defendant and Part 20 claimant; Stephen Grime QC and Christopher Kennedy QC (instructed by DWF LLP, of Manchester) appeared for the first named third party; the second named third party did not appear and was not represented.
Sally Dobson, barrister
