Roles V Nathan - Judgment

"That negligence" -- that is to say, of the chimney sweeps -- "consisted in the knowledge that there was gas about, or probably would be, the way they ignored explicit warnings and showed complete indifference to the danger which was pointed out to them in plain language, and this strange indifference to the fact that the fire was alight, when Mr. Collingwood had said it ought not to be, until the sweep-hole had been sealed."

The occupier now appeals and says that it is not a case of negligence and contributory negligence, but that, on the true application of the Occupiers' Liability Act 1957, the occupier was not liable at all. This is the first time we have had to consider that Act. It has been very beneficial. It has rid us of those two unpleasant characters, the invitee and the licensee, who haunted the courts for years, and it has replaced them by the attractive figure of a visitor, who has so far given no trouble at all. The Act has now been in force six years, and hardly any case has come before the courts in which its interpretation has had to be considered. The draftsman expressed the hope that

"the Act would replace a principle of the common law with a new principle of the common law; instead of having the judgment of Willes J. construed as if it were a statute, one is to have a statute which can be construed as if it were a judgment of Willes J."

It seems that his hopes are being fulfilled. All the fine distinctions about traps have been thrown aside and replaced by the common duty of care. "The common duty of care," the Act says, "is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor" -- note the visitor, not the premises -- "will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there."

That is comprehensive. All the circumstances have to be considered. But the Act goes on to give examples of the circumstances that are relevant. The particular one in question here is in subsection (3) of section 2:

"The circumstances relevant for the present purpose include the degree of care, and of want of care, which would ordinarily be looked for in such a visitor, so that (for example) in proper cases ... (b) an occupier may expect that a person, in the exercise of his calling, will appreciate and guard against any special risks ordinarily incident to it, so far as the occupier leaves him free to do so."

That subsection shows that General Cleaning Contractors v. Christmas A.C. 180; 2 W.L.R. 6; 2 All E.R. 1110, H.L. is still good law under this new Act. There a window cleaner (who was employed by independent contractors) was sent to clean the windows of a club. One of the windows was defective; it had not been inspected and repaired as it should have been. In consequence, when the window cleaner was cleaning it, it ran down quickly and trapped his hand, thus causing him to fall. It was held that he had no cause of action against the club. If it had been a guest who had his fingers trapped by the defective window, the guest could have recovered damages from the club. But the window cleaner could not do so. The reason is this: the householder is concerned to see that the windows are safe for his guests to open and close, but he is not concerned to see that they are safe for a window cleaner to hold on to. The risk of a defective window is a special risk, but it is ordinarily incident to the calling of a window cleaner, and so he must take care for himself, and not expect the householder to do so.

Likewise in the case of a chimney sweep who comes to sweep the chimneys or to seal up a sweep-hole. The householder can reasonably expect the sweep to take care of himself so far as any dangers from the flues are concerned. These chimney sweeps ought to have known that there might be dangerous fumes about and ought to have taken steps to guard against them. They ought to have known that they should not attempt to seal up a sweep-hole whilst the fire was still alight. They ought to have had the fire withdrawn before they attempted to seal it up, or at any rate they ought not to have stayed in the alcove too long when there might be dangerous fumes about. All this was known to these two sweeps; they were repeatedly warned about it, and it was for them to guard against the danger. It was not for the occupier to do it, even though he was present and heard the warnings. When a householder calls in a specialist to deal with a defective installation on his premises, he can reasonably expect the specialist to appreciate and guard against the dangers arising from the defect. The householder is not bound to watch over him to see that he comes to no harm. I would hold, therefore, that the occupier here was under no duty of care to these sweeps, at any rate in regard to the dangers which caused their deaths. If it had been a different danger, as for instance if the stairs leading to the cellar gave way, the occupier might no doubt be responsible, but not for these dangers which were special risks ordinarily incidental to their calling.

Even if I am wrong about this point, and the occupier was under a duty of care to these chimney sweeps, the question arises whether the duty was discharged by the warning that was given to them. This brings us to subsection (4) which states:

"In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) -- (a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe."

We all know the reason for this subsection. It was inserted so as to clear up the unsatisfactory state of the law as it had been left by the decision of the House of Lords in London Graving Dock Co. v. Horton A.C. 737; 1 T.L.R. 949; 2 All E.R. 1, H.L. That case was commonly supposed to have decided that, when a person comes onto premises as an invitee, and is injured by the defective or dangerous condition of the premises (due to the default of the occupier), it is nevertheless a complete defence for the occupier to prove that the invitee knew of the danger, or had been warned of it. Suppose, for instance, that there was only one way of getting into and out of premises, and it was by a footbridge over a stream which was rotten and dangerous. According to Horton's case, the occupier could escape all liability to any visitor by putting up a notice: "This bridge is dangerous," even though there was no other way by which the visitor could get in or out, and he had no option but to go over the bridge. In such a case, section 2 (4) makes it clear that the occupier would nowadays be liable. But if there were two footbridges, one of which was rotten, and the other safe a hundred yards away, the occupier could still escape liability, even today, by putting up a notice: "Do not use this footbridge. It is dangerous. There is a safe one further upstream." Such a warning is sufficient because it does enable the visitor to be reasonably safe.

I think that the law would probably have developed on these lines in any case; see Greene v. Chelsea Borough Council 2 Q.B. 127, 139; 3 W.L.R. 12; 2 All E.R. 318, C.A. where I ventured to say "knowledge or notice of the danger is only a defence when the plaintiff is free to act upon that knowledge or notice so as to avoid the danger." But the subsection has now made it clear. A warning does not absolve the occupier, unless it is enough to enable the visitor to be reasonably safe.

Apply subsection (4) to this case. I am quite clear that the warnings which were given to the sweeps were enough to enable them to be reasonably safe. The sweeps would have been quite safe if they had heeded these warnings. They should not have come back that evening and attempted to seal up the sweep-hole while the fire was still alight. They ought to have waited till next morning, and then they should have seen that the fire was out before they attempted to seal up the sweep-hole. In any case they should not have stayed too long in the sweep-hole. In short, it was entirely their own fault. The judge held that it was contributory negligence. I would go further and say that under the Act the occupier has, by the warnings, discharged his duty.

I would therefore be in favour of allowing this appeal and entering judgment for the defendants.

The opening words of subsection (4), of which paragraph (a) is material, read as follows: "In determining whether the occupier of premises has discharged the common duty of care to a visitor, regard is to be had to all the circumstances, so that (for example) -- (a) where damage is caused to a visitor by a danger of which he had been warned by the occupier, the warning is not to be treated without more as absolving the occupier from liability, unless in all the circumstances it was enough to enable the visitor to be reasonably safe."

Substantially the same facts provide the plaintiffs with their answer to the defendant's argument under this subsection. The deceased received adequate warning from Collingwood, and if the defendant's agents had heeded the warning, the warning would have enabled the deceased to be reasonably safe. But the defendant's agents themselves, in disregard of the warning, did the dangerous act of lighting the fire before the access vents had been sealed. That created the concentration of carbon monoxide in the alcove. That was something done by the defendant's agents, and it could not be undone by the deceased, however much they heeded Collingwood's warning. In these circumstances, the warning did not enable the deceased to be reasonably safe; and in my view, therefore, this paragraph of the subsection does not defeat the widows' claim.

Accordingly, I agree with the judge's decision on the liability of the defendant, and do not have to consider his decision as to contributory negligence because that is not disputed.

I would have dismissed the appeal, but that is a minority view, and of course, the majority view of my brethren will prevail, so that the appeal will be allowed.