Legal update - Occupiers' liability: Who's in charge?

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When an event is run, an insured must be clear who controls it. Caroline Elson looks at the tricky area of occupiers' liability claims and reports on a recent case.

Occupiers' Liability claims can be tricky to deal with, particularly when the identity of the occupier is unclear. The duties owed by occupiers concern both common law and the Occupiers' Liability Act 1957, in case of duties owed to visitors, or the Occupiers' Liability Act 1984, in the case of duties owed to trespassers and will turn on the facts of each case.

The Acts relate to anyone who owns or occupies, has possession of, or a 'sufficient degree of control' over premises or an area to be able to ensure the safety of the premises. An occupier might be a local authority, a company, an individual or a partnership. Under the Act, an occupier is required to take such care which, in all the circumstances, is reasonable to see that the visitor will be safe in using the premises for the purposes they are invited to be there.

Definition of premises
Premises, in the context of the legislation, means land rather than buildings. The Act does not define premises but the rules extend to a person occupying or having control over "any fixed or moveable structure, including any vessel, vehicle or aircraft". Premises have been considered by the courts to include, for example, a grandstand, a football stadium, an electricity pylon, a seaside promenade, a lift, railway lines, an airport runway, expanses of water and scaffolding.

In the early case of Wheat v E Lacon & Co (1966), the House of Lords said that the foundation of occupiers' liability is occupational control. The court also found it was not necessary for a person to have exclusive occupation or control and may share the control with others. Two or more may be 'occupiers'.

The apportionment of responsibility between two occupiers was the main issue in a recent case heard at the Court of Appeal. In Furmedge and Collings v Chester-le-Street District Council and Brouhaha International Limited and Maurice Agis (2011), a serious accident occurred at an interactive public art event, in a park for which the local authority were responsible. The event took place in a substantial inflatable structure called Dreamspace V. Members of the public were able to walk through the tunnels and voids in the structure and listen to music. The structure was tethered to the ground by ropes. On that day a gust of wind caused the structure to break free from its anchorage and, as a result, two people died.

The local authority admitted liability as it had not carried out a proper risk assessment and the claims were settled out of court. The local authority then pursued Brouhaha for a contribution/indemnity. Brouhaha was a company that organised arts events and managed the transportation and assembly of the inflatable structure.

Apportioning liability
The Court of Appeal had to consider whether Brouhaha was an 'occupier' within the meaning of the 1957 Act. If it was, had its employees breached their duties in relation to the erection or evacuation of the structure and how should liability be apportioned between the local authority and Brouhaha?

The court considered that the event took place on local authority land and was organised by Brouhaha. The company was found to have been an occupier, as its employees played an active and controlling role in its construction. They were working as stewards with control over its use. They had previous knowledge of the instability of the structure in windy conditions following a previous exhibition.

Both parties were found to be at fault in failing to recognise the inadequacy of the risk assessment provided by Maurice Agis, the artist, creator and manufacturer of Dreamspace V, who could not be pursued due to his lack of insurance or funds, and in failing to take steps to ensure that the structure was provided with sufficient anchors.

Brouhaha was found to have a greater responsibility, assessed at 55%, with 45% attributed to the local authority. It was the company's direct knowledge of the structure's susceptibility in windy conditions that was taken into account in attributing a higher apportionment of the blame.

It is not the occupier's responsibility to make sure that every visitor is always completely safe but the emphasis is on what is reasonable. When there is more than one potential occupier, the starting point is to look at the issue of control. It may not just be the owners of the land who will be regarded as an occupier. To be found to be an occupier there must be a sufficient degree of control over premises to be able to ensure safety and to appreciate that a failure to take reasonable care may result in an injury. Control of the premises does not need to be entire or exclusive.

Insurers should be aware that where their insured, be it a landowner or a tenant, invites a third party to hold an event on their land, they are clear who controls the running of the event, as this will affect an insured's potential liability as occupier under the Occupiers' Liability Act.

Occupiers' liability advice
If a third party has been invited to hold the event, insurers should check whether this means their insured has passed on all responsibility for safety to the third party.

If they have not, then the insured should demonstrate they have made sufficient checks and have systems in place that cover the premises.

Has a director or manager been appointed to oversee the event? Who will be running the event on the day? Do they remain in control of the premises and is there a system in place to check the area for obvious hazards?

Documented risk assessments, method statements and documents allocating responsibility are crucial bits of paperwork, which should be completed prior to an event taking place.

Caroline Elson is a solicitor in the public sector unit at Langleys

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